In re Estate of Colanero

OPINION

By THE COURT.

This is a law appeal from the Probate Court of Franklin County, Ohio, seeking to set aside and vacate the order confirming the final account and discharging the administrator upon the ground of fraud.

The record discloses that the first and final account was filed on October 15, 1942; that the same was published as required by law and the account was confirmed on November 19, 1942, the estate settled and the fiduciary discharged. On March 24, 1943, a petition was filed to reopen the account, alleging fraud. Upon the issues drawn trial was had and the petition was dismissed for the reason that the plaintiff did not prove he had no knowledge of the facts complained of within time to file exceptions to the account. The Court further found from the evidence that the petitioner was present in court when the account was prepared and filed; that he had knowledge of the acts complained of within time in which to file exceptions in accord with §10506-37 GC, and that the determination became final. The Court was of the opinion, and we think properly so, that inasmuch as the petitioner had knowledge of the alleged. fraudulent acts within time to file exceptions to the account, that he should have availed himself of the remedies which were available to him at the time; that since he had not done so, he is now precluded from maintaining the action upon the ground of fraud. Citing Crawford, Admr. v. Ziegler, et al., 84 Oh St 224. The appellant cites the case of In re Stafford, 106 Oh St 253, the facts of which we do not think are on all fours with the case at bar, the pertinent distinction being that there was nothing in the evidence in that case showing that the petitioner had knowledge of the alleged fraud in time to file exceptions to the account, as we have here. We are in accord with the legal principles set forth in the well considered opinion of Judge McClelland, and finding no error in the record the judgment is affirmed.

MILLER, PJ, HORNBECK and WISEMAN, JJ, concur.