Beach v. Mizner

• Decision Date: 15 July 1936
• Docket Number: 25747.
• Citation: 131 Ohio St. 481,3 N.E.2d 417
• Parties: BEACH v. MIZNER.
• Court: Ohio Supreme Court

3 N.E.2d 417

131 Ohio St. 481

BEACH v. MIZNER.

No. 25747.

Supreme Court of Ohio.

July 15, 1936

Error to Court of Appeals, Cuyahoga County.

Syllabus by the Court .

1. Sections 10509-112 and 10509-134, General Code (114 Ohio Laws, 320), must be construed together.

2. These sections are statutes of limitation (or nonclaim statutes) which bar creditors' claims unless presented to an executor or administrator within four months after the date of appointment.

3. A barred claim may be reinstated and presented to an executor or administrator upon leave first obtained from the probate court in the manner provided in section 10509-134, General Code.

In the court of common pleas the plaintiff filed the following petition:

‘ Plaintiff is the duly appointed and acting Receiver of The Service Savings and Loan Company, a corporation incorporated under the laws of the State of Ohio for the purpose of doing business as a building and loan association.

‘ Defendant was duly appointed by the Probate Court of Cuyahoga County, Ohio, and is now acting as Executor of the Estate of Jacob B. Lynn, deceased, a record of which estate is found in Docket 256, No. 219906 of the Records of Probate Court of Cuyahoga County, Ohio.

‘ In his lifetime, to-wit: on July 10, 1922, said Jacob B. Lynn subscribed for ten (10) shares of the Capital Stock of The East Shore Savings & Loan Association, an Ohio corporation, and agreed to pay therefor One Hundred ($100.00) Dollars per share, upon which subscription One Hundred ($100.00) Dollars and no more has been paid.

‘ Thereafter, for a valuable consideration said The East Shore Savings & Loan Association transferred and assigned said subscription to said The Service Savings and Loan Company.

‘ A copy of said subscription is in words and figures as follows to-wit:

‘ The East Shore Savings & Loan Association

‘ Cleveland, Ohio

‘ Authorized Capital Stock, $150,000.00

‘ Application for Installment Stock

‘ The undersigned hereby subscribes for 10 shares (par value $100.00 each) of the capital stock of The East Shore Savings and Loan Association of Cleveland, Ohio, subject to all the liabilities and duties of stockholders as prescribed by the Constitution and By-Laws of said Association, which are now in force or may hereafter be legally adopted, and the laws of the State of Ohio, and agrees to pay a membership fee of $5.00 per share, which is not redeemable.

‘ Regular installments upon stock are payable at the rate of $_____ per share per month in accordance with the By-Laws of the Association, the first installment being payable first day of the month following date hereof.

‘ Date July 10, 1922

Name J B. Lynn

‘ Number of Shares Ten (10)

Address 16220 Saranac Rd.

‘ Membership Fee 50.00

Salesman Cross & Zieger

‘ Make all checks payable to The East Shore Savings & Loan Association.

‘ Total Credits: $100.00

‘ That said Court ordered the unpaid balance upon said subscription contract to be paid on or before March 15, 1934; that there is, therefore, due and unpaid on said subscription contract the sum of $900.00 together with interest thereon at the rate of 6% per annum from and after March 15, 1934.

‘ On the 16th day of July 1934, plaintiff presented to defendant a verified copy of said subscription together with the amount due thereon and demanded that defendant allow the same as a valid claim against the estate of said Jacob B. Lynn, deceased, and defendant then and there refused to allow the same as a valid claim.

‘ Wherefore, plaintiff prays for judgment against defendant in the sum of Nine Hundred ($900.00) Dollars together with interest thereon at six (6%) per cent from and after March 15, 1934, and for any other and further relief to which he is entitled either at law or in equity.’

To this petition the defendant demurred on the grounds that ‘ the court has no jurisdiction of the subject of the action’ and that ‘ the petition does not state facts which show a cause of action.’

The trial court sustained the demurrer and rendered judgment for the defendant.

This judgment was affirmed by the Court of Appeals 3 N.E.(2d) 642.

The case is in this court by reason of the allowance of a motion to certify.

Allison M. Gibbons, of Cleveland, for plaintiff in error.

Clyde M. White, of Cleveland, for defendant in error.

WEYGANDT, Chief Justice.

The defendant contends that the plaintiff's petition is demurrable because it does not allege that the claim was presented to him as executor within four months after his appointment, as provided by section 10509-112, General Code (114 Ohio Laws, 320), and contains no allegation to the effect that the plaintiff obtained leave from the probate court to file his claim for allowance, as provided by section 10509- 134, General Code (114 Ohio Laws, 320). Subsection 112 reads as follows:

‘ Creditors shall present their claims, whether due or not due, to the executor or administrator within four months after the date of his appointment. Such executor or administrator shall allow or reject all claims, except contingent claims, within thirty days after their presentation. Any claim presented after the time herein provided shall not prevail as against bona fide purchasers or as against executors and administrators who have acted in good faith, or against a surviving spouse who has made the election to take under the will or at law, and, except as to negotiable instruments maturing subsequent to the expiration of such time, any such late claim shall not prevail as against bona fide distributees.’

Subsection 134 contains the following language:

‘ Upon petition filed by a creditor or person deriving title from him, whose claim has not been presented within the time prescribed by law, the probate court, if after notice to all interested parties and hearing, it is of the opinion that justice and equity so require, and that the petitioner is not chargeable with culpable neglect in failing to present his claim within the time so prescribed, may permit petitioner to file his claim for allowance, but such allowance shall not affect any payment or distribution made before the filing of such claim, nor shall it prejudice the rights of creditors whose claims were filed within the time prescribed by law.’

The important question here presented is whether these recent amendments are statutes of limitation (or nonclaim statutes as they are frequently designated). The difference of opinion between counsel starts with the very first sentence of subsection 112,...