In re Estate of Gogan

[70] OPINION By PHILLIPS, J.: The question presented for our consideration and determination by appellant’s appeal on questions of law, is the interpretation of §10509-134 GC, and the action of the Probate Court in refusing to allow appellant to file his petition for authority to present an alleged claim with the Administrator more than four months after the latter’s appointment. Sec. 10509-134 GC as amended, effective Aug. 22, 1941, as it applies to presentation of claims presented more than four months after appointment of administrator, provides as follows: “A claimant who has failed to present his claim to the executor or administrator within the time prescribed by law may file a petition in the probate court for authority to present his claim after the expiration of such time. Such petition forthwith shall be assigned for hearing, and at least five days before the date of the hearing, the claimant shall give written notice thereof to the executor or administrator and to such other parties, if any, as the court may designate. If upon hearing the court finds (a) that the claimant did not have actual notice of the decedent’s death or of the appointment of the executor or administrator in sufficient time to present his claim within the period prescribed by law, or (b) that the claimant’s failure to present his claim was due to the absence of the executor or administrator from his usual place of residence or business during a substantial part of such period or was due to any wrongful act or statement on the part of the executor or administrator or his attorney, or (c) that the claimant was subject to any legal disability during such period or any part thereof, then the court may authorize such claimant to present his claim to the executor or administrator after the expiration of such period; provided, however, that a claim which is not presented within nine months from the appointment of the executor or administrator shall be forever barred as to all parties, including [71] devisees, legatees and distributees, and no payment shall be made nor any action maintained thereon, except as otherwise provided in this chapter with reference to contingent claims. * * The evidence discloses that the administrator was appointed on July 21, 1950 and that later on August 17, 1950, he was appointed administrator with the will annexed and that appellant filed his petition for authority to present his alleged claim to the administrator on February 24, 1951 which petition was subsequently dismissed by the Probate Judge. Further, the evidence shows that between July 17, 1950 and January 23 1951, appellant was continuously held without bail and at all such times imprisoned in the Cuyahoga County jail under an indictment for murder in the first degree, of which crime he was acquitted by a jury on January 23, 1951 and thereafter discharged. Appellant claims that during the four month period allowed by §10509-112 GC, for presentation of his claim, he was under legal disability as defined in §10509-134 GC, and therefore was excused from presentation of his alleged claim during the four month period immediately subsequent to the appointment of the administrator. Examining §10509-134 GC, we note that sub-section (e) thereof pertains to the rights of claimants under any legal disability during the stated statutory period for filing claims. “Legal Disability” as used in the Probate Court Act is specifically defined in §10512-2 GC: “The term ‘legal disability’ as used in this act shall include the following: (a) persons under the age of twenty-one years; (b) persons of unsound mind; (c) persons in captivity; (d) persons under guardianship of the person and estate or either.” Sec. 10509-134 GC, and §10512-2 GC, must be read and construed in pari materia. See: In re estate of Gress, 40 Abs 172, 28 O. O. 168; Home Owners Loan Corporation v. Doolittle, 57 Oh Ap 329. Two members of this Court believe that a person confined in a county jail, as was appellant, is ‘a person in captivity’ as defined in §10512-2 GC, and therefore that appellant was under legal disability until January 23, 1951. See: In re Pontius, 6 Oh Ap 249, a habeas corpus proceeding in which the Court declared that: “Any restraint of one’s personal liberty is sufficient to constitute imprisonment and any restraint of a person by another against his will is imprisonment as contemplated by law.” While it is true that the permissive word ‘may’ rather than [72] the mandatory word ‘shall’ is used in §10509-134 GC designating the authority of the Probate Court to permit appellant to file his alleged claim with the administrator more than four months after his appointment, none the less, in view of the clear showing of legal disability on appellant’s part, we are constrained to hold in construing §10509-134 and §10512-2 GC, together, that the Probate Court abused its discretion in dismissing appellant’s petition for authority to file his alleged claim with the administrator. The judgment of the Probate Court is therefore reversed for the reasons stated herein. The cause is remanded for further proceedings according to law. Exceptions noted. Order see journal. THOMPSON, J, concurs. SKEEL, PJ, dissents.