Buckingham's Estate, In re

• Decision Date: 26 January 1967
• Citation: Buckingham's Estate, In re, 224 N.E.2d 383, 9 Ohio App.2d 305 (Ohio App. 1967)
• Parties: , 38 O.O.2d 351 In re ESTATE of BUCKINGHAM.
• Court: Ohio Court of Appeals

Page 305

9 Ohio App.2d 305

224 N.E.2d 383, 38 O.O.2d 351

In re ESTATE of BUCKINGHAM.

Court of Appeals of Ohio, Second District, Darke County.

Jan. 26, 1967.

Spidel, Staley, Hole & Hanes, Greenville, for appellant Thomas C. hanes.

Robert J. Huffman, West Milton, for appellee Florine B. Buckingham.

CRAWFORD, Judge.

The facts of this case are clear and undisputed. On November 30, 1957, Marlin E. Buckingham, decedent, borrowed the sum of $3,000 from one Lavern Crider to whom he gave his promissory note, payable in one year, secured by mortgage on his real estate. No payments were made on the principal until December 1, 1959, when Mrs. Florine Deering paid to Lavern Crider, out of her own funds, the sum of $3,075 in full payment of the note and mortgage, and the mortgage was released of record. On January 16, 1960, Florine Deering and the decedent were married. She is his surviving spouse and administratrix of his estate. Also surviving are children of decedent by a former marriage.

Florine B. Buckingham, the surviving spouse, proceeding under the provisions of Section 2117.02, Revised Code, presented her claim against the estate for the sum of $3,075 (including interest) so paid to Crider to discharge decedent's note and mortgage. On March 26, 1966, she filed in the Probate Court a petition for the allowance of her claim. This petition was duly verified and alleged that she loaned $3,000 to the decedent for the purpose of paying the note and mortgage, that no part of the money has been repaid to her, and that the sum advanced is due her with interest.

Thomas C. Hanes was appointed by the court as special administrator to represent the estate. He and the two natural children and heirs of the decedent, Marlin E. Buckingham, resisted the claim.

After hearing, the court allowed the claim in the sum of $3,075. The administrator has appealed on questions of law.

The second assignment of error and one of the principal contentions of appellant is that the claim was barred by the six-year statute of limitations (Section 2305.07, Revised Code), more than six years having elapsed from the time of advancing the money on December 1 (or December 6), 1959, to the filing of claimant's petition of March 26, 1966.

The opinion of the Probate Court, which is found in the original papers, stated that when claimant loaned the money to the decedent she had no intention of making any demand for repayment by any specified date but instead had in mind that he would repay the money when he became able and when it would become convenient for him to do so, that he was never in a position to repay, that a reasonable time would have to elapse after the making of the loan before the statute of limitations would begin to run, and that the claim was not barred by the statute.

Such a conclusion as to claimant's intention is reasonably deducible from the evidence, as would be a similar conclusion as to decedent's intention. The evidence shows no agreement or understanding as to time of payment. Surely it was not to be repaid immediately, else why would claimant have rescued decedent from an indebtedness which he had failed to reduce in two years, and which was more than one year overdue? We find the Probate Court's reasoning valid, its conclusion sound and properly supported by the evidence.

According to the majority view a promise to pay when able or when convenient is a conditional promise, and the cause of action accrues thereon and the statute of limitations begins to run when the ability to pay arises. 34 Ohio Jurisprudence 2d 548, Limitation of Actions, Section 72; 34 American Jurisprudence 113, 114, Limitation of Actions, Section 140; 28 A.L.R.2d 788. See Detroit, Toledo & Ironton Rd. Co. v. Pitzer (Ohio App.1943), 61 N.E.2d 93, 42 Ohio Law Abst. 494.

The minority view is that such a promise is absolute and that the cause of action accrues and the statute of limitations begins to run within a reasonable time. 28 A.L.R.2d 790. From December 1, 1959, to March 26, 1960, in all the circumstances of this case, including the marriage of claimant and decedent on January 16, 1960, is a reasonable time to wait for the accrual of the obligation.

Appellant's counsel broadened the discussion of this second assignment of error to question the admissibility in evidence of a photostatic copy of the check given by claimant to decedent's mortgagee, Crider. However, it was conceded in argument that the objection to admission of the copy instead of the original was not actually made at the hearing.

If this exhibit were not considered, there would still remain the direct and...