469 N.E.2d 89 | Ohio Ct. App. | 1983
This is an appeal from a judgment of the Probate Division of the Lake County Court of Common Pleas in which the court denied plaintiffs-appellants' motion to vacate the order approving and settling the final account.
Plaintiffs-appellants, Frank and Karen Mathe, are tort claimants. Defendant-appellee, Alvern A. Fowler, is administratrix of the estate of her husband, Warren A. Fowler.
On February 23, 1981, appellee was appointed administratrix of her husband's estate. On March 6, 1981, appellants filed a tort claim purportedly against the estate. The body of the complaint named appellee as an individual defendant, but did not name the estate itself as a defendant.
Appellants filed an amended complaint naming the estate as a defendant in the body of the complaint. Answers were filed by appellee both times. The pertinent portions of the amended complaint read as follows:
"(2) Alvern Fowler is the Administratrix of the Estate of Warren Fowler pursuant to her appointment by the Lake County Probate Court on February 28 [sic], 1981.
"(3) A claim against the Estate of Warren Fowler has been timely commenced pursuant to law.
"(4) On September 15, 1980, Defendant's decedent Warren Fowler and Virginia Fasciano came upon the residence of Plaintiffs at 1292 E. 348th Street, Eastlake, Ohio and struck Plaintiff Karen Mathe."
On September 2, 1981, appellee, as fiduciary, filed an "Account of Receipts and Disbursements" in the probate court. The account did not mention appellants' tort claim. On September 10, 1981, notice of the hearing on the account was published in a local newspaper pursuant to R.C.
If allowed to testify, appellants would state that they had no knowledge of the hearing on the account and would have filed objections to the account if they had *274
known about the hearing. On December 8, 1981, appellants filed a motion, pursuant to R.C.
The assignment of error is as follows:
"The Probate Court erred in failing to vacate an order settling an account pursuant to R.C.
Appellants' assignment of error is well-taken.
R.C.
Appellants were parties to the proceeding because service of a summons and complaint on the administratrix of an estate is sufficient notice of a tort creditor's claim. Although R.C.
Appellee's contention that the initial complaint was insufficient to give notice because it named the administratrix as defendant in the caption, but not in the body of the complaint, is without merit. In Porter v. Fenner (1966),
At bar, an amended complaint was served naming appellee as defendant in her representative capacity before the filing of the account in the probate court. Thus, appellee clearly knew that the estate was the defendant in the pending tort action.
Good cause exists to vacate the settlement order because the probate court approved the final and distributive account without the knowledge of the existing tort claim. In Watts v. Watts
(1882),
The final requirements of R.C.
Appellants will testify that they had no actual knowledge of the hearing, but a final determination of that fact is for the probate court. Thus, the case is remanded.
Upon the issue of fraud, R.C.
The motion to vacate on the basis of fraud was properly denied because the record does not contain evidence of clear and convincing proof that appellee intentionally omitted the tort claim from the account to defraud appellants. In Pengelly v.Thomas (1949),
Cases vacating settlement orders on the basis of fraud usually involve an intentional misappropriation of funds by an administrator who fails to include a liquidated debt as part of the account. See In re Estate of Shive (1940),
The judgment is reversed and the cause is remanded in accordance with this opinion.
Judgment reversed and cause remanded.
COOK, P.J., and REILLY, J., concur.
REILLY, J., of the Tenth Appellate District, sitting by assignment in the Eleventh Appellate District.