SUPREME COURT OF OHIO.

WILLIAM A. PEPPER

v.

N. H. SIDWELL, ADMINISTRATOR.

In an action against an administrator, the objection that the claim sued on was not presented for allowance before the action was brought, is waived, where the administrator joins issue and goes to trial on the validity of the claim without objection.

Error to the District Court of Brown County.

The plaintiff, William A. Pepper, brought an action against W. N. Raney and N. H. Sidwell, as administrator of the estate of James Sidwell, deceased, on a promissory note, joint in form and dated April 1, 1866, by which said Raney and James Sidwell promised to pay to the order of the plaintiff, the sum of $1,218.50, with interest at ten per cent., at twelve months from date. The petition did not aver that the note or claim had been exhibited to the administrator for allowance, and by him disputed or rejected, nor that eighteen months had expired from the date of the administration bond or the further time allowed by the court for the collection of the assets of the estate of James Sidwell; nor were facts stated showing the case to fall within any of the exceptions of section 98 of the administration act.

No demurrer was interposed to the petition, and the only defense set up by the answer of N. H. Sidwell, administrator, was that James Sidwell was only a surety on the note, and that after the same became due, the plaintiff and Raney, the principal maker, entered into a valid agreement for the extension of the time of payment of the note without the consent of said intestate.

Wherefore, he prayed to be dismissed with

costs.

Issue was joined by a reply, and the case went to trial to a jury. On the trial, the defendant Sidwell proved, without objection, that the pro bate court extended the time for the settlement of said James Sidwell's estate, first for one year from March 24, 1868, and again from February 10, 1871, until October 10, of the same year. suit was brought long before this time expired. The court was asked by the defendant, Sidwell, to instruct the jury as follows:

The

"If the jury find from the evidence in the case, that the said defendant was appointed administrator in the month of October, 1866, and that on the 26th day of March, 1868, the probate court of Brown county, Ohio, on application of said administrator, gave him the additional time. of one year to collect the assets of said estate, and that said time had not expired at the date of the commencement of this action against said administrator, then the verdict of this jury must be for the said defendant."

The instruction was refused and an exception noted. The jury found a verdict for the plaintiff, on which judgment was rendered in the court of common pleas, but which the district

court reversed. This is a petition in error to reverse the judgment of the district court. White & Waters, and Thomas & Thomas, for plaintiff in error.

Loudon & Young and John G. Marshall, for defendant in error.

BOYNTON, C. J.

We suppose that the judgment of the court of common pleas was reversed by the district court upon the ground that the claim sued on had not been presented to the defendant in error for allowance as a valid claim against the estate of James Sidwell, it having been shown in evidence without objection, that the action was brought before the expiration of the time allowed by the probate court for the collection of the assets of the estate.

But

The petition contained no averment that the note or claim sued on had been exhibited to the administrator, and had been disputed or rejected by him; nor that the period of eighteen months, or the further time allowed by the court, if any, to collect the assets of the estate, had elapsed, before the commencement of the action; nor was there any averment either that the estate had been represented to be insolvent, and that the action was brought to settle the validity of a contested claim, or that the claim was one that would not be affected by the insolvency of the estate, if such insolvency in fact existed. the defendant neither demurred to the petition, nor did he take any objection by answer that the claim had not been presented for allowance. On the contrary he set up a defense to the merits of the claim, and went to trial on the issue joined thereto. In view of these facts we think he should be held to have waived the right to rely on the failure of the plaintiff to show a presentation and rejection of the claim, as a defense to the action. That a petition against an administrator is defective that does not show that the claim was presented and disallowed, or that the necessary time has preceded the commencement of the action, was held in Hammerle v. Kramer, (12 Ohio St. 252); and it was also there held, that the petition might be demurred to as not stating facts sufficient to constitute a cause of action against the administrator. In commenting on the question as one of practice, Scott, C. J., said: "As under the provision of this section, no action can be maintained against an administrator, by a creditor, till after the lapse of eighteen months from the date of the bond, unless in certain specified cases, we think the petition of the creditor should aver the necessary lapse of time. This is a condition essential, generally, to the plaintiff's right of action. It is also affirmative in its character, and if denied, the burden of proof is on the plaintiff, and we think, unless it is averred, the plaintiff does not show even a prima facie right to sue." This language had reference to the right of the administrator to raise the question of the plaintiff's right to sue by demurrer, where the petition did not show that the claim had been presented and rejected, or the

lapse of the time necessary to the maintenance of the action.

To the rule there laid down we fully adhere. In that case, the objection was timely taken and insisted on, that the petition failed to show such facts as rendered the administrator liable to an action at the time the action was brought. The case, however, does not support the proposition that the administrator, who takes no objection either by demurrer or answer to the failure of the plaintiff to bring the case within the statute, may go to trial under a defense by which he contests the validity of the claim sued on, and in case of failure in such defense, may fall back and defeat recovery on the ground that the claim was not presented for allowance, and conse quently, that the action was prematurely

brought. The provision of the statute exempting the administrator from liability to be sued, until certain preliminary steps are taken, or a certain period of time has elapsed. is a privilege that may be waived. The object of the statute is to afford the administrator an opportunity to allow all valid claims against the estate, and thereby avoid litigation and expense. It was designed to protect estates from unnecessary costs and vexation where the administrator is satisfied that the claim is just and valid. Here the validity of the claim was in fact disputed at the trial, and the liability of the defendant thereon denied, and the plaintiff subjected to large expense and trouble in resisting a defense

made to its merits.

To subject him to the expense and hazard of a trial, and then deprive him of a judgment, notwithstanding the issues were determined in his favor, upon the ground that the petition was defective in the particular mentioned, would be manifestly unjust. The conduct of the administrator, in contesting the claim, shows that the estate lost nothing by the omission to present the claim for allowance. In our judgment, where the petition fails to show the disallowance of the claim, or that the time allowed for the collection of the assets of the estate elapsed before the commencement of the action, and the defendant takes no objection either by demurrer or answer, but goes to trial upon issues in which he contests the validity of the claim, it is too late to insist on the non-presentation of the claim, or the premature bringing of the action, as a defense to the plaintiff's right to recover. Other questions are made by the record, none of which, in our opinion, justified the district court in reversing the judgment of the court of common pleas. Judgment of the district court reversed and that of the common pleas affirmed.

[This case will appear in 36 O. S.]

KEEPING BORROWED BOOKS.-Sir Walter Scott once lent a book to a friend, and as he gave it to him begged that he would not fail to return it, adding, good humoredly, "Although most of my friends are bad accountants, they are all good book-keepers."

SUPREME COURT OF OHIO.

WILLIAM A. KING, GUARDIAN OF CAROLINE F. COOPER,

บ.

SAMUEL S. BEll, et al.

B. was appointed and qualified as guardian of C., an infant, and a person of unsound mind; but the record was silent as to the grounds of the appointment. C. was of unsound mind when she arrived of age, and so continues. For more than seven years after C. was of age B. acted as her guardian, and was repeatedly so recognized by the court in settling his accounts, in requiring a new bond, approving the same when presented, and in accepting his resignation and settling his final account. Held:

1. That, as the court had jurisdiction to appoint a guardian, on the grounds of lunacy as well as infancy, the presumption is, upon the facts stated, that the appointinent covered both grounds.

2. That in such case, the taking of the new bond after C. arrived of age, but while still of unsound mind, was authorized by law.

3. The sureties on such new bond are liable for a breach of its conditions.

4. In an action against three defendants, upon a joint and several obligation, final judgment was rendered in favor of two of said defendants, and the action was allowed to stand undisposed of as to the third.

In a petition in error by the plaintiff to reverse the judgment against him in favor of the two defendants, the third, against whom no final judgment has been rendered is not a necessary party.

Error to the District Court of Licking County. The court of common pleas and district court sustained a demurrer, filed by defendants Flory and Shields, to the following petition, on the ground that no cause of action was stated against

them :

"The said plaintiff, William A. King, as the guardian of Caroline F. Cooper, for cause of action herein, says:

"That on or about the 4th day of February A. D. 1856, the said Samuel S. Bell was appointed by the probate court of said county to be the guardian of the said Caroline F. Cooper, who was then a resident of said county, an infant, and (as the plaintiff is informed and believes) a person of unsound mind; that the entry of said appointment, made upon the records of said probate court,did not contain any express adjudication that the said Caroline was then a minor of unsound mind; but stated that said Bell was appointed guardian of Caroline F. Cooper, aged seven years, heir-at-law of Elijah Cooper; that the said Bell then gave bond according to law, and entered upon the discharge of his duties as such guardian; that the said Caroline became eighteen years old on or about the 20th day of April, A. D. 1867, and at the time of arriving at that age she was and has ever since then, been a person of unsound mind, and incapable of managing her business affairs; that the said Bell, from that time until the 16th day of September, A. D. 1874, acted as her guardian, and from time to time, in the years of 1867, 1869 and 1871, filed his accounts as such guardian, in the said probate court, in which accounts he asserted himself to be such guardian; and his said accounts were passed upon and settled by said court accordingly; that on or about the 3d day of April, A. D. 1871, the said Bell appeared in and

before the said probate court, and represented to the same that Justin Morrison and Alexander Morrison, his sureties on his bond, as such guardian, theretofore given in said court, were nonresidents of Licking County; thereupon, upon the motion of said Bell, the following order or judgment was made by said court:

"IN THE MATTER OF THE GUARDIANSHIP OF CAROLINE F. COOPER.

"This day came Samuel S. Bell, guardian of Caroline F. Cooper, and on his representation that Justin Morrison and Alexander Morrison, his sureties on his bond, heretofore given in this court, as such guardian, are non-residents of Licking County, and for other causes on the motion of said guardian, it is ordered by the court that said guardian enter into a new bond in the sum of $12,000, as such guardian, with William Shields and Abraham Flory, freeholders of this county, as his sureties, conditioned according to law, and the said guardian having entered into said new bond, the same is approved and filed. "That on the 3d day of April, A. D. 1871, the defendants made and delivered to the judge of the said court of probate, their writing obligatory-of that date, scaled with their seals, and a copy of which is attached to the orignal petition herein, and made a part of this petition), and thereby bound themselves, jointly and severally, to pay to the State of Ohio the sum of $12.000.

"That the said bond was and is subject to the condition that it should become void if the said Bell should faithfully discharge his duties as such guardian, and otherwise, to be and remain in full force; that on the same day the said bond and sureties were approved by said court.

"That on the said 16th day of September, 1874, the said Bell resigned bis guardianship, and certain proceedings were had in said probate court touching the same. The record whereof is in the following words:

"Be it remembered, that on this day, Samuel S. Bell, guardian of Caroline F. Cooper, a lunatic,! tendered to this court his resignation as such guardian; and which resignation, for reasons satisfactory to the court, is hereby accepted, and said guardian is hereby ordered to file his final account herein, which is accordingly done.

"That, thereupon, on the 22d day of September, 1874, the plaintiff herein was appointed by said probate court to be guardian of the said Caroline as a lunatic or person of unsound mind, and on that day he gave bond, with sureties, according to law, which was approved by the court, and he entered upon the discharge of his duties as such guardian.

"That during the time the said Bell was so acting as guardian, as aforesaid, there came to his hands, of the moneys and estate of said Caroline, the sum of five thousand dollars or more; that the said Bell having, on the 14th day of October, 1874, filed his final account as such guardian in said probate court that there was, and in fact there then was in the hands of the said Bell, of the moneys aforesaid, the sum of four thousand one hundred

and twenty-six dollars and eighty-four cents ($4,126.84), interest being computed to the said last named day, and which sum the said probate court then ordered the said Bell forth with to pay to the plaintiff.

"That on the 8th day of December, A. D. 1874, the plaintiff, as such guardian, demanded of said Bell the payment of said last named sum; but he has not paid the same or any part therof, exJanuary 8th 1875. The plaintiff demands judgcept the sum of $330.14, paid by his assignee on thousand eight hundred and twenty-six dollars ment against the defendants for the sum of three day of January, A. D. 1875. and eighty-nine cents, with interest from the 8th "J. BUCKINGHAM,

Attorney."

notion in that behalf, says that the said sum of "The plaintiff, yielding to the defendant's five thousand dollars, or more, received by said Bell was so received before the said 3d day of April, A. D. 1871, and before the making of the

bond, on which this writ is founded. "J. BUCKINGHAM,

Plaintiff's Attorney.

The demurrers of Flory and Shields to the pedered in their favor, leaving the case to stand as tition were sustained, and final judgment rento Bell in the common pleas. He is not a party to this proceeding in error.

J. Buckingham, for plaintiff in error.
J. A. Flory, for defendant in error.
JOHNSON, J.

It is claimed that said petition does not state facts sufficient to constitute a cause of action against the sureties on said bond. 1st. Because the probate court had no authority to require, receive or accept the same; 2d. There is no breach alleged; 3d. It is void for a want of consideration; and. 4th. The bond was not delivered. It is further insisted, that as Bell is not a party to this proceeding in error, this court has no jurisdiction.

1. The point is made that Bell, who is the principal on the bond and a defendant in the original action, is a necessary party in this proceeding in error. Smethers v. Rainey (14 Ohio St. 287) and Jones v. Marsh (30 Ohio St. 20) hold that all parties to a joint judgment should be parties in error. Here the final judgment was in favor of Flory and Shields, and against plaintiff, and the case stands undisposed of as to Bell on the common pleas docket. This is authorized by section 371 of the Code, the action being upon a joint and several cause of action.

All the parties to this final judgment are before this court.

2. The petition alleges the delivery of the bond and its approval by the court, as in all like cases. Hence the claim that there was no delivery of the bond is not well founded.

3. Neither is the claim that there is a want of consideration for the bond, if it is otherwise valid. If the court had the power to take and approve this bond, the consideration is sufficient. 4. The principal, and, indeed, the only ques

tion of difficulty in the case, is as to the authority of the court to take this bond.

Bell was appointed guardian February 4, 1856. The statute vested in the probate court exclusive jurisdiction to appoint and remc ve guardians, to direct and control their conduct, and to settle their accounts. Swan R. S. 1854, 753, a. This power embraced the appointment of guardians for minors (Swan R. S. 1854, p. 444), and idiots and lunatics. S. & C. 847.

In the appointment of guardians for lunatics, all laws relating to guardians for minors, and their wards, and pointing out the duties, rights and liabilities of such guardians and their sureties, in force for the time being, are made applicable to guardians for idiots and lunatics, and their children, so far as the same are in conformity with the provisions of the act relating to lunatic asylums. S. & C. 840, §45.

The law in force "for the time being," when the bond in suit was approved and filed, relating to guardians of minors, was the act of 1858. S. & Č. 670. By section 8 full power is given the court over the bonds of guardians on exceptions thereto, and upon its own motion it may require guardians to give additional bonds, whenever the interest of the ward shall demand.

Section 9 provides that "No bond executed by a guardian after this act shall take effect" (July 1, 1858) "shall be void or held invalid on account of any informality in the same, nor on account of any informality or illegality in the appointment of such guardian; but such bond shall have the same force and effect as if such appointment had been legally made and such bond executed in proper form." The bond in suit is subject to the provisions of this section.

The facts admitted by the demurrer are:

1. That in 1856, Bell was duly appointed and qualified as guardian of Caroline F. Cooper, who was then both an infant and a person of unsound mind, and entered upon the discharge of his duties as such guardian, and so continued to act until his resignation, which was accepted by the ccurt September 16, 1874, and the present plaintiff was appointed his successor as guardian of said Caroline, a lunatic.

2. That at her arrival of age, April 20, 1867, she was still of unsound mind, and without any further action of the court, so far as the record shows, Bell continued as guardian, and in 1867, 1869 and 1871, filed his accounts as such with the court, which were audited and settled; the court in all respects recognizing and treating him as the legal guardian, as well after as before her majority.

3. That in April, 1871, nearly four years after her coming of age, Bell represented to the court that his sureties had removed from the county, and on his application and upon an order of the court requiring it, he and the present defendants executed and delivered the bond in suit, which was, on his motion, approved and filed, whereupon he was permitted by the court to continue his guardianship until his resignation and the appointment of his successor.

4., October 14, 1874, in pursuance of the order of court, he filed his final account, which was audited and settled November 24, 1874, showing a balance due his ward of $4,126.84, which he was ordered to pay over to plaintiff, but has failed to do so, except a small amount stated.

5. That prior to the giving of the present bond, April 3, 1871, he had received $5,000 or more of his ward's moneys, and had in his hands, in fact, said sum of $4,126.84 at the date of his final settlement, which, on demand, he refused to pay

over.

We have not been furnished with a copy of the judgment of the court, making the appointment of Bell in 1856, but it is averred that Bell was then appointed guardian of the said Caroline F. Cooper, who was then an infant, and, as the plaintiff was informed and believes, a person of unsound mind; and it is averred there was no express adjudication by the court, upon what grounds the appointment was made; that is, whether she was a minor, or of unsound mind, or both.

The court having jurisdiction on either or on both grounds, to make the appointment, its validity cannot be inquired into collaterly, though the record is silent as to the particular ground upon which the appointment was made. Shroyer v. Richmond, 16 Ohio St. 455. Neither upon this state of facts does the presumption arise, that the appointment was made solely on the ground of infancy.

For over seven years after the ward's majority, Bell acted as guardian of a lunatic. The court so recognized him as her legal guardian by receiving and settling his accounts, by ordering and approving a new bond and allowing him to continue to act, though the record showed she was over age, by accepting his resignation and appointing his successor as guardian of a lunatic. All this is utterly inconsistent with the presumption that the appointment was made on the ground of infancy alone, but is in harmony with the presumption that the judgment of the court, by which he was appointed, was either based on the unsoundness of mind, or of that, as well as infancy.

In the absence of an express adjudication of the grounds for this appointment to the contrary, and in view of the fact that, after the ward arrived of age, the court continued for several years to judicially recognize him as the legal guardian, we are authorized to presume that this appointment covered both disabilities, the lunacy as well as the infancy.

This being so, the court was authorized by section 8 of the guardian act to order and approve this bond.

The condition being for the faithful discharge by Bell of his duties as such guardian, as required by law, his sureties are liable thereon for a breach of the condition.

Judgments of the district court and of the court of common pleas reversed.

[This case will appear in 36 O. S.]

SUPREME COURT OF OHIO.

PHILLIPS, ASSIGNEE,

V.

Ross, ET AL.

Where a probate judge removes an assignce in trust for for the benefit of creditors, and orders him to deliver to his successor the property and effects in his hands belonging to the trust estate, which order he fails to comply with, an action will lie upon the bond of such assignee, in favor of his successor, to recover the damages resulting from the failure to comply with such order.

Error to the District Court of Muskingum County.

In June, 1861, E.E. Henderson, by deed of that date, conveyed and assigned all his property to James P. Ross, in trust for the benefit of his creditors. Ross accepted the trust and executed the

assignee, to pay over to his successor the amount of the trust estate, found to be in his hands, and which the probate judge, on his removal, ordered him to pay over, was a clear neglect of duty, for which he and his sureties were liable on his bond, and liable, we think, to the plaintiff. The plaintiff was the representative of all persons entitled to the fund to be distributed, and, within the meaning of the statute, was a person injured by the failure of Ross to pay over the fund in his hands, belonging to the trust estate.

Judgment of the district court and of the court of common pleas reversed, and cause remanded to the common pleas for further proceedings. [This case will appear in 36 O. S.]

SUPREME COURT OF OHIO.

ROTT AND OTHERS

On May 29, 1866, Ross filed a statement of his account in settlement of his trust in the probate court, and upon exceptions thereto, the court found a balance of $766.44 in his hands for distribution among creditors. Failing to account for this sum the probate judge subsequently removed him, as assignee, and appointed the plaintiff in his stead, and ordered said Ross to pay over to the plaintiff the said sum of money, and interest thereon, from the date of said settlement.

Upon the failure of Ross to comply with such order the plaintiff brought an action upon said bond to recover said sum and interest. To the petition setting out the facts, the defendants Bell and Lane demurred for want of facts sufficient to constitute a cause of action. The court of common pleas sustained the demurrer, and dismissed the petition, and the district court affirmed the judgment. To reverse these judgments is the object of this proceeding in error. T. J. Taylor, for plaintiff in error. L. P. Marsh, for defendant in error. BY THE COURT.

Section 14 of the act regulating the mode of administering assignments in trust for the benefit of creditors (1 S. & C. 712), authorizes the probate judge to remove the assignee for good cause, and to appoint another in his stead, and to make and enforce all orders necessary to cause the property and effects belonging to the trust estate to be delivered to the newly appointed trustee. Section 1 of the same act, requires the trustee to whom the debtor's property was assigned to enter into an undertaking payable to the State, in such sum and with such sureties as shall be approved by the probate judge, conditioned for the faithful performance, by said trustee, of his duties according to law, and authorizes an action to be brought on said undertaking against the assignee and his sureties, by any person injured by the misconduct, or neglect of duty, of the assignee in regard to said trust. The failure of Ross, the

THE BOARD OF PUBLIC WORKS OF THE STATE OF OHIO.

1. The special appropriation act of May 13, 1878 (75 Ohio L. 539), whereby the board of public works was limited to $20,000 of the appropriation from the general revenue in the purchase of dredges, &c., required to keep the public works in repair, was not intended as a limitation upon the power to purchase implements necessary to keep the works in repair, as conferred upon the board by the act

of April 4, 1859 (Revised Statutes, 1901), nor upon the

power of the board to use the income of the public works, arising from tolls, fines and water rents, for the purchase of such necessary implements, as appropriated by such special act. And although the appropriation thus made expired, by constitutional limitation, at the end of two years, a like appropriation was made in the general appropriation act of 1880.

2. The board of public works having purchased from the lessees of the public works certain dredges, etc., for $38,820, to be paid as follows: $20,000 in hand, and balance in equal payments at three and six months, and being afterward advised, and beleiving that, the promise to pay in excess of $20,000 was unauthorized and void: Resolved, to pay on such contract the said sum of $20,000, leaving it to the lessees to obtain a ratification of the contract by the general assembly, and an appropriation to pay the balance; and, thereupon, the lessees, with knowledge of said resolution, accepted the $20,000. Held, That the lessees were not thereby precluded from demanding payment from the board, in accordance with the terms of the contract.

3. The state is not bound by the terms of a general statute, unless it be so expressly enacted.

4. In the absence of a statute requiring it, or a promise to pay it, interest cannot be adjudged against the state for delay in the payment of money.

5. In a proceeding in mandamus, where judgment is given for the plaintiff, section 6753 of the Revised Statutes does not authorize the assessment of damages against the state in favor of the relator.

Mandamus.

Previous to the year 1861, the public works of the state were under the exclusive control of the board of public works. During that year, the public works were leased to the relators for a term of ten years, which was afterward extended ten years more. In 1878, the lessees having abandoned the public works, because of an alleged violation of the contract of lease, the general assembly, by joint resolution adopted May 11, required the board of public works to take immediate possession thereof. On the 18th of the same month, the board, being in possession of the works, entered into an agreement with the lessees for the purchase of dredges, boats, tools and other implements necessary to keep the public works in repair