In Re Estate of Howe

This is an appeal on questions of law from a judgment of the Probate Court of Stark County, Ohio. The notice of appeal reads as follows:

"Mike Bort, petitioner for authority to present claims to the executor herein, gives notice of appeal to the Court of Appeals from the judgment rendered by the Probate Court of Stark County in the above-entitled cause on the 24th day of June, 1958, and from the order of the court overruling petitioner's motion for leave to amend entered July 10, 1958. Said appeal is on questions of law."

A hearing was had in the Probate Court and that court *Page 368 made separate findings of fact and conclusions of law, which read as follows:

"Pursuant to the provisions of Revised Code Section 2315.22 and the request of petitioner, Mike Bort, to the court to state in writing the conclusions of fact found separately from the conclusions of law, the court supplements its opinion of May 19, 1958, as follows:

"As conclusions of fact, the court finds:

"1. The address of the residence of decedent was at all times at 2586 Blake Avenue N.W. in Canton, the county seat of Stark County, Ohio, and was accurately reported in the State Highway Patrol investigation of the accident involved in this cause occurring on February 8, 1957. Counsel for petitioners. John A. Willo, obtained a copy of the State Highway Patrol report and thus knew of the address of decedent on or before February 23, 1957, when he mailed `Petitioners' Exhibit 1' to decedent at his correct residence address.

"2. Ressell Umbenhour was appointed executor of the estate of Harry H. Howe, deceased, on September 4, 1957, and at all times since his appointment has lived at the same address, 2606 Blake Avenue N.W. Canton, Stark County, Ohio.

"3. In November, 1957, petitioner, Mike Bort, and Attorney John A. Willo had a conversation in the hospital, the subject of which was that each had learned of the death of Harry H. Howe independent of the other. Prior to this conversation each had acquired an intelligent apprehension of the death of decedent from information which a reasonable person should have acted upon and regulated his conduct accordingly.

"4. Knowledge of decedent's death was confirmed in a conversation had by Attorney Willo, representing petitioners, with Fred Wilkie, representing decedent's estate, in the middle of December, 1957.

"5. No effort was made by petitioners or their counsel to ascertain if a fiduciary had been appointed in Stark County until after January 1, 1958, and then only by letter from counsel which was immediately answered by `Petitioners' Exhibit 2,' dated January 6, 1958. If any diligent effort had been made by petitioners or their counsel when they first learned of the death of decedent or even as late as when his death was confirmed *Page 369 in the conversation with Mr. Wilkie in December of 1957, they would have ascertained the appointment in ample time to present their claims within four months after the appointment.

"6. The four months period, after the date of appointment, expired on January 4, 1958, with no claims being presented to the executor, but with counsel for petitioners being able to draw up and execute the petitions filed in this cause by January 10, 1958, and file the same immediately, after receiving `Petitioners' Exhibit 2' mailed from Canton, Ohio on January 6, 1958.

"7. No evidence was presented in behalf of the petition of Lizzie Bort, but said petitioner was at all times represented by Attorney John A. Willo who likewise represented petitioner, Mike Bort.

"As conclusions of law in this cause, based on the foregoing conclusions of fact, the court finds:

"1. No claims were filed by either petitioner with the executor of decedent's estate within four months after the appointment of the executor as required by Revised Code Section2117.07.

"2. Petitioners acquired actual notice of decedent's death within four months after the appointment of the executor of the estate of Harry H. Howe and in sufficient time to present their claims within said four months period so as to preclude any right to present any claim after the expiration of the four months period.

"3. Petitioners failed to exercise diligence to ascertain the appointment of the executor after acquiring actual notice of decedent's death, when, by exercise of such diligence, they would have learned of the appointment in time to have had ample and fair opportunity to present their claims within four months after said appointment.

"Counsel for the estate of Harry H. Howe, deceased, shall prepare a journal entry and forward the same to Attorney John A. Willo, 509-510 Union National Building, Youngstown, Ohio for approval and filing on or before the 13th day of June, 1958."

After a complete and careful reading of the record, I am in complete accord with the findings of fact and conclusions of law made by the Probate Court. *Page 370

Thereafter on June 18, 1958, appellant moved the court for leave to amend his petition "by adding thereto the additional ground of fraud and misrepresentation," which was overruled by the court in a journal entry filed on July 10, 1958.

The appellant's claim is based on Section 2117.07 of the Revised Code, which reads as follows:

"Anyone having a claim against an estate who fails to present his claim to the executor or administrator within the time prescribed by law may file a petition in the Probate Court for authority to present his claim after the expiration of such time. Such petition forthwith shall be assigned for hearing and at least five days before the date of the hearing the claimant shall give written notice thereof to the executor or administrator and to such other parties as the court may designate. The court may authorize such claimant to present his claim to the executor or administrator if, on the hearing, the court finds as follows:

"(A) That the claimant did not have actual notice of thedecedent's death or of the appointment of the executor oradministrator in sufficient time to present his claim within theperiod prescribed by Section 2117.06 of the Revised Code;

"(B) That the claimant's failure to present his claim was due to the absence of the executor or administrator from his usual place of residence or business during a substantial part of such period or was due to any wrongful act or statement on the part of the executor or administrator or his attorney;

"(C) That the claimant was subject to any legal disability during such period or any part thereof.

"A claim which is not presented within nine months from the appointment of the executor or administrator shall be forever barred as to all parties, including devisees, legatees, and distributees and no payment shall be made nor any action maintained thereon, except as otherwise provided in Sections 2117 37 to 2117.42, inclusive, of the Revised Code, with reference to contingent claims."

On the questions of law involved in this case, I cite In reEstate of Marrs, 158 Ohio St. 95, 107 N.E.2d 148, the syllabus of which reads as follows:

"1. One who has a claim against a decedent's estate and *Page 371 fails to present the same in writing to the executor or administrator within four months of his appointment, as required by Section 10509-112, General Code, may, after the expiration of such time, under Section 10509-134, General Code, petition the Probate Court for leave to do so and where upon hearing the court finds `that the claimant did not have actual notice of the decedent's death or of the appointment of the executor or administrator in sufficient time to present his claim within the time prescribed by law * * * then the court may authorize such claimant to present his claim to the executor or administrator after the expiration of such period.'

"2. The disjunctive conjunction `or,' is used in Section 10509-134, General Code, in its ordinary sense and meaning, and where upon hearing of the petition for authority to file a belated claim the evidence discloses that claimant actually knew of the decedent's death and his place of residence shortly after the death occurred and that in the exercise of reasonable diligence the claimant could have learned of the appointment of an administrator and thereafter had a fair opportunity to present his claim within the four months prescribed by Section 10509-112, General Code, the court is chargeable with no error or abuse of discretion in denying claimant authority to present such claim."

The Court was unanimous in its decision, with the exception of Middleton, J., who wrote a dissenting opinion, which reads as follows:

"MIDDLETON, J., dissenting. As I read Section 10509-134, General Code, the absence of actual knowledge of either the death or of the appointment of the executor or administrator warrants the court in permitting the claimant to file his claim after the expiration of four months. The record clearly establishes that the claimant did not have actual knowledge of the appointment of an executor or administrator. The construction adopted in the majority opinion has the effect of nullifying and writing out of the statute the words, `or of the appointment of the executor or administrator.'"

I also cite In re Estate of Hamlin, 54 Ohio Law Abs., 257, 87 N.E.2d 691: *Page 372

"1. Actual notice, as it appears in Section 10509-134, G. C., is a conclusion of fact capable of being established by all grades of legitimate evidence.

"2. If a person presenting a claim under the provisions of Section 10509-134, G. C., has in some way been brought to an intelligent apprehension of the death of decedent, or the appointment of the executor or administrator, so that a reasonable man would act upon the information and regulate his conduct thereby, he has actual notice of same.

"3. The only notice which the law required as to the appointment of an administrator is publication of the appointment which is constructive notice to all persons interested in the estate.

"4. One who has been negotiating with the agent of an insurance company with reference to his claim against a person whose death he subsequently read about in the newspaper had such knowledge of the death as would constitute `actual notice' not only of his death, but of the appointment of the administrator, justifying denial of a petition for reinstatement of his barred claim against the estate of the deceased."

See, also, In re Estate of Natherson, 102 Ohio App. 475,134 N.E.2d 852, 57 A. L. R. (2d), 1297:

"1. The purpose of Sections 2117.06 and 2117.07, Revised Code, requiring, with some exceptions, the filing of claims within four months after the appointment of the administrator or executor, is to promote the prompt and expeditious settlement of estates of decedents, and the designation of the statutes as nonclaim statutes or statutes of limitation is not important.

"2. Claims filed against estates of decedents more than four months after the appointment of an administrator or executor must be filed in conformity with the statutes and not predicated on general principles of equity outside the purview of the statutes, as the statutes provide the exclusive remedy to file belated claims.

"3. Under the provisions of subsection (A) of Section2117.07, Revised Code, such late claims against the estate of a deceased physician may not be allowed where claimants had actual notice of the decedent's death at or about the time thereof *Page 373 by reading newspaper articles published at the time of that event.

"4. Under the provisions of subsection (B) of Section2117.07, Revised Code, in a proceeding to file late claims against the estate of a decedent by claimants who charge that such physician had concealed his negligence in a surgical operation, the alleged wrongful acts of the physician do not qualify claimant's belated claim where it is not claimed that there was any wrongful act on the part of the administratrix or her attorney, which would qualify claimants for relief under this section, as the acts of decedent are not imputed to the administratrix or her attorney.

"5. Where claims against a deceased physician's estate are based on negligence or malpractice arising out of the performance of a surgical operation, Section 2305.09, Revised Code, which provides that an action shall not accrue until the fraud is discovered, has no application because by the terms of the statute it has application only where fraud is the ground or gist of the action.

"6. In considering legislative intent with respect to the enactment of Section 2117.07, Revised Code, it is clear that the Legislature in limiting subsection (B) to any wrongful act or statement upon the part of the executor or administrator or his attorney did not intend expressly or by implication to extend the provisions of the act to any wrongful act or statement of the decedent."

And see, also, In re Estate of Miller, 98 Ohio App. 445,129 N.E.2d 838:

"1. Where a claimant seeking to file a belated claim under Section 2117.07, Revised Code, actually knew of decedent's death and in the exercise of reasonable diligence could have learned of the appointment of an administrator and thereafter had a fair opportunity to present his claim within the four months prescribed by Section 2117.06, Revised Code, the Probate Court is chargeable with no error or abuse of discretion in denying such claimant authority to present such claim.

"2. Counsel for the administrator of the deceased's estate has no duty to advise such claimant of the name of the administrator, and is under no duty to advise the claimant of his error in *Page 374 wrongfully presenting his claim to the decedent's widow, under the mistaken belief that she was the administratrix of decedent's estate, instead of to the court-appointed administrator."

Appellant also claims that his failure to present his claim was due to the wrongful act or statement on the part of the executor or administrator or attorney.

Even if there had been fraud in this case, it would constitute no excuse for failure to present the claim within the time prescribed under those circumstances, and would not call for the court to exercise its discretion, in view of the fact that the court below did specifically find that the appellant did have such actual notice in sufficient time, a finding with which I am in complete accord.

In conclusion, for the reasons herein stated, I am clearly of the opinion that none of the claims of the appellant are well taken, and that the judgment of the Probate Court should be affirmed.