Crouse v. Frybarger.

3. SPECIAL STATUTES OF LIMITATION Cannot be Waived.

General statutes of limitation may be waived by an executor or administrator, but statutes of limitation with respect to actions against executors or administrators cannot be waived. Therefore, the allowance by an administrator de bonis non of a claim on a promissory note which was barred at the time by Sec. 6113, Rev. Stat., providing that no executor or administrator shall be held to answer to a suit of a creditor of the deceased unless commenced within four years, is a nullity.

4 PURPOSE OF SEc. 6113, REV. STAT., and Similar Laws.

The purpose of Sec. 6113, Rev. Stat., providing that "no executor or administrator, after having given notice of his appointment, as provided in this chapter, shall be held to answer to the suit of any creditor of the deceased unless it be commenced within four years from the time of his giving bond as aforesaid, except in cases hereinafter mentioned," and of statutes of this character, is to fix the status of estates and property of decedents, so that the same may be dealt with freely and safely, and after claims are barred under such statutes it should not be possible to review or revive them so as to sweep away property acquired otherwise from the heirs or, in good faith, the estate.

5. SECTION 6113, REV. STAT., RUNS FROM QUALIFICATION.

Section 6113, Rev. Stat., the four years' statute of limitation applicable to executors and administrators begins to run from the time of the qualification of such officers uot from the rejection or disallowance of the claim upon requisition under Sec. 6098, Rev. Stat. The four years' statute is not applicable to cases where the claims are rejected; in such cases the six months' statute, Sec. 6098, Rev. Stat., is applicable.

HEARD ON ERROR.

C. P. Wickham, for defendant.

A. M. Beattie, for plaintiff, cited:

Statute of limitations, pleading: 13 Ency. Pl. & Pr., 186; 13 Am. & Eng. Ency. Law, 689, 690.

Administration cannot waive statute: Minor v. Aylesworth, 18 Fed. Rep., 199; 3 Williamson. Exrs., p. 1803, n. Q; Pulliam v. Pulliam, 10 Fed. Rep., 74, 75, 76.

Object of such statute: Harter v. Taggert's Exrs., 14 Ohio St., 122; 3 Williams on Exrs., p. 1946, n. U.; Ib. 2023, n. T.; Favorite v. Boohers, Admr., 17 Ohio St., 548.

Operation and in general: Angell on Limitation, Sec. 170; Daws v. Shed, 15 Mass., 6, 7; Ex parte Allen, 15 Mass., 58, 60; Pollock v. Pollock, 1 Circ. Dec., 408; Gilbert v. Little, 2 Ohio St, 156.

Administrator de bonis non not a party: Sec. 6098, Rev. Stat.; Green v. Street Railway, 62 Ohio St., 67; Fullerton v. Davis, 1 Circ. Dec., 320, 822 (1 R. 572).

Proof of notice of appointment: Green v. Gill, Exr., 8 Mass., 111; Henry v. Estay, 15 Gray, 336.

PARKER, J.

This is a proceeding in error brought to obtain a reversal of the judgment of the court of common pleas.

The action below was brought by Fannie Leggett and Louisa H. Frybarger against the plaintiff in error here on a promissory note which reads as follows:

"$800.00

Norwalk, Ohio, Aug. 16, 1880.

"One year after date we promise to pay to the order of Mrs. Emily Baker eight hundred dollars at First National Bank. Value received with interest at eight per cent. per annum. 'D. A. Baker, Jr.,

""

"W. G. Baker,

"D. A. Baker, Security."

Huron Circuit Court.

Fannie Leggett, one of the plaintiffs below, having died while the action was pending, Carrie Needham was substituted as administratrix of her estate. L. W. Wickham, as administrator de bonis non, was made a party defendant because he represents the estate of D. A. Baker, deceased, D. A. Baker being one of the makers and a surety upon the note. Mr. Crouse was made a party defendant because he had acquired from one of the heirs of D. A. Baker a part of the land of which D. A. Baker died seized. An effort was being made by L. W. Wickham, as administrator, to enforce the payment of this note and to that end he sought to obtain a fund by bringing to sale the land purchased by Crouse. Crouse gave an undertaking as provided by Sec. 6098, Rev. Stat., whereupon Wickham, as administrator, rejected the claim and therefore an action was brought in pursuance of that statute and Crouse was joined as a defendant.

The history of the transactions leading up to the beginning of this suit should be stated.

It appears that D. A. Baker, Senior, died on March 16, 1882. His will was admitted to probate on March 20, 1882. The persons nominated in the will qualified as executors and gave notice of their appointment in the Norwalk Chronicle, of the issues of March 23, 30 and April 6, 1882. These persons were D. A. Baker, Jr., W. G. Baker, George E. Baker and Frederick Baker, who were the sons of D. A. Baker, Sr. It appears that these executors made their final settlement of the estate, on March 29, 1883, and at this time they had on hand for distribution nearly twelve thousand dollars, which was afterwards duly distributed. Being advised, and believing that notice of the appointment of the executors had never been published as required by law, and that, therefore, the rights of these creditors had not been barred, Mr. Wickham permitted himself to be made administrator de bonis non and allowed the claim, but it afterward transpired that the notice had in fact been published. Mr. Wickham was not appointed administrator de bonis non with the will annexed until January 23, 1895. The note sued on, which I have read, was dated August 16, 1880, and was due one year after date. D. A. Baker, Jr., and W. G. Baker, two of the executors of the will of D. A. Baker. Sr., are principals on the note, D. A. Baker, Sr., being, as I have before stated, a surety.

It appears from the petition, which sets forth a copy of the note and the endorsements upon it, that the interest upon this note was paid year by year from the time it was given until October 16, 1893, when $50.00 interest was paid, but no part of the principal had been paid.

It does not appear that the note was ever presented for allowance to the executors of the estate or that it was ever formally allowed by them; and these payments of interest do not appear to have been made by any of the executors as such, or out of the funds of the estate, but they appear to have been paid by the two persons who were executors, and at the same time were the principal makers of this note, out of their own funds and on their own personal accounts.

On January 31, 1895, L. W. Wickham, as administrator de bonis non, endorsed upon this note or upon the claim, an allowance of the claim against the estate of D. A. Baker, Sr. Mr. Crouse became owner of a part of the original estate of D. A. Baker, Sr., in December, 1888, by conveyance from George E. Baker, to whom this part had been set off in partition proceedings. This claim was disallowed and rejected by Mr. Wickham, as administrator de bonis non, in pursuance of and in com

Crouse . Frybarger.

pliance with this requisition on June 15, 1898. Plaintiffs were duly notified of this action by Mr. Wickham, and they filed their petition upon the note on December 3, 1898, but with the petition no præcipe for summons was filed, and no summons was even issued upon the petition, but a præcipe was filed on March 29, 1899, asking for summons to be issued for the defendant Crouse, directed to the sheriff of Summit county, and this summons appears to have been duly issued and to have been served upon Crouse on March 30, 1899. No præcipe was ever filed for summons to be issued for Wickham, as administrator, and he does not appear to have formally entered his appearance.

Whether he by his conduct subsequently entered his appearance, is one of the questions in dispute in the case.

Within three days after judgment was rendered by the court in favor of the plaintiffs on this note, Crouse filed a motion for a new trial on various grounds, and at the same time filed a motion to set aside and vacate the judgment for the reason that Wickham, as administrator de bonis non, had not been made party to the action; and on the same day that these motions were filed Wickham, as administrator de bonis non, on his own motion and without any consultation or agreement with Mr. Crouse about the matter, filed a motion for a new trial setting forth therein substantially the same grounds as those contained in the motion of Mr. Crouse.

It is contended on behalf of the plaintiffs in error, that this claim was barred by various statutes of limitation and that therefore the judgment of the court below is wrong and should be reversed.

The statutes relied upon are, first, Sec. 4980, Rev. Stat., which provides a limitation of fifteen years upon written contracts. Section 6113, Rev. Stat., which, at the time this cause of action accrued, provided a limitation of four years as to actions against administrators (this has subsequently been changed to two years) and Sec. 6098, Rev. Stat., to which I have already referred, which provides that after a claim has been rejected upon requisition of an heir or a creditor, the claimant shall be required to bring an action within six months of the time of such rejection.

It is contended on behalf of the defendant in error that the last mentioned statute of limitations is not well or sufficiently pleaded, and that therefore it had not been effectively interposed and can not be taken into account under these pleadings.

The answer of Mr. Crouse contains this paragraph: "And this defendant further says that if there ever was anything due from the said Daniel A. Baker, Sr., to any one upon said note, the right of recovery has been long since barred, as against said Daniel A. Baker, Sr."

All of the facts of this transaction, or substantially all that I have recited, had been set forth either in the petition, or in the answer preceding this paragraph, so that they all appear in the pleadings with their dates.

In Jones v. Jones, 41 Ohio St., 417, Sec. 6098, Rev. Stat., was pleaded, and this is said of the method in which it was pleaded and of its sufficiency: "Where an executor pleaded as one defense, failure to sue within six months after presentation and rejection of the claim, and also as a separate defense, that the claims were 'not sued upon within the time allowed by law and were therefore barred,' having preceded said averment by a statement of facts showing the

17 O. C. D. Vol. 12

Huron Circuit Court.

lapse of four years before suit, and evidence was before the jury tending to support the four years' bar, it was error for the court to charge that the answer applied only to the bars of six months and six years."

In the course of the opinion, Granger, Chief Justice, says, on page 421: "But it is urged that the first defense as stated presented no fact; that it averred nothing but matter of law. If this was so, the court did not err in treating it as no defense."

"The answer begins with a statement of the appointment and qualification of the executor on the 20th day of August, 1872, under a will admitted to probate on that day; that the executor advertised his appointment, settled the estate, paid its debts, and on May 24, 1873, filed his final account, which was duly advertised according to law. This preliminary statement should be treated as part and parcel of each of the defenses that follow it, so far as they are relevant thereto. The petition had stated that the claims had been presented to the executor on June 22, 1876. It was unnecessary for the defendant to re-state any fact set up in the petition. Hence, taking that date furnished by the petition, the preliminary general statement in the answer, and the three lines specially designated, first cause of defense' together, we have the following defense, to wit: The qualification of the defendant as executor was completed on August 20, 1872; the plaintiff's claims were such that he could have called for their allowance as due at any time after said date; he never presented them until June 22, 1876; he never sued upon them until October 6, 1876; and 'the same were not presented for allowance, or sued upon within the time allowed by law, and are therefore barred.' It is true, a shorter statement would have been sufficient. Instead of giving dates that showed the lapse of more than four years, the pleader might have written that, 'the action was not commenced within four years from the time,' etc.

"Possibly the statement of the appointment 'in pursuance of the provisions of said will' may be so indefinite, that a motion to make the first defense definite and certain, ought to have been sustained if made. But no such motion was made. The trial proceeded as if the defense was sufficient until the charge of the court in effect struck it from the answer."

That was held to be sufficient and we think the pleadings set forth the matter as fully and as distinctly in this case as they did in that. There is a good deal of authority to the effect that these special statutes governing administration need not be specially pleaded; but even if this limitation is required to be pleaded as in the case of an ordinary statute of limitation, we think Jones v. Jones, supra, affords sufficient authority for saying that it was well pleaded.

I have pointed out that after this claim was disallowed by the administrator de bonis non, no action was commenced until some nine months and ten days thereafter, the provision of the law being that an action is begun by filing a petition and causing summons to be issued, and as I have said, it is contended that the claim is barred by Sec. 6098, Rev. Stat., which provides that after a claim is disallowed and rejected by the administrator or executor, the holder of such a claim shall be required within six months after such rejection of such claim to bring his action against such administrator or executor to enforce his claim.

The preceding section also provides that if claims are rejected by an administrator or executor, an action shall be begun thereon within six

Crouse v. Frybarger.

months, and provides specifically and in plain and distinct language, that unless action is begun within six months, plaintiff shall be barred. The statute, Sec. 6097, Rev. Stat., reads. 'The claimant shall, within six months after such dispute or rejection of the debt, or any part thereof, be then due, or within six months after some part thereof shall have become due, commence a suit for the recovery thereof, or be forever barred from maintaining any action thereon."

It is conceded on behalf of the defendant in error, that, under that section of the statute, a claim will be so fully and perfectly barred after the expiration of six months without suit being brought, that it cannot be revived or re-vitalized. There is a decision upon that section by the circuit court of the third circuit, in Pollock v. Pollock, 1 Circ. Dec., 408, in which the matter is discussed at some length, and it is held that a failure of the executor of the estate to plead in bar such statute does not give a right to a judgment on a claim barred thereby; that a judgment is not valid even though the bar of the statute is not interposed as a defense.

We are of the opinion that these statutes being in pari materia, relating to substantially the same matter, should be read together and receive the same construction; that there is no reason for holding or providing that there shall be an absolute bar in one case that does not apply fully to the other case. Although the legislature has not repeated the words respecting the bar in Sec. 6098, Rev. Stat., that are contained in Sec. 6097, Rev. Stat., we think that nevertheless the two sections should receive the same construction and that therefore the claim was barred under Sec. 6098, Rev. Stat.

I also cite, without taking time to read from it or to comment upon it, Harter v. Taggart, 14 Ohio St., at page 122. I may say in passing, that we are of the opinion that the claim is not barred under Sec. 4980, Rev. Stat., that if nothing else would keep it alive the allowance by the administrator de bonis non, made before the fifteen years had expired, would have had effect. There is no apparent reason why the payments made by the co-makers of the note would not keep it alive, but we have not examined that question.

It is contended that the claim is also barred by Sec. 6113, Rev. Stat., which provides that: "No executor or administrator, after having given notice of his appointment, as provided in this chapter, shall be held to answer to the suit of any creditor of the deceased, unless it be commenced within four years from the time of his giving bond as aforesaid, excepting in the cases hereinafter mentioned."

This section was amended in 1896 by making the limitation two years; theretofore it was four years and the statute applicable to the base at bar contained a limitation of four years. There are exceptions in favor of claims that do not accrue until after the expiration of two years, with respect to which further time is given and where additional assets come into the hands of an administrator after the expiration of two years. Neither of the exceptions apply or obtain here. More than four years having expired after the publication of notice of the appointment of the executors and after their qualification, it is apparent that the claim was barred under this section as well as under Sec. 6098; but it is contended that the allowance of the claim by the administrator de bonis non, served to revive it so as to take it out from the operation of this section. Many authorities are called to our attention, to the effect