# In re Estate of Butler

> Ohio Court of Appeals · July 20, 1939 · 32 Ohio Law. Abs. 1

URL: https://www.frixlaw.com/law-library/cases/6747220

## Case

- **Full name:** BUTLER, ESTATE OF, In Re
- **Court:** Ohio Court of Appeals
- **Decided:** July 20, 1939
- **Citations:** 32 Ohio Law. Abs. 1; 1939 Ohio App. LEXIS 491
- **Precedential status:** Published
- **Opinion:** Dissent by Guernsey
- **Judges:** Barnes, Guernsey, Hornbeck
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6747220

## Opinion text

GUERNSEY, J.,
dissenting:
Guernsey, J., dissents on the ground that the finding and order of the Probate Court entered on the hearing of the schedule of debts constituted a final adjudication of the validity of the claims of Frederick W. Freeman and Grover C. Brown against the estate of Henry V. Butler, deceased, binding upon all persons interested in the estate, including those who filed exceptions to the account of Lewis C. Freeman, administrator with the will annexed of said estate; and consequently that the question of the validity of credits claimed by said administrator in his account for the payment of such claims the allowance of which by the administrator was affirmed in said order is not the subject of adjudication on exceptions to said account. The only remedy available to persons interested in said estate desiring to contest the validity of such claims is a direct attack on said finding and order affirming the allowance of the claims by the administrator, on the ground of fraud or collusion in the procurement of said finding and order to which proceeding said claimants, respectively, the resigned administrator and the successor administrator would be necessary parties defendant. If on such direct attack such order is opened up and the action of the administrator in allowing such claims reversed, the claims will stand as rejected and the claimants will be remitted to their remedies of actions at law to establish and enforce their respective claims, or if the Probate Court modifies the action of the administrator in allowing the claims, if the part allowed is severable from the part disallowed the claim will stand allowed as to the part allowed and disallowed as to the balance, and as to the balance the claimant will be remitted to his action at law; and in case the part disallowed is not severable the claimant may treat such partial disallowance as a rejection of the entire claim and sue for the entire amount. Amrine v Gabriel, Court of Appeals, Third Appellate District, decided April 15, 1939, reported in 14 OO 447, issue of July 3, 1939. ( 29 Abs 161 ).
When the amounts of the respective claims against the estate have been finally determined in the manner hereinbefore mentiond, if the credits claimed by the administrator in his account for the payment thereof are in excess of such determined amounts the exceptions herein filed will lie to such excess.
In view of the evidence tending to prove fraud and collusion on the part of the administrator and claimants, referred to in the, majority opinion, X am not of the opinion that this court is warranted in reversing the judgment appealed from and entering final judgment in favor of the administrator on the ground that exceptions do not lie to the administrator’s account, but am of the opinion that this court should reverse the judgment of the Probate Court on this ground and remand the cause for a new trial and further proceedings according to law with instructions to the Probate Court to continue *24 the hearing oí the exceptions to the account to such a time as will give the exceptors an opportunity to make a direct attack on said finding and order of the Probate Court entered on the hearing of the schedule of debts, and if attack is successful to give the claimants opportunity to resort to their respective actions at law to establish the validity and amounts of their respective claims.
’ I am further of the opinion that the judgments to be entered by this court as set forth in the majority opinion in this case on the question of the rights of persons interested in the estate of a decedent for a finding and order of the Probate Court affirming the allowance of claims against the estate to except to the credits claimed by the administrator in his account for the payment of claims the allowance of which was affirmed in said order, is in direct conflict with the judgment of the Court of Appeals of the Third Appellate District in the case above mentioned, and that this cause should for that reason be certified to the Supreme Court for final determination pursuant to the provisions of Sec. 6, Art. IV of the Constitution.
Except as hereinbefore specially mentioned, I concur in the majority opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6747220. Public record. Not legal advice.