Hart v. Johnston, 17208.

• Decision Date: 06 February 1968
• Docket Number: No. 17208.,17208.
• Citation: 389 F.2d 239
• Parties: Pearl HART, Plaintiff-Appellant, v. Ross L. JOHNSTON, Administrator of the Estate of Melvin M. Hatley, Deceased, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

389 F.2d 239 (1968)

Pearl HART, Plaintiff-Appellant, v. Ross L. JOHNSTON, Administrator of the Estate of Melvin M. Hatley, Deceased, Defendant-Appellee.

No. 17208.

United States Court of Appeals Sixth Circuit.

February 6, 1968.

Charles E. Brant, Columbus, Ohio (Wright, Harlor, Morris, Arnold & Glander, by Thomas E. Cavendish, Columbus, Ohio, Howard Hunt, Sr., Louisville, Ky., on the brief), for appellant.

Harold E. Gottlieb, Zanesville, Ohio (Gottlieb, Johnston & Beam, Zanesville, Ohio, on the brief), for appellee.

Before O'SULLIVAN, PECK and COMBS, Circuit Judges.

PER CURIAM.

Upon cross-motions for summary judgment, this cause was disposed of by entry of judgment for the defendant, administrator of the estate of Melvin M. Hatley. (Defendant's original motion for summary judgment was denied; both parties made later motions pursuant to the District Court's pretrial order.)

Melvin Hatley died owing a substantial debt to the plaintiff, Mrs. Pearl Hart, now a 78 year old lady, who befriended the said Hatley by making him a loan in 1954 to set him up in the business he was operating at the time of his death. The dispute herein arose out of the alleged failure of Mrs. Hart to satisfy Ohio law requiring presentment of claims to the representative of a decedent's estate within the 4 or 9 months periods of Ohio Revised Code §§ 2117.06 and 2117.07. Under these provisions, a claim "in writing" must be presented within four months after the appointment of the fiduciary; in certain specific excusatory situations, the time limit is expanded to nine months.

The depositions taken and affidavits filed would permit a finding of the following facts: At the time of his death, Melvin M. Hatley was indebted to the plaintiff for the sum of approximately $13,000, the balance owing on the above mentioned loan. Appellee Johnston was appointed administrator of Hatley's estate and with court permission operated the business in which Hatley had been involved. One William Gaab, as an accountant, had been engaged in taking care of the books of the Hatley business, Hatley's Harley-Davidson Sales; he was continued in the business' employ by Johnston, to provide the same service for him as administrator of the Hatley estate.

Subsequent to Hatley's death, plaintiff, not knowing of this event, attempted to correspond with decedent by letter addressed to his place of business. Mr. Gaab, the said accountant, answered her letter, informing her of Hatley's death. Plaintiff and Gaab thereafter continued to correspond, and in one letter to Gaab plaintiff requested: "Please do the best you can, take care of my part as you would want me to do if we changed places and I will be satisfied."

While Johnston was running the Hatley business, and during the four month period allowed for presentation of claims under § 2117.06, Gaab prepared and exhibited to Johnston a balance sheet showing the financial condition of the business. It showed the debt of plaintiff as the largest single account payable. Gaab also showed Johnston the books of the business which, by original entry, recorded the loan from plaintiff Hart, the payments thereon, and the balance due at the time of Hatley's death. Gaab testified that during this period, "I believe every time I contacted Mr. Johnston I mentioned Mrs. Pearl Hart's account." He testified that Johnston assured him that Hatley's debt to plaintiff would be paid.

Thus fully advised of the estate's debt to plaintiff by Gaab, and by the records of the business, Johnston did nothing about it in the four month period allowed for presentation of a claim under § 2117.06, Ohio Revised Code, or within the nine month period provided in § 2117.07 for "Presentation of claims after four months." After the nine months had expired in January, 1961, Johnston, in February, 1961, got in touch with plaintiff and told her he wished to settle the account, but did not do so and thereafter resisted her claim by invoking the mentioned statutes of limitations.

Johnston filed an affidavit wherein he stated that Gaab had never informed him of his correspondence with Mrs. Hart or that he was acting as her agent in pointing out her claim, and denied that he had told Gaab that the account would be settled. Johnston's affidavit does not recite whether or not he, in fact, had knowledge of the relationship between Mrs. Hart and Gaab.¹ He did not deny the genuineness of plaintiff's account, and gave no explanation of why he waited until the statutory period for filing claims had expired before he exhibited any interest in the estate's largest item of indebtedness.

The District Judge gave judgment to defendant by strict enforcement of the four and nine month statutes of limitations. Appellant claims that her claim is not barred because what was done by Gaab and Johnston within the statutory time was the equivalent of presenting the plaintiff's claim. See Gerhold v. Papathanasion, 130 Ohio St. 342, 199 N.E. 353, 103 A.L.R. 334 (1936). And that the filing of a formal claim would add nothing to what had been done and that Johnston's conduct should estop him from raising the bar of the statute of limitations. The text of 22 Ohio Jur.2d § 293, at 653 reads:

"Since the law does not require a claimant or litigant to do a vain thing, the mandatory provisions of the statute requiring presentation in writing to the personal representative of claims against the estate he represents, are said to be quite uniformly softened and not enjoined when the application of

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