Philips v. State ex rel. Harter , 5 Ohio St. 122 ( 1855 )

Bartley, J.

The power of proceeding by citation or attachment against an administrator or executor, for neglect to file his settlement accounts as required by law, is a necessary incident to the proper exercise of the jurisdiction of a probate court; and the statutory provision, in the present administration laws of the ’ State, expressly authorizing such proceedings, is only in affirmance of that incidental power essential to enable a probate court to control and direct the settlement of the estates of deceased persons.

And although such proceeding by citation or attachment, is not an action at law within the purview of the statute of limitations, but a simple proceeding in the court of probate, usually preparatory to the commencement of a suit on the administration bond; yet the lapse of time, after the default of an administrator in filing his settlement accounts, which is sufficient to bar an action on the' administration bond, or to amount to a • defense against a proceeding in equity for a discovery and account, will constitute a sufficient defense against any such proceeding by citation or attachment.

True it is, that the doctrine, that a technical or direct trust is not barred by lapse of time, is usually recognized, yet it is subject to the following important qualifications, namely: That this rule in equity is dispensed with, except in cases of fraud and concealment; first, where there is a remedy by action at law to which a limitation is expressly fixed; second, where an open denial or repudiation of the trust is brought home to the knowledge of the parties in interest, which requires them to act as upon an asserted adverse title; and third, where circumstances exist calculated to raise a presumption, from lapse of time, of a discharge or extinguishment of the trust. And the defense set up in the answer to the citation in the probate court, in the case before us, clearly falls within the latter qualification of the rule.

Judgment of the Common Pleas reversed.