Smith v. Rhodes

| Ohio | Jun 16, 1903

The parties to this proceeding submitted their controversy to a juiry, and we assume that it was properly instructed by the court, inasmuch as the charge is not found in the printed record, nor is fault found with it in the brief for plaintiff in error.

Complaint is made that the trial court erred ini excluding evidence offered by the defendants below, and aliso erred in not permitting them to amend their answers during the progress of the trial.

The action was against George F.' Wilt, as principal, and the plaintiff in- error, as -his surety, on the administrator’s bond. The record shows that in attempting to make out their defense to the action brought by Rhodes, the defendants propounded to the administrator, Wilt, certain questions to elicit from the witness what, if any, consideration was paid to any one to induce the withdrawal of the exceptions which had been filed to his account as to expenses of ¡administration. The court permitted inquiries as to any amount which had been paid to plaintiff, Rhodes, but refused to admit testimony as to what, if anything, had been paid •to the excepting creditor, or >amiy one else. When the court sustained objections to such inquiries, no statement was made of what the expected proof would be, and 'as it occurred during the examination in chief, the ruling of the court is not reviewable in the absence of such statement. The rule requires a profert of the desired evidence, irt order that a reviewing court can determine whether or not the action of the trial court was prejudicial.

However, if we may glean from the current' of the examination what counsel for defendants desired, it would appear that such inquiries were properly shut out. The' judgment and orders of the probate court oouild not be thus impeached. In that court the party excepting to the administrator’s account had a right to with-daw the exceptions at any tome -before final submission, and that was done, and at a later date the account was approved -and settled. The administrator was well aware of what had been done, and it would seem that such withdrawal was entirely satisfactory to him, as it was his aocount that had been assailed. Several months intervened between the withdrawal of the exceptions and the final order.- Ho -other objections-were made. The surety on the bond w-as not a party to that proceeding, -and he had no right to be. He undertook to secure the performance -of -duties and obligations imposed on the administrator, and after the probate count had settled the account, to which no- objection existed, -we think the surety when sued upon the bond, -can not inquire into- -the motives or consideration which led to the withdrawal- of objections to- the account.

These remarks dispose of the 'other complaint, that the defendants were not allowed to- amend their answers. Counsel informed the trial court that they desired t-o- so amend the answers as to malee the excluded evidence competent; but no amended answer was tendered to the -court to- -act upon, for we find nolne in the record. Stating what was desired as an -amendment was not sufficient. However, if an amendment -had -beem tendered, containing the averments orally -disclosed! to- tire court, they wo-uld have been irrelevant, -and the tender of an immaterial issue as already stated.

It is -also claimed that the plaintiff ito error is not liable as surety on the -bond of the administrator for -the services rendered by Rhodes 'as attorney of such administrator, because they are n-ot a debt against the estate, -but against tire- administrator personally. Counsel for plaintiff in error state their position as follows:

"Can the surety on -atu eudimimstrato-r’s bond be held liable to the attorney of the administrator f-or services performed for the administrator as such, or is the failure of the- administrator to pay his attorney fee a -breach of the conditions of the bond ? We think not.”

To support their decisions on the question -as they put it, they cite Thomas Admx., v. Moore, 52 Ohio St., 200. That was am action brought before a magistrate -by Moo-re, as the surviving partner of the firm of MeKnight & Moore, against Elizabeth J. Thomas, as administratrix, to recover for legal services rendered her by that firm. The bill of particulars stated the services were performed at her request in various suits brought by 'and against her as such administratrix.

Judgment was obtained in tihe justice's court for the 'amount sued for, and the defendant gave notice of appeal, and filed a duly certified transcript, hut gave mo. appeal bond. In/ the court of common pleas the appeal was dismissed for want of an appeal bond, the court 'holding the appeal was not in the interest of the trust she represented. This court, in reviewing and affirming the order of dismissal, laid down this rule:

“Executors ¡and 'administrators are personally liable for the services of attorneys employed by them, but their contracts therefor do not bind the estate, although the services are rendered for the benefit of the estate, and are such as the executor or administrator may properly p’ay for, and receive credit for the expenditure in the settlement of his accounts.”

That case is used to show that the administrator or executor may not be allowed in ibis settlemielnlfc the full amount he has actually paid his attorneys, but only such amount as he shows was reasonable compensation for the services rendered. We think that case was correctly decided; but how does it relieve the surety in this ease? It is true that Wilt, the administrator, had paid but a small part of the attorney's fees, hut, 'as shown in the statement of this case, he -was required by .the probate court to file an account of the expenses of administration preparatory to the filing of his final account. This was done, 'and due notice by publication was given of the filing and pendency of the expense account, which was heard on a day to which its 'hearing had been adjourned. The itemized bill of Mr. Rhodes for 'attorney fees was before that court, andl we must assume that sufficient legal proof of the nature and value of the services rendered was made. The court approved the account /as to. the expenses of the administrator 'and his 'attorney as separately stated. Then came the final account and order of dist/ribuitiom, wherein the administrator was ordered to pay out of the assets in bis halnids, the amount found due the attorney, and from tire balance to. ¡Day his own expenses as allowed. The administrator paid Rhodes $50 and no more, and on refusal to pay as ordered by the probate court, .the action was brought' on 'his bond.

The pilótate count examined and approved the expense account in advance of its payments. That .count had all the light on the facts tout could have -been shed, on an examination of the claim for reimbursement, hiadi the administrator paid the attorney in advance, and taken credit for the same in his account. In this instance the attorney fees -were examined 'and approved in advance of payment', and, on final account, ordered paid from the assets of the estate. The subject had been fully 'adjudicated and ended. We think the probate court had authority to do this. Section 6188 of Revised Statutes, after fixing the ordinary compensation for executors and administrators, provides that “in all cases such further -allowance shall he made as the court shall consider just and reasonable for actual andi necessary expenses, and for any extraordinary services not required of an executor or administrator in the common course of -his duty.” * * *

Section 6090 provides as to the order of paying debts that, “First, the funeral expenses, those of last sickness, and the expenses of administration."

Section 524 gjives the probate court exclusive jurisdiction “to direct 'and control the oondiuet and to settle the accounts of executors and administrators, and to order the distribution of estates.”

The administrator, Wilt, ¡was 'ordered to make distribution, a part of -which order was that he pay to Rhodes, the attorney, the sum of $527.25 before thiaif time found by the court to be due him. This was 'an order which the court had power amd was authorized to make, 'and it was binding upon the .administrator and Ms sureties. A failure to comply with it was a breach of his bond for which the sureties are -liable.

The .bond involved provides, among other things, -that the administrator “shall pay 'any balance remaining in his hands upon the settlement of his accounts to such person as said court or the law shall ’direct.” The amount' so found in his hands and the order to pay the s'ame, in .the absence of fraud and collusion, are conclusive not only upon the 'administrator hut 'also upon his sureties, unless reversed -on error or vacated by appeal.

As supporting our views in this case, see Slagle v. Entrekin, 44 Ohio St., 637; Braiden v. Mercer, 44 Ohio St., 339; Foster, Admr., v. Wise, Admr., 46 Ohio St., 20.

Tlie judgment of the circuit court is free from error, and it is affirmed.

Judgment affirmed.