In Re Estate of Berman

This is an appeal on questions of law from the judgment of the Probate Court allowing exceptions to the inventory filed in the administration proceedings and ordering the executor to correct and amend schedule (C) of his inventory by listing a certain $10,000 cognovit note dated June 28, 1946, of Miriam and Donald Berman at a value of $10,000.

Under schedule (C) of the inventory the note in question is listed as follows:

"$10,000 cognovit note June 28, 1946 — Miriam Berman and Donald H. Berman — no interest (outlawed)."

Opposite said note in the column headed "Sum probably collectible" is the word "non."

Thereafter appellee, one of the heirs-at-law and a legatee, filed her exceptions to the inventory alleging that appellant, as executor, "failed to appraise the same (said note) at its value as of the date of death of the said decedent and failed to charge himself as such executor in the amount of the unpaid balance of said note as of the date of decedent's death, said asset being a just claim which the testator had against said executor and his wife."

It is contended by appellant that the Probate Court had no authority to determine the value of said note in the proceeding upon exceptions to the inventory. However, it seems clear that under the plenary power conferred upon the Probate Court incident to the administration of an estate it has complete power, after the hearing upon the exceptions provided under the provisions of Section 2115.16, Revised Code, to revise the determination of the value of any security as determined by the executor and the appraisers.

In reaching its decision and the entry of judgment thereon the court applied the provisions of Section 2115.12, Revised Code, reading as follows:

"The naming of a person as executor in a will shall not operate as a discharge or bequest of a just claim which the testator had against such executor. Such claim shall be included among the assets of the deceased in the inventory required by Section 2115.02 of the Revised Code. The executor shall be liable for it as for so much money in his hands at the time such debt or demand becomes due, and must apply and distribute it as part of the personal estate of the deceased."

This section is of ancient origin. See In re Estate ofKoons, 11 Ohio Opinions, 389, citing Admx. of Tracy v. Admr. ofCard, 2 Ohio St. 431; Hall, Admr., v. Pratt, 5 Ohio, 72; Exr. ofBigelow v. Admrs. of Bigelow, 4 Ohio, 138; McGaughey, Admr., v.Jacoby, 54 Ohio St. 487, and other authorities. But, in our opinion, the provisions of Section 2115.12, Revised Code, should be construed in pari materia with other sections of Chapter 2115 of the Revised Code. For example, Section 2115.02, Revised Code, provides that such inventory is to be based on values as of the date of the death of the decedent, and Section 2115.07, Revised Code, provides that the appraisers shall take an oath that they will truly, honestly and impartially appraise the estate and property exhibited to them and perform the other duties required in the premises according to the best of their knowledge and ability. Section 2115.09, Revised Code, provides that such inventory shall specify the name of the debtor in each security, the date, the amount originally payable, the endorsements thereon with their dates, the serial numbers or other identifying data as to each security, and the sum which, in thejudgment of the appraisers, can be collected on each claim.

In the instant case presumably it was the judgment of the appraisers that nothing could be collected on the note in question. This does not mean, however, that their judgment in the premises is final but that upon a hearing of exceptions to the inventory upon evidence adduced in support thereof the court can determine otherwise.

Inasmuch as it is apparent from the record at the hearing that the court based its conclusion that the note in question should be listed at face value solely on the basis of the provisions of Section 2115.12, Revised Code, without giving consideration to the application of the other sections above referred to in Chapter 2115, Revised Code, the judgment of the Probate Court is reversed and the cause is remanded thereto for a determination of the true value of the note in question as of the date of the death of the decedent.

We recognize that the defense of the statute of limitations is an affirmative defense and that the exceptor might present evidence upon the rehearing that notwithstanding the running of the statute the maker of the note had acknowledged the debt or may have made a payment thereon which tolled the statute. Upon the record of the hearing there is no evidence tending to show that the appellant intended to interpose the statute of limitations as a defense to the note. Upon this appeal we do not determine whether or not the circumstances are such as would require the court to remove the executor as provided by Section2113.18, Revised Code, providing as follows:

"The Probate Court may remove any executor or administrator if there are unsettled claims existing between him and the estate, which the court thinks may be the subject of controversy or litigation between him and the estate or persons interested therein."

The judgment of the Probate Court is reversed and the cause remanded thereto for rehearing upon the exceptions to the inventory.

Judgment reversed and cause remanded.

SMITH, J., concurs.

DEEDS, P. J., dissents.