252 N.E.2d 176 | Ohio Ct. App. | 1969
On March 15, 1967, David L. August, appellee herein, received bodily injuries in a traffic accident which resulted in the death of Harry P. George. His estate was administered beginning on March 23, 1967, by his sons, Earl P. George and Harold George, the appellants. On September 6, 1968, the Probate Court of Hancock County found that the administrators had fully and lawfully administered the estate, and had distributed the assets thereof in accordance with the law, as shown in their first, final and distributive account, and ordered the account approved and settled and the administrators discharged. No claim was ever filed by the appellee with the administrators to recover from the estate of decedent the damages which the appellee suffered by reason of his injuries.
Thereafter, desiring to bring his action for bodily injuries and to recover from insurance proceeds, which action by reason of the provisions of Section
They now appeal from the Probate Court's order and assign error in numerous particulars. These assignments *89 may be summarized that the reappointment of the administrators, over their objection, was contrary to law for the reasons that (1) they had been discharged, (2) they could not be reappointed without their consent, (3) they could not be reappointed without bond, (4) they had no estate funds available to them to employ counsel to defend the anticipated personal injury action, and (5), under the circumstances, the estate could not be reopened without proof by the injured appellee that the decedent was the owner of a liability insurance policy insuring the decedent's liability to appellee.
In Johnston v Schwenck,
The Probate Code makes no provision for the reappointment or requalification of a fiduciary once an estate has been closed and the fiduciary discharged. Nor does the Code contemplate the appointment or existence of administrators or executors except in those cases where there are assets to be administered. Thus, in a situation such as this, where the final and distributive account of the administrators of an estate has been approved and settled and they have been discharged from their trust pursuant to Section
Although the Supreme Court held in the Meinberg v. Glasercase, supra, that a liability policy was not an asset of a decedent's estate, this determination was limited to being "within the meaning of those words as used in Section
It is basic, however, that a person otherwise entitled to be an administrator or executor may waive or renounce such right and may not be required to serve. This "right" not to serve is recognized by statute. Sections
We do not know whether priority of right to serve is here involved, for the record is silent as to the existence, at the time appellee's motion was filed, of the surviving spouse of the decedent. In any event, the objection of Earl P. George and Harold George to being "requalified" and "reappointed" as administrators is tantamount to a waiver or renunciation of whatever right they may have had to serve, and in the face of same the Probate Court could not require them to do so.
We find for these reasons that the Probate Court committed error prejudicial to the appellants in ordering the estate reopened and the administrators requalified, and that said order was void. Taking this view we need not consider any other reasons assigned by the appellants for the invalidity of the order. Nor do we consider the application of the saving provisions of Section
Judgment accordingly.
COLE, P. J., and YOUNGER, J., concur. *92