Mcbride v. Vance

• Decision Date: 02 February 1906
• Docket Number: 9405
• Citation: 73 Ohio St. 258,76 N.E. 938
• Parties: Mcbride v. Vance.
• Court: Ohio Supreme Court

76 N.E. 938

73 Ohio St. 258

Mcbride v. Vance.

No. 9405

Supreme Court of Ohio

February 2, 1906

Personal property of deceased person - Does not vest in heirs - But is in abeyance until administration is granted - Action on promissory note belonging to deceased - Law of administration.

1. As a general rule administration is a prerequisite to the devolution of the personal estate of a decedent.

2. The personal property of a deceased person does not vest in his heirs but is in abeyance until administration is granted and is then vested in the administrator by relation from the time of death, and no right of action on a promissory note belonging to a deceased person is shown by a party in an action on the note by proof of possession and that he is the sole heir of the decedent.

In October, 1902, Eleanor Vance, defendant in error, commenced this action in the court of common pleas of Richland county against the defendant in error, C.E. McBride, as administrator de bonis non of the estate of J. B. Daily deceased, to recover on a promissory note.

The plaintiff in her petition, after stating the appointment and qualification of the defendant, avers that he is indebted to her upon a promissory note of which the following is a copy with all credits and endorsements:

"MANSFIELD O., January 21, 1875.

"One day after date I promise to pay to the order of T. J Robinson, four hundred and fifty dollars, at ten per cent interest.

"JOHN B. DAILY."

"Received Jan. 21, 1876, forty-five dollars being interest to this date. $45.00.

"Received April 13, 1887, three hundred and fifty dollars. Paid by P. W. Schaden, Admr., estate J. B. Daily.

"Accepted as a valid claim against the estate of J. B. Daily. C. E. McBride, Admr. de bonis non of the estate of J. B. Daily. Jan. 29, 1892."

She then avers that on the twenty-ninth day of January, 1892, she presented the claim to the defendant and that he endorsed thereon his allowance of the same, that eighteen months have elapsed, that no part of the claim has been paid and that there is due her thereon a sum stated which she claims with interest. The defendant for answer admits his appointment, that he allowed the claim but avers that he subsequently, in September, 1902, rejected it and denies every other allegation, and for a second defense avers that the claim is barred because more than five years elapsed after the pretended cause of action arose and before the commencement of the suit.

For a third defense he avers that the claim is barred because more than four years elapsed before the commencement of the action and after he had qualified and had given notice of his appointment.

And for a fourth defense he avers that more than two years elapsed after he was appointed and before the commencement of the action.

A jury was waived and on the trial the plaintiff introduced evidence that she was the daughter and only child of T. J. Robinson and also of her mother Sarah S. Robinson, who died in 1898, and that she found the note among her mother's papers after her death and that it then bore the credits and endorsements above-mentioned. Evidence was offered tending to prove the signature to the note and it was then received in evidence against the objection of defendant.

It appears from the note that it bears in addition to the credits and endorsements set out in the petition the following endorsement:

"Pay to the order of Sarah S. Robinson.

"T. J. ROBINSON."

The plaintiff testified that her mother survived her father, that the note belonged to her mother, that she died testate and the note now belongs to the plaintiff. There was no proof of how or when the note came into the possession of the mother or that she disposed of it by her will.

Judgment was entered for the plaintiff and the circuit court affirmed.

Messrs. Cummings, McBride & Wolfe, for plaintiff in error, cited and commented upon the following authorities:

United States v. Crow, 1 Bond (U.S.), 51; Insurance Co. v. Badger, 3 Wend. (N. Y.), 102; Pate v. People, 8 Ill. 644; Kline v. Prindle, Wright, 414; Roseboom v. Billington, 17 Johns. Rep., 182; Keel, Exr. v. Rudisell, 7 Circ. Dec., 464; 13 C. C. R., 199; 18 Am. & Eng. Ency. Law, 202; Walker v. Wykoff, 14 Ala. 560; Marshall v. Daniels, 18 N. H., 364; Gil- patrick v. Foster, 12 Ill. 355; Thomas v. Chamberlain, 39 Ohio St. 112; Kinkead's Probate Law and Practice, Sec. 480; Clark v. Boyd, 2 Ohio 57; Greer et al. v. State, 2 Ohio St. 574; Gilbert v. Little, 2 Ohio St. 156; Marienthal et al. v. Mosler et al., 16 Ohio St. 566; Hanee, Exr. v. Hair et al., 25 Ohio St. 351; sec. 6108, Rev. Stat.

Mr. H. E. Bell and Mr. George Brinkerhoff, for defendant in error, cited and commented upon the following authorities:

Kline v. Prindle, Wright, 415; Greenough et at. v. E. D. Taylor, 17 Ill. 602; Morris v. Morris, 5 Mich. 171; Long v. Kingdon; 25 Ill. 66; Henderson v. Reeves, 6 Blackf., 101; Brown v. Gordon, 16 Md. 444; 18 Am. & Eng. Ency. Law (1 ed.), 202; Roseboom v. Billington, 17 Johns. Rep., 182; Keel v. Rudisell, 7 Circ. Dec., 464; 13 C. C. R., 203; Thomas v. Chamberlain, 39 Ohio St. 112; Taylor et al. v. Thorn, Admr., 29 Ohio St. 569; Marienthal v. Mosler, 16 Ohio St. 566; sec. 4992, Rev. Stat.

SUMMERS J.

Considerable space in the briefs of counsel is given to a consideration of the questions whether the credit of the date 1887, in the absence of any evidence tending to prove when or by whom it was made, sawed the action on the note from the bar of the fifteen year statute of limitation, and whether the endorsement of that credit on the note operated as an allowance of it as a claim against the estate of J. B. Daily by his administrator.

It is not necessary to determine either question. The first because it is not raised either by demurrer or answer, and the second because there is no evidence that Schaden was administrator of the estate of Daily or that he made this payment upon the note, and for the further reason that the case is disposed of on other grounds.

Nor is it necessary to consider whether the statutes of limitation pleaded by the answer are a bar, because it does not appear that the note ever was presented as a claim against the estate of Daily to the administrator de bonis non by any one to whom the administrator legally might have paid it.

In Williams on Executors (7 Am. ed., 775) it is said: "It may be stated, that, both at law and equity, the whole personal estate of the deceased vests in the executor or administrator." And (765) that: "The interest which an executor or administrator has in the goods of the deceased is very different from the absolute, proper, and ordinary interest which every one has in his own proper goods: for an executor or administrator has his estate as such in auter droit merely, viz., as the minister or dispenser of the goods of the dead."

In Woerner's American Law of Administration (2 ed.), sec 199, it is said that the necessity of administration arises out of the common law doctrine that the personal property of the decedent descends to the executor or administrator and that this doctrine is recognized substantially in all the states except Louisiana; and further: "The direct consequence of this principle of the law is, that without due course of administration the claims of creditors cannot be lawfully satisfied, and neither heirs nor legatees can obtain a legal title to their legacies or distributive shares; and that neither devisees nor heirs can hold she real estate to which they succeed free from the claims of creditors of the deceased, against whom limitation does not, in some states, run after the debtor's death, until there be lawful administration of his estate. Another consequence is, that the payment of debts to the deceased can 1)9 coerced by no one but the lawfully appointed executor or...