Phares, Admr. v. Lincoln Natl. Bank, Admr. , 42 Ohio App. 433 ( 1931 )

These cases are presented to this court on error from judgments of the court of common pleas of Hamilton county, wherein that court, in hearings on appeal from the probate court of Hamilton county, refused to sustain exceptions to the allowance of fees made by the probate court to a special administrator and his counsel, and exceptions to the final account of such special administrator, dismissing the appeals from the probate court.

Ella T. Yeager died in California October 7, 1929, testate. Her last will was executed in California shortly before her death. She had ordered the Lincoln National Bank in Cincinnati, Ohio, to send to her in California certain securities in its possession. The bank transmitted these securities to its correspondent bank in California, with instructions not to deliver unless the decedent was physically and mentally able to sign a receipt therefor. The correspondent bank did not make delivery of the securities; the decedent at the time of their arrival in California being then in a comatose condition. An unsuccessful attempt was made to secure administration in California; the court there finding that the decedent at the time of her death was a resident of Ohio.

Pending the proceedings in California, the Lincoln National Bank was appointed special administrator by the probate court of Hamilton county, to collect and preserve the effects of the deceased in Hamilton county, and, as far as the record shows, performed these duties.

After the termination of the proceedings in California, letters of administration were granted by the probate court of Hamilton county to one Carl Phares, who, on behalf of the estate, and in his official capacity, requested the special administrator to turn over to him the effects of the decedent. This request was refused for several months after the special administrator had been furnished certified copies of the general administrator's letters of administration.

The special administrator, previous to delivery of the assets of the estate to the general administrator, made application for, and was allowed, compensation, including certain costs and attorneys' fees incurred by the special administrator in performing certain services through local and California counsel, resisting California administration of the estate.

The application and allowance were made in the special administration, and the special administrator then credited itself with the allowances, submitted a final account, and delivered the net proceeds of the effects to the general administrator.

Exceptions were taken by the general administrator to the allowance of fees and costs incidental to the California proceedings, and to the final account of the special administrator, in which credit was taken for payment of such allowances to it and its counsel, local and foreign. These exceptions were overruled by the probate court, and its ruling was sustained by the court of common pleas, which dismissed the appeals taken to it.

The provision of the statutes covering the appointment and functioning of a special administrator are plain and explicit and free from any possible misinterpretation. Section 10619, General Code, provides for the appointment of a special administrator "to collect and preserve the effects of the deceased."

Section 10621, General Code, provides: "Such special administrator must collect the goods, chattels, and debts of the deceased, and preserve them for the executor or administrator who thereafter is appointed. For that purpose he may begin and maintain suits as administrator, and also sell such perishable and other goods as the court orders sold. He shall be allowed such compensation for his services as the court thinks reasonable, if he forthwith delivers over to the executor or administrator who supersedes him, the property and effects of the estate, as hereinafter provided."

The special administrator is simply a stakeholder, and has no interest in who shall finally be the general administrator, or whether the administration shall be in a domestic or foreign jurisdiction. We agree with the conclusions of Judge Richards stated in the case of Dicken, Admr., v. Strasburger, 31 Ohio App. 18, 166 N.E. 143.

There was no authority for the activities of the special administrator incidental to the proceedings in California.

The securities of the decedent, transmitted to the correspondent bank of the special administrator, were still in its possession, being in the hands of its own agent.

The statute further specifically contemplates that the special administrator shall "forthwith" deliver to the general administrator the effects of the decedent in its hands. It is not given a lien upon these effects for its services, and it will be fully protected in presenting its claim for just compensation in the general administration.

The action of the special administrator in withholding delivery was wholly contrary to the statutes, especially as its compensation is made dependent upon the precedent condition "if he forthwith delivers over to the executor or administrator who supersedes him, the property and effects of the estate."

The same prompt unqualified delivery is mentioned in Section 10622, General Code, which reads as follows: "Upon the granting of letters testamentary or of administration, the power of the special administrator shall cease, and he forthwith must deliver to the executor or administrator all the goods, chattels, moneys, and effects of the deceased in his hands. The executor or administrator may be admitted to prosecute any suit begun by the special administrator, as an administrator de bonis non is authorized to prosecute a suit commenced by a former executor or administrator."

The exception to the allowance of any compensation or fees in the special administration should have been sustained.

The judgments of the court of common pleas and probate court are reversed, and the cause is remanded to the probate court, with instructions to sustain the exceptions, and for such further proceedings as may be in accordance with law.

Judgment reversed and cause remanded.

HAMILTON and CUSHING, JJ., concur.