Leiby's Estate, In re, 32702
| Decision Date | 23 April 1952 |
| Docket Number | No. 32702,32702 |
| Citation | 105 N.E.2d 583,157 Ohio St. 374 |
| Parties | , 47 O.O. 265 In re LEIBY'S ESTATE. LEIBY v. COSGROVE. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
1. Section 10506-67 et seq., General Code, provide a summary inquisitorial proceeding to recover specific property or the proceeds thereof belonging to a trust estate, title to which was in a decedent at his death or in a ward when his guardian was appointed, or to recover property, belonging to a trust estate, concealed, taken or disposed of after the appointment of a fiduciary. Resort may not be had to thses sections to collect a debt due a decedent, to obtain an accounting and judgment for any balance found due, or to adjudicate rights under a contract. (Goodrich, Adm'r v. Anderson, 136 Ohio St. 509, 26 N.E.2d 1016, and In re Estate of Black, 145 Ohio St. 405, 52 N.E.2d 90, approved and followed.)
2. A summary proceeding under Section 10506-67 et seq., General Code, was instituted to recover proceeds of 'pay roll' checks, payable to the decedent and signed and indorsed by him, cashed by an employee who distributed the proceeds thereof partly in payment of wages to decedent's employees and partly to the decedent. Such transactions occurred each week for a period of over five years prior to the death of the decedent. The employee claimed to have paid to the decedent all such cash remaining after the payment of wages, whereas the administrator claimed a lessor sum was paid to the decedent. Held: The relief sought by the administrator was in fact an adjustment of the accounts of the parties, was a judgment for the balance claimed to be due, with the statutory penalty, and is not within the purview of Section 10506-67 et seq., General Code.
This cause originated in the Probate Court of Franklin County where a 'complaint for concealing assets' was filed by the administrator of the estate of Robert S. Leiby, deceased, under Section 10506-67, General Code. The complaint contains the following allegation:
'The undersigned respectfully represents that he is the administrator of the estate of Robert S. Leiby, deceased; that he has good reason to and does suspect that Verda Cosgrove has concealed, embezzled or conveyed away, or that she is or has been in the possession of moneys, goods, chattels, things in action, or effects of said Robert S. Leiby, deceased.' (Emphasis supplied.)
Upon the filing of the complaint a citation was issued to and served upon the respondent, Verda Cosgrove, who appeared to answer. Evidence was taken by a master commissioner appointed by the Probate Court.
The report of the master commissioner to the Probate Court reviewed the evidence and made certain findings of fact and conclusions of law. The evidence is summarized in part as follows:
'The decedent, Robert S. Leiby, for many years prior to his death operated, as an individual and sole owner, the Robert S. Leiby Co. engaged mainly in sheet metal contract work. The respondent, Verda Cosgrove, was employed by the decedent as bookkeeper and secretary from 1926 to the time of Leiby's death. As such she had charge of all of the books of account having to do with decedent's business. She made up the pay roll each week. Employees were paid in cash and one check to cover all cash required for pay roll was written each week and cashed at the Ohio National Bank. Thereafter such cash was in the hands of respondent who distributed it to the pay envelopes. Included in such weekly distribution was $50 to the decedent, who was carried on the pay roll at this figure. The decedent had but one checking account which was used indiscriminately for his business and personal expenditures. From 1944 to the time of his death the decedent took a diminishing interest in his business. He was or became a heavy drinker. He spent less and less time at his office. In 1948 he had a severe back injury which incapacitated him for several months. Finally he contracted tuberculosis from which he died in the spring of 1949. Commencing in 1944 and continuing through 1948, the respondent from time to time drew the weekly pay roll check for cash in excess of the amount required to meet the pay roll as shown by the company's books. These excesses by years were as follows:
1944 .. 7,270.85
1945 .. 9,800.00
1946 . 10,000.00
1947 . 10,000.00
1948 . 13,000.00
1949 .. 1,400.00
'At the end of or during each year the approximate amount of such excesses were [sic] by the respondent charged to various other items of company expense such as purchases, inventory, repairs and the like.
In addition to these summarized facts, the record discloses that practically all the pay roll checks in question were payable to the decedent, Robert S. Lieby, and were signed and indorsed by him. It is undisputed also that it was the custom of the decedent to receive money, which was chargeable to his drawing account, at the same time that wages were paid to employees, and that it was the custom to pay both employees and the decedent these sums in cash.
The master commissioner made the following findings of fact:
'1. The respondent, Verda Cosgrove, made withdrawals of cash from the decedent's bank account in excess of pay roll requirements in the amounts and for the years shown as follows:
1944 ..... 7,270.85
1945 ..... 9,800.00
1946 .... 10,000.00
1947 .... 10,000.00
1948 .... 13,000.00
1949 ..... 1,400.00
Total $51,470.85
From these facts the commissioner concluded:
The Probate Court confirmed the findings of the master commissioner and entered judgment accordingly.
An appeal was thereupon prosecuted to the Court of Appeals which court affirmed the judgment.
The cause is before this court upon the allowance of a motion to certify the record of the Court of Appeals.
Noel L. Greenlee and Andrew J. White, Jr., Columbus, for appellee.
Guy R. Martin and Samuel L. Zuravsky, Columbus, for appellant.
The question of law presented in this appeal involves the construction and application of Section 10506-67 et seq., General Code, relating to the procedure in the Probate Court for a recovery of concealed or embezzled assets. It is the contention of the respondent that the purpose of the administrator was to employ this summary proceeding to secure an accounting of the funds belonging to the decedent which she is alleged to have handled or at various times had in her possession.
Section 10506-67, General Code, is as follows
Section 10506-68, General Code, provides:
'The court in which such complaint is made shall forthwith proceed to hear and determine the matter.'
Section 10506-69, General Code, provides:
'If a person so cited refuses or neglects to appear and submit to an examination, or refuses to answer interrogatories lawfully propounded, the court issuing the citation shall commit such person to the jail of the county, there to remain in close custody until he submits to its order and direction in that behalf.'
Section 10506-71, General Code, provides:
'If required by either party, the probate court shall swear such other witness or witnesses as may be offered by either party touching the matter of such complaint, and cause the examination of every such witness, including questions and answers, to be reduced to writing, signed by...
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