Haag v. Meffley, Admr.

Under the allegations of the petition to which this appeal relates, plaintiff presented her claim on July 12, 1949, within four months after the appointment of the administrator de bonisnon but after four months from her appointment as administratrix.

Section 10509-154, General Code, provides:

"If notice of the appointment of the former executor or administrator was not given as prescribed in this chapter, the new administrator shall be liable to the actions of creditors whose claims were not presented to the former executor or administrator, as if no executor or administrator had been previously appointed."

Section 10509-155, General Code, provides:

"Notice of the appointment of the new administrator shall be given by the probate judge in the manner prescribed with respect to an original administrator."

Section 10509-156, General Code, provides:

"No provision in law relating to limitation of actions against a new administrator shall revive a claim barred under this or any other act, during the continuance in office of the original executor or administrator, or of a former administratorde bonis non."

Section 10509-157, General Code, provides:

"When assets come to the hands of such new administrator, after any of the periods above limited for the commencement of suits against him, he shall account for them, and be liable to suits and proceedings on account thereof, as is provided in this chapter with respect to an original administrator."

The language, "no provision in law relating to limitation of actions against a new administrator," in Section 10509-156, General Code, is vague. What other provisions of law relate to limitation of actions against a new administrator? Would the section bar suits filed pursuant to Section 10509-157? As I construe Section 10509-156, in the light of Section 10509-154, it was the intent of the Legislature to prevent the revival of a claim previously barred by lapse of time against a prior administrator, provided notice of the appointment of the prior administrator had been published. As indicated above, plaintiff's claim as a creditor of the estate was not barred at the time the administrator de bonis non was appointed, since he was appointed within four months after plaintiff's appointment as administratrix. Section 10509-156, therefore, does not, in terms, bar the filing of plaintiff's claim within four months after the appointment of the administrator de bonis non. The defense of the statute of limitations is regarded as meritorious, but courts will avoid giving to the limiting statute any construction other than that which the words demand.Chisnell v. Ozier Co., 140 Ohio St. 355, 44 N.E.2d 464.

It is, therefore, concluded that the demurrer to the petition was improperly sustained, and that the judgment should be reversed and the cause remanded to the Court of Common Pleas for further proceedings.