OPINION
By DONAHUE, J.Following an automobile accident involving LaVerne Kiko, who died within hours after the accident, and plaintiff-appellant, the latter retained counsel to represent him. Counsel, having learned that the Grange Mutual Insurance Company carried coverage on the Kiko automobile, contacted a representative of that company directly instead of sending a letter to anyone connected immediately with the deceased.
Plaintiff had learned within hours after the accident that Kiko had died, and this was confirmed by the police reports received later.'
Plaintiff’s counsel was in possession of the deceased’s address shortly after the accident. Negotiations with the insurance company took some time, as usual. Counsel for plaintiff made no inquiries as to decedent’s estate, but apparently believed that the insurance company would, in due time, make an amicable settlement.
Then, suddenly, a little more than four months after the appointment of an executor in Carroll County the insurance company advised him that, since the claim had not been filed with decedent’s executor within the four month period, they were not honoring it.
Counsel, thereupon, through co-counsel, did some checking and almost immediately discovered that the executor had been appointed in Carroll County just a little more than four months before. Counsel then filed a petition under §2117.07 R. C., requesting leave to file the claim. After a hearing, the Probate Judge refused to grant the request.
From that refusal, comes this appeal.
We are unable to distinguish this case from that of In re Estate of Marrs, 158 Oh St 95. The facts fit precisely, and we can see no reason for overruling the Supreme Court of the State of Ohio, whereby they have spoken so plainly.
We might add that in our opinion, the statute involved here, is one which lets the matter up to the discretion of the Probate Court. The use of the word “may” is permissive, not mandatory. And where the legislature gives such discretion to a court, they do so, that he might exer*557cise it within rather broad limits. The question is not whether a reviewing court, using its discretion, would have arrived at the same result. But whether or not the original court “abused” that discretion. The facts here are not such as to indicate “abuse.”
There is some claim made here that the insurance company’s conduct was such as to lead plaintiff’s counsel astray.
Unquestionably, the company was hoping that this would happen, but their conduct was not such as to induce plaintiff not to file his claim. At most they hoped he wouldn’t and otherwise proceeded as they normally do. In addition to that, we find authority in In re Estate of Erbaugh, 73 Oh Ap 533, on page 537, that this evidence should have been excluded and was in no way pertinent to the issue.
We, therefore, find that the decision of the Probate Court should be and hereby is affirmed.
GRIFFITH, PJ, concurs. PHILLIPS, J, dissents.