Prudential Ins. Co. of America v. Joyce Bldg. Realty Co.

• Decision Date: 19 July 1944
• Docket Number: 29885,29886.
• Citation: 56 N.E.2d 168,143 Ohio St. 564
• Parties: PRUDENTIAL INS. CO. OF AMERICA v. JOYCE BLDG. REALTY CO. et al. SAME v. HUNTINGTON NAT. BANK OF COLUMBUS.
• Court: Ohio Supreme Court

56 N.E.2d 168

143 Ohio St. 564

PRUDENTIAL INS. CO. OF AMERICA v. JOYCE BLDG. REALTY CO. et al.

SAME v. HUNTINGTON NAT. BANK OF COLUMBUS.

Nos. 29885, 29886.

Supreme Court of Ohio

July 19, 1944

Syllabus by the Court.

1. Sections 10509-112 and 10509-134, General Code (114 Ohio Laws, p. 320), must be construed together and are statutes of limitation (or nonclaim statutes) which bar creditors' claims unless presented to an executor or administrator within four months after the date of appointment. Paragraphs one and two of the syllabus in the case of Beach Rec'r, v. Mizner, Ex'r, 131 Ohio St. 481, 3 N.E.2d 417, approved and followed.

2. The requirements of Section 10509-112, General Code, that 'creditors shall present their claims, whether due or not due, to the executor or administrator within four months after the date of his appointment' are mandatory and may not be waived by him.

Appeals from Court of Appeals, Franklin County.

In these cases the plaintiff, The Prudential Insurance Company of America, is seeking judgments against the defendant, The Huntington National Bank of Columbus as trustee under the will of Marshall A. Smith, deceased, who signed notes evidencing loans made by the plaintiff to The Joyce Building Realty Company and The Hi-Walnut Realty Company respectively.

Following the death of Mr. Smith, his son and the defendant bank were appointed executors of his estate. At the conclusion of the administration of the estate the remaining State, 136 Ohio St. 526, 27 N.E.2d 142. the bank as trustee in conformity with the terms of the will.

In the Court of Common Pleas judgments were rendered for the plaintiff.

Both cases were appealed to the Court of Appeals on questions of law, and final judgments were rendered in favor of the defendant trustee.

The cases are in this court for review by reason of the allowance of motions to certify the records.

C B. Folkerth, Arnold, Wright, Purpus & Harlor and Earl F Morris, all of Columbus, for appellant.

Tussing & Lane, of Columbus, for appellees.

WEYGANDT Chief Justice.

The basis of these controversies is the fact that in each case the plaintiff failed to present its claim to the executors within a period of four months as provided by Section 10509-112, General Code (114 Ohio Laws, p. 426), and likewise failed to file a petition for reinstatement of the claim under the provisions of Section 10509-134, General Code (114 Ohio Laws, p. 431).

The first question presented is whether the requirements of Section 10509-112, General Code, are mandatory or merely directory. The language of this section is as follows:

'Creditors shall present their claims, whether due or not due, to the executor or administrator within four months after the date of his appointment. Such executor or administrator shall allow or reject all claims, except contingent claims, within thirty days after their presentation. Any claim presented after the time herein provided shall not prevail as against bona fide purchasers or as against executors and administrators who have acted in good faith, or against a surviving spouse who has made the election to take under the will or at law, and, except as to negotiable instruments maturing subsequent to the expiration of such time, any such late claim shall not prevail as against bona fide distributees.'

The notes upon which these cases are predicated were overdue at the time of Mr. Smith's death. In construing this section this court in the syllabus of the case of Beach, Rec'r, v. Mizner, Ex'r, 131 Ohio St. 481, 3 N.E.2d 417, unanimously held that:

'1. Sections 10509-112 and 10509-134, General Code (114 Ohio Laws, 320), must be construed together.

'2. These sections are statutes of limitation (or nonclaim statutes) which bar creditors' claims unless presented to an executor or administrator within four months after the date of appointment.

'3. A barred claim may be reinstated and presented to an executor or administrator upon leave first obtained from the probate court in the manner provided in section 10509-134, General Code.'

In the opinion it was noted that in the very first sentence appears the unambiguous, mandatory requirement that 'creditors shall present their claims * * * within four months.' Nothing in the context weakens the force of this clear language employed by the General Assembly.

Later, in the opinion in the case of State ex rel. Fulton, Supt., v. Coburn, 133 Ohio St. 192, 12 N.E.2d 471, the decision in the Beach case, supra, was cited and approved.

Likewise, in the case of Pierce v. Johnson, Ex'r, 136 Ohio St. 95, 23 N.E.2d 993, 125 A.L.R. 867, this requirement was held applicable to an unliquidated claim for damages arising out of tort.

However the plaintiff contends that it did not learn of the death of Mr. Smith until after the executors had administered the estate and the remaining assets had been placed in the hands of the trustee; that the executors had knowledge of the plaintiff's claims; that they listed the claims in the schedule of debts which was filed within four months; that after the expiration of that period they made payments on the claim involved in the first case; and that the decision of this court in the case of Gerhold, Adm'x, v....