82 N.E.2d 768 | Ohio Ct. App. | 1948
Three notices of appeal were filed in the Probate Court of Hamilton county, covering appeals on questions of law from orders of such Probate Court, all orders being entered in that court on the 15th of August 1947.
The notices of appeal were filed by creditors of the estate.
The first notice of appeal is addressed to an order of the Probate Court overruling the appellants' exceptions to the amended final account of Edward A. Walter, administrator.
The second notice of appeal is addressed to an order of the Probate Court overruling appellants' exceptions to the inventory of the administrator.
The third notice of appeal is addressed to an order of the Probate Court approving and settling the amended and corrected final account of such administrator and discharging such administrator and his surety.
One contention of the appellants may be disposed of at once. It is claimed that the issues considered in the orders under attack were previously adjudicated *157 by orders of the court involving the same parties. Be that as it may, the court did grant a hearing on the issues disposed of by the orders under consideration, and it must be presumed, in the absence of a showing to the contrary, that it heard evidence upon such issues after "good cause shown."
The authority of the court so to do is contained in Section 10506-40, General Code. No abuse of discretion appeared in the action of the court in granting the appellants leave to present issues, even though they were formerly considered by the court.
The controversy between the parties arises by reason of a contention on the part of the appellants that the administrator has continuously, from the very first, refused to consider himself liable on certain notes bearing his signature.
It is the contention of the appellants that such signatures of the administrator were placed upon the notes in the capacity of a comaker. It is the contention of the administrator that he was merely an accommodation maker.
If the administrator was a joint maker and joint obligor upon the notes, then he, in paying the obligations created by the notes, entirely out of the assets of his father's estate, of which he was the administrator, rendered himself liable for a contribution to the estate covering his proportion of such obligations, unless such status was qualified by special agreement.
The appellants, by exceptions to the inventory and final account, sought to obtain from the Probate Court a ruling that the administrator had depleted the assets of the estate by paying his share of the obligations created by the notes out of the estate. This was the issue considered by the court, whose final decision was adverse to the appellants.
The only evidence in the bill of exceptions upon this issue is that of the administrator, who was permitted *158 to testify that his signature was placed upon the notes merely as an accommodation maker and that the notes were, therefore, paid out of the estate assets.
It is the claim of appellants that the administrator was prevented from testifying because of the provisions of Section 11495, General Code. The appellee invokes the provisions of the same section, claiming the appellants, by calling the administrator for cross-examination, opened the door to a complete disclosure of the circumstances under which the notes were signed by the deceased and his son, the administrator.
Reference to the bill of exceptions shows that the administrator was called for cross-examination, but that the questions propounded to him involved merely the identification of his signature upon the notes.
The appellee contends that, such signatures having been placed upon the notes prior to the death of the decedent, all evidence in connection with the execution of the notes was admissible.
The administrator was not asked how or when he placed his signature upon the notes. He was merely asked to admit or deny his signature. He admitted it. Certainly, this cannot be considered as testimony of matters that occurred before the death of his decedent. This evidence referred only to an instant fact — the genuineness of the administrator's signature. The facts inIn re Estate of Alger,
In permitting the administrator to testify as to matters excluded by the provisions of Section 11495, General Code, the court committed error prejudicial to the appellants, and the orders from which appeals have been taken are set aside, and the cause remanded to the Probate Court for further proceedings in accordance with law.
Judgment accordingly.
MATTHEWS, P.J., ROSS and HILDEBRANT, JJ., concur. *159