Natherson's Estate, In re

• Decision Date: 23 May 1956
• Citation: 102 Ohio App. 475,57 A.L.R.2d 1297,134 N.E.2d 852
• Parties: , 57 A.L.R.2d 1297, 74 Ohio Law Abs. 387, 3 O.O.2d 35 In re ESTATE of Frank M. NATHERSON.
• Court: Ohio Court of Appeals

Page 475

102 Ohio App. 475

134 N.E.2d 852, 57 A.L.R.2d 1297, 74 Ohio Law Abs. 387,

3 O.O.2d 35

In re ESTATE of Frank M. NATHERSON.

Court of Appeals of Ohio, Cuyahoga County.

May 23, 1956.

Halle, Haber, Berick & McNulty, Cleveland, for appellees.

Walter & Haverfield, Cleveland, D. Rusk Haverfield and Ben Bailey, Cleveland, of counsel, for appellant.

HURD, Judge.

These two separate actions are here appealed on questions of law from judgments of the Probate Court of Cuyahoga County whereby the petitioners were authorized to present claims against the estate of Dr. Frank M. Natherson, formerly a practicing physician, more than four months after the appointment of his widow, Esther M. Natherson, as the administratrix of his estate.

The petitioners, Evelyn Kenney and Harold Kenney, wife and husband respectively, filed substantially identical petitions in Probate Court. The claim of the wife, Evelyn Kenney, is for damages arising out of alleged malpractice by the decedent who is charged with negligence in the performance of a gall bladder operation upon her on or about February 17, 1954. The claim of the husband, Harold Kenney, is for loss of her services. The cases are considered together because identical issues are involved, it having been stipulated that the testimony introduced upon the hearings in Probate Court should apply equally to both cases.

Dr. Natherson died June 19, 1954. The administratrix was appointed July 13, 1954. On March 25, 1955, over eight months later, the plaintiff-appellees filed their petitions seeking authority to file claims against the decedent's estate. Each of said petitions alleged that the claims were not presented to the Administratrix within the time prescribed by law for the following reasons:

1. 'Claimant did not have actual notice of the decedent's death or of the appointment of his Administratrix within sufficient time to present her claim within the period prescribed by Section 2117.06 of the Revised Code' and

2. 'Decedent willfully and maliciously concealed from her the malpractice which he had performed upon her, so that she did not learn until recently of the tort committed against her by the decedent.'

Hearings were held in Probate Court July 18, 1955 and on October 24, 1955, the Probate Court entered orders allowing the presentation of the claims pursuant to the petitions.

The appellant assigns as error that such orders are contrary to law and against the weight and sufficiency of the evidence adduced at the trial.

Section 2117.06 of the Revised Code provides that all claims shall be presented within four months after the appointment of the executor or administrator.

Section 2117.07 of the Revised Code authorizes the Probate Court to allow the filing of a 'late claim,' that is, after four months, if:

'(A) That the claimant did not have actual notice of the decedent's death or of the appointment of the executor or administrator in sufficient time to present his claim within the period prescribed by section 2117.06 of the Revised Code;

'(B) That the claimant's failure to present his claim was due to the absence of the executor or administrator from his usual place of residence or business during a substantial part of such period or was due to any wrongful act or statement on the part of the executor or administrator or his attorney;

'(C) That the claimant was subject to any legal disability during such period or any part thereof.'

Appellant claims that the foregoing provisions of Section 2117.07 of the Revised Code are exclusive remedies and that if appellees have not qualified themselves under one of the provisions thereof, they are forever barred from filing a 'late claim.'

The appellees claim that they have qualified themselves under Subsection (A) of Section 2117.07 of the Revised Code and also that decedent's claimed concealment of his alleged malpractice tolled the running of the statute against appellees.

The claim of the appellees that they are qualified under Subsection (A) of Section 2117.07, R.C., in that they did not have actual notice of the decedent's death, cannot be sustained as, according to their own testimony set forth in the record, the appellees had actual notice of decedent's death at or about the time thereof by reading newspaper articles published at the time of that event. The fact that their knowledge was acquired from reading newspaper articles does not proscribe it from being actual notice within the meaning of the statute. The statute does not define or prescribe any particular form of notice. The provisions of the statute are satisfied if actual notice which amounts to knowledge of the fact is acquired by the parties. In this case, both parties testified not only that they knew of the death of Dr. Natherson but because of that knowledge, proceeded to look for another family physician. Nor would it be material as to whether or not the appellees had knowledge of the appointment of the administrator of the decedent's estate as it has been held by our Supreme Court in In re Estate of Marrs, 1952, 158 Ohio St. 95, 107 N.E.2d 148, that knowledge of either death or the appointment of an administrator is sufficient and that such knowledge would preclude relief. The Court held in that case that the word 'or' as used in § 10509-134, G.C. (now § 2117.07, R.C.) is used in its ordinary sense or meaning as a disjunctive, and to substitute the word 'and' for 'or' would be to attribute to the General Assembly the doing of a useless thing. For a discussion of the subject of notice and knowledge acquired by reading newspaper articles reporting the death of a decedent see In re Estate of Hamlin, Ohio Prob., 87 N.E.2d 691.

The appellees' second argument for affirmance of the decision of the Probate Court obviously does not constitute a basis for relief within the provisions of Section 2117.07, R.C., for it is not alleged or argued that there was any wrongful act on the part of the administratrix or her attorney which would qualify the petitioners under Subsection (B) of the statute. Here it is claimed that there was 'concealment' on the part of the decedent for which no relief is provided by the nonclaim statute as an examination of Subsection (B) clearly shows. Nor is there any claim that the parties were subject to any legal disability under Subsection (C) of the statute.

In our view of the record in this case, we do not find that the decedent was guilty of attempting to conceal or cover up any failure on his part with respect to the gall bladder operation performed on the petitioner, Evelyn Kenney. It appears, as shown by the record, that the general conduct of the deceased physician was such as to negative the idea of fraud or concealment although it is also clear that he did not explain to the patient the precise nature of her post-operative condition. Neither is it shown by the record that he knew the exact nature of that condition. Also his act of calling in another surgeon to perform a second operation rather than attempting to perform it himself tends to dispel a fraudulent intent to conceal the reasons for the failure of the first operation. However, in our opinion, this is immaterial because of the limitations provided by the statute and our interpretation of the decided cases. Sections 2117.06 and 2117.07 of the Revised Code and the predecessor statutes § 10509-112 and 10509-134, G.C., have been variously designated as nonclaim statutes or statutes of limitations. Beach v. Mizner, 131 Ohio St. 481, 3 N.E.2d 417; In re Estate of Erbaugh, 73 Ohio App. 533, 57 N.E.2d 294; and Conrad v. Sarver, 97 Ohio App. 199, 124 N.E.2d 749.

In some other jurisdictions a clear distinction is made between nonclaim statutes as such and general statutes of limitation. For instance, in the case of Yniestra v. Tarleton, 67 Ala. 126, it is held that the general provisions of the statutes of limitations are not applicable by analogy to a nonclaim statute. We think the designation of...