
    Pepper v. Sidwell, Administrator.
    In an action against an administrator, the objection that the claim sued on was not presented for allowance before the action was brought, is waived, where the administrator joins issue and goes to trial on the validity of the claim without objection.
    Error to the District Court of Brown County.
    The plaintiff, William A. Pepper, brought an action against W. N. Raney and N. H. Sidwell, as administrator of the estate of J ames Sidwell, deceased, on a promissory note joint in form and dated April 1, 1866, by which said Raney and James Sidwell promised to pay to the order of the plaintiff, the sum of $1,218.50, with interest at ten per cent, at twelve months from date. The petition did not aver that the note or claim had been exhibited to the administrator for allowance, and by him disputed or rejected, nor that eighteen months had expired from the date of the administration bond, or the further time allowed by the court for the collection of the assets of the estate of James Sidwell; nor were facts stated showing the case to fall within any of the exceptions of section 98 of the administration act.
    
      No demurrer was interposed to the petition, and the only-defense set up by the answer of N. H. Sidwell, administrator, was that James Sidwell was only a surety on the note, and that after the sam« became due, the plaintiff and Raney, the principal mater, entered into a valid agreement for the extension of the time of payment of the note without the consent of said intestate.
    Wherefore, he prayed to be dismissed with costs.
    Issue was joined by a reply, and the case went to trial to a jury. On the trial, the defendant Sidwell proved, without objection, that the probate court extended the time for the settlement of said James Sidwell’s estate, first for one year from March 24, 1868, and again from February 10, 1871, until October 10 of the same year. The suit was brought long before this time expired.
    The court was ashed by the defendant Sidwell, to instruct the jury as follows:
    “ If the jury find from the evidence in the ease, that the said defendant was appointed administrator in the month of October, 1866, and that on the 26th day of March, 1868, the probate court of Brown county, Ohio, on application of said administrator, gave him the additional time of one year to collect the assets of said estate, and that said time had not expired at the date of the commencement of this action against said administrator, then the verdict of this jury must be for the said defendant.”
    The instruction was refused and an exception noted. The jury found a verdict for the plaintiff, on which judgment was rendered in the court of common pleas, but which the district court reversed. This is a petition in error to reverse the judgment of the district court.
    
      White <& Waters, and Thomas <& Thomas, for plaintiff in error, cited: Gdlmin v. State, 12 Ohio St. 60, 65, 66 ; Nichols v. Patterson, 4 Ohio, 200-204; Mcursden v. Soper, 11 Ohio St. 503-506; Bisher v. Bichareis, 9 Ohio St. 495-498; Fee v. Big Scmdy Iron Go., 13 Ohio St. 563 ; Fvcms v. lies, 7 Ohio St. 233-236 ; Highway v. Pendleton, 15 Ohio, 735-753 ; Bicic v. State, 20 Ohio St. 228, 230.
    
      
      London c& Yov/ng and John G. Marshall, for defendant in error, cited: 1 Swan & Oritchfield, 584, § 98'; Keenam, v. Suxton, 13 Ohio, 41; Woodrow v. State, 1Y Ohio, 161, 169 ; Green v. State, 2 Ohio St. 5Y4; LLamerSke v. Kramer, 12 Ohio St. 252; Wright, 414; Stambaugh v. Smith, 23 Ohio St. 593, 594.
   Boynton, C. J.

We suppose that the judgment of the court of common pleas was reversed by the district court upon the ground that the claim sued on had not been presented to the defendant in error for allowance as a valid claim against the estate of James Sidwell, it having been shown in evidence •without objection, that the action was brought before the expiration of the time allowed by the probate court for the collection of the assets of the estate.

The petition contained no averment that the note or claim sued on had been exhibited to the administrator, and had been disputed or rejected by him; nor that the period of eighteen months, or the further time allowed by the court, if any, to collect the assets of the estate, had elapsed, before the commencement of the action; nor was there any averment either that the estate had been represented to be insolvent, and that the action was brought to settle the validity of a contested claim; or that the claim was one that would not be affected by the insolvency of. the estate, if such insolvency in fact existed. But the defendant neither demurred to the petition, nor didhe take any objection by answer that the claim had not been presented for allowance. On the contrary, he set up a defense to the merits of the claim, and went to trial on the issue joined thereto. In view of these facts, we think he should be held to have waived the right to rely on the failure of the plaintiff to show a presentation and rejection of the claim, as a defense to the action. That a petition against an administrator is defective that does not show that the claim was presented and disallowed, or that the necessary time has preceded the commencement of the action, was held in Hammerle v. Kramer, (12 Ohio St. 252); and it was also there held, that the petition might be demurred to as not stating facts sufficient to constitute a cause of action against the administrator. In commenting on the question as one of practice, Scott, C. J., said : “ As under the provision of this section, no action can be maintained against an administrator, by a creditor, till after the lapse of eighteen months from the date of the bond, unless in certain specified cases, we think the petition of the creditor should aver the necessary lapse of time. This is a condition essential, gmeralh/, to the plaintiff’s right of action. It is also affirmative in its character, and if denied, the burden of proof is on the plaintiff, and we think, unless it is averred, the plaintiff does not show even a prima facie right to sue.” This language had reference to the right of the administrator to raise the question of the plaintiff’s right to sue by demurrer, where the petition did not show that the claim had been presented and rejected, or the lapse of the time necessary to the maintenance of the action.

To the rule there laid down we fully adhere. In that case, the objection was timely taken and insisted on, that .the petition failed to show such facts as rendered the administrator liable to an action at the time the action was brought. The case, however, does not support the proposition that the administrator, who takes no objection either by demurrer or answer to the failure of the pláintiff to bring the case within the statute, may go to trial under a defense by which he contests the validity of the claim sued on, and in case of failure in such defense, may fall back and defeat a recovery on the ground that the claim was not presented for allowance, and consequently, that the action was prematurely brought. The provision, of the statute exempting the administrator from liability to be sued, until certain preliminary steps are taken, or a certain period of time has elapsed, is a privilege that may be waived. The object of the statute is to afford the administrator an opportunity to allow all valid claims against the estate, and thereby avoid litigation and expense. It was designed to protect estates from unnecessary costs and vexation where the administrator is satisfied that the claim is just and valid. Here the validity of the claim was in fact disputed, at the trial, and the liability of the defendant thereon denied, and the plaintiff subjected to large-expense and troftble in resisting a defense made to its merits:

To subject him to the expense and hazard of a trial, and then deprive him of a judgment, notwithstanding the issues were determined in his favor, upon the ground that tbe petition is defective in the particular mentioned, would be manifestly unjust. The conduct of the administrator, in contesting the claim, shows that the estate lost nothing by the omission to present the claim for allowance. In our judgment, where the petition fails to show the disallowance of the claim, or that the time allowed for the collection of the assets of the estate elapsed before the commencement of the action, and the defendant takes no objection either by demurrer or answer, but goes to trial upon issues in which he contests the validity of the claim, it is too late to insist on the non-presentation of the claim, or the premature bringing of the action, as a defense to the plaintiff’s right to recover. Other questions are made by the record, none of which, in our opinion, justified the district court in reversing the judgment of the court of common pleas

Judgment of the district court reversed and that of the common fleas affirmed.  