Collins v. Reiering

| Ohio Ct. App. | Dec 17, 1923

Cushing, J.

Mary Reiering died intestate, leaving a number of children. She had some property.

About 1917 Joseph B. Reiering and Mary D. Reiering, children of Mary Reiering, built a house at No. 607 Enright avenue, Price Hill. They did not pay for all the material that was used in its construction. In 1918 Joseph Reiering went to the army and was gone almost a year.

The Norwood Sash & Door Company perfected a lien on the property, as provided by statute. In September, 1917, Mary Reiering, the mother, paid the amount of Joseph B. Reiering’s. indebtedness to the Norwood 'Sash & Door Company. After her death, William R. Collins was appointed administrator of her estate, and he now seeks to recover the amount paid by Mary Reiering to the Nor-wood Sash & Door Company, and. a claim for board and lodging against Joseph B. Reiering, as a debt due the estate.

The petition states two causes of action: First, for the recovery of money paid by the mother of Joseph B. Reiering at the time he was sick and could not meet his obligations; and, second, a claim for money due for board and lodging. It recites that “on September 13, 1917, the said Mary Reiering, in her lifetime, advanced to defendant, Joseph B. Reiering, the sum of $311.54.”

Joseph B. Reiering for answer, after admitting the appointment of Collins as administrator, denies each and every allegation of the first and second causes of action.

The Court of Common Pleas., on motion of the defendant, instructed a verdict in his favor on the ground that the money that Mary Reiering paid to the Norwood Sash & Door Company was an advancement.

This action is prosecuted to reverse that judgment.

The only ground stated by the court in passing on the motion for an instructed verdict was that even though the money was advanced as claimed in the petition that money upon the death of Mary Reiering became what the law terms an advancement. This theory no doubt was adopted in view of the holding in the cases, of Tobias v. Richardson, 5 C. C. (N. S.), 74; Keever v. Hunter, 62 Ohio St., 616, and Martin v. Martin, Admr., 56 Ohio St., 333. These eases are distinguishable from the case at bar. In them there was no dispute as to the indebtedness. The question there arose out of a determination of the interest of the several parties in the estate, while in the case before us the answer denies that Joseph B. Beiering requested his mother to pay the lien of the Norwood Sash & Door Company; denies that she paid it, or that he agreed to repay her; and denies that he was indebted to the estate in any sum on account of such payment.

The answer to the second cause of action denies that Joseph B. Beiering lived at home; denies that he received either board or lodging; and denies that he ever promised to pay therefor, or that he was indebted to the estate in any sum whatsoever.

The pleadings present questions of fact for the determination of a jury. It should be observed that an advancement has been defined in Ohio, in the case of Moore v. Freeman, 50 Ohio St., 592, 594, as follows:

“An advancement is an irrevocable gift by a parent to a child, in anticipation of such child’s future share of the parent’s estate, and is to be taken into account upon distribution. Necessarily, therefore, the matter is governed by the statute of distribution.”

The word advanced, as used in the petition, could not be construed to mean advancement in its legal sense, as defined by our Supreme Court. The answer denies this as well as all the other allegations of the petition.

The court directed a verdict and dismissed the action on the ground that it did not have jurisdiction of the cause of action. In this the- court erred. It no doubt concluded that it was within the jurisdiction of the Probate Court to determine the question of what share Joseph B. Reiering should receive out of the estate. But, on the record, the Probate Court would not have jurisdiction to determine the question whether or not Joseph B. Reiering was indebted to the estate. That was a question of fact for a jury.

The action was properly commenced in the 'Court of Common Pleas and should have been determined on the issues made by the pleadings.

The judgment of the Court of Common Pleas, dismissing the petition, will be reversed, and the cause remanded for further proceedings according to law.

Judgment reversed, and cause remanded.

Buchwalter and Hamilton, JJ., concur.