Summary
In Keifer v. Kissell, 83 Ohio App. 133, 75 N.E.2d 692 (1947), the plaintiff estate of an individual paid the amount due on a note on which the individual was a surety for the debtor defendant.
Summary of this case from Schirm v. AuclairOpinion
No. 468
Decided November 1, 1947.
Executors and administrators — Claims against estate — "Unmatured" and "contingent" claims construed — Contingent claim need not be presented, when — Surety on promissory note — Action accrues against principal, when — Surety's executor required to pay balance on note — Must present claim against estate of deceased principal — Section 10509-216, General Code — Renewal of note an extension of time of payment — Not an extinguishment of original debt.
1. An unmatured claim is one where the liability is certain but the maturity or due date has not arrived; a contingent claim is one where the liability depends upon some indefinite or uncertain future event which may never happen, and liability may never arise.
2. The holder of a contingent claim is not required to present such claim under provisions of Section 10509-112 or Section 10509-134, General Code.
3. No action accrues to a surety on a promissory note against his principal until the surety can show that he has suffered a loss of payment.
4. Where the decedent signed a promissory note as surety, which was secured by mortgage on the real estate of the decedent, and where upon sale of such real estate the executor of the estate of the surety was required to pay the balance due on the note, the estate of the surety is required to present such claim to the administratrix of the estate of the deceased principal as a contingent claim under the provisions of Section 10509-216, General Code.
5. The renewing of a note from time to time does not operate to extinguish the original debt; it is simply an extension of time of payment and a change as to the evidence of debt.
APPEAL: Court of Appeals for Clark county.
Messrs. Keifer, Keifer, for appellee.
Mr. Abe Gardner, for appellant.
This is an appeal on questions of law from a judgment of the Common Pleas Court of Clark county, rendered in favor of the plaintiff, William W. Keifer, in an action in which the plaintiff, as executor under the will of Webb W. Witmeyer, deceased, sought to recover from Olive M. Kissell, administratrix of the estate of Floyd Maxwell Kissell, deceased, a sum of money which the estate of Witmeyer was required and did pay to the Lagonda National Bank of Springfield, Ohio, as the amount due on a note on which the Kissells and Witmeyer were co-signers, the Kissells being the principals, and Witmeyer a surety.
A jury being waived, the matter was tried to the court on an agreed statement of facts wherein it was stipulated: That the averments of facts in the petition are true; that the notes given in renewal of the indebtedness after February 5, 1944 (the date of death of Floyd M. Kissell), were signed only by Olive M. Kissell and Webb W. Witmeyer; that Olive M. Kissell was appointed administratrix of the estate of Floyd M. Kissell, deceased, on April 5, 1945; and that the plaintiff presented the first written proof of claim to the administratrix on April 11, 1946.
It appears that the original note was signed by Floyd M. Kissell, Olive M. Kissell, and Webb W. Witmeyer, and the indebtedness was secured by mortgage on real estate owned by Witmeyer. Payments were made on the note from time to time, and renewal notes were given.
The real estate mortgaged to secure the debt was sold in a land sale proceeding in the Probate Court of Clark county by the executor of the estate of Webb W. Witmeyer, and the executor was required and did pay to the bank the sum of $3,955.17, being the balance due on the note.
The payment to the bank was made on April 10, 1946. The executor presented proof of claim to the administratrix of the Kissell estate on April 11, 1946. The administratrix of the Kissell estate having been appointed on April 5, 1945, more than four months had expired before the claim was presented.
The defendant, appellant herein, contends that the court erred in rendering judgment in favor of the plaintiff on that state of facts. More specifically, the defendant contends that since the claim was not presented until after the expiration of four months after the date of the appointment of the administratrix, the claim is barred under the provisions of Section 10509-112, General Code, which in part provides:
"All claimants shall present their claims to the executor or administrator in writing, * * * whether due or not due, secured or unsecured, liquidated or unliquidated. All claims shall be presented within four months after the date of the appointment of the executor or administrator."
In support of the contention that the presentment of the claim within the four-month period is mandatory, the following cases are cited: Prudential Ins. Co. v. Joyce Bldg. Realty Co., 143 Ohio St. 564, 56 N.E.2d 168; Beach, Recr., v. Mizner, Exr., 131 Ohio St. 481, 3 N.E.2d 417; Akron Commercial Securities Co. v. Ritzman, Admx., 79 Ohio App. 80, 72 N.E.2d 489; Breen, Admx., v. Conn et al., Exrs., 64 Ohio App. 325, 28 N.E.2d 684; Hampton, Admr., v. Replogle, 47 Ohio App. 394, 191 N.E. 885; In re Estate of Christopher, 26 Ohio Law Abs., 422, 35 N.E.2d 454. We approve the principle of law for which these cases are authority. However, this principle of law has no application to the facts in the instant case.
The last sentence in Section 10509-112, General Code, is as follows:
"Claims which are contingent need not be presented except as otherwise provided in this chapter."
By an amendment to the Probate Code, effective August 22, 1941, provision was made for the presentment of a contingent claim in the enactment of Section 10509-216, General Code, which provides:
"If a claim is contingent at the time of the decedent's death and a cause of action subsequently accrues thereon, such claim must be presented to the executor or administrator, in the same manner as other claims, before the expiration of four months after the appointment of the executor or administrator or before the expiration of two months after the cause of action accrues, whichever is later, except as hereinafter provided. The executor or administrator shall allow or reject such claim in the same manner as other claims are allowed or rejected. If the claim, on being presented, is allowed, the executor or administrator shall proceed to pay such claim according to law. If the claim is rejected, the claimant shall commence an action thereon within two months after such rejection or be forever barred from maintaining an action thereon." (Italics for emphasis.)
The exception mentioned in the above quoted section is found in Section 10509-216 b, General Code, and has no application to the instant case. The plaintiff in this case properly proceeded under Section 10509-216, General Code. No cause of action accrued to the plaintiff until payment was made by the executor of decedent's estate. 38 Ohio Jurisprudence, 590, 592; Henderson-Achert Lithographic Co. v. John Shillito Co., 64 Ohio St. 236, 60 N.E. 295, 83 Am. St. Rep., 745; Poe v. Dixon, 60 Ohio St. 124, 54 N.E. 86, 71 Am. St. Rep., 713; Barger v. Gething, 39 Ohio Law Abs., 221, 223. The claim was presented the day after the cause of action accrued, and suit was instituted within two months after the claim was rejected.
Unquestionably the claim of plaintiff's decedent was a contingent claim. In Pierce v. Johnson, Exr., 136 Ohio St. 95, 23 N.E.2d 993, 125 A.L.R., 867, the court says on page 98:
"Authorities agree that a contingent claim is one, the liability upon which is dependent upon some uncertain future event which may or may not occur. It is this element of dependency upon an uncertainty which renders a claim contingent."
See, also, 21 American Jurisprudence, 582, 583; 11 Ruling Case Law, 205; 34 Corpus Juris Secundum, 171.
A contingent claim must not be confused with an unmatured claim. In the 1941 amendments to the Probate Code, unmatured and contingent claims were carefully distinguished. Section 10509-112, General Code, provides that all claimants shall present their claims "whether due or not due." This provision relates to matured and unmatured claims. An unmatured claim is one where the liability is certain but the maturity or due date has not arrived; whereas, a contingent claim is one where the liability depends upon some indefinite or uncertain future event which may never happen and liability may never arise. The claim of the plaintiff was a typical contingent claim which is controlled by Section 10509-216, General Code. The plaintiff was not required to proceed under Section 10509-134, General Code, which prescribes the procedure for presenting claims which are not presented within the time prescribed by law; neither was the plaintiff amenable to other provisions of that section.
It is urged by defendant that the renewal of the notes by Olive M. Kissell and Webb W. Witmeyer, after the death of Floyd M. Kissell, operated as an extinguishment of the debt of Floyd M. Kissell. With this contention we cannot agree. It is well established that the renewing of notes from time to time in no way extinguishes the original debt. It is simply an extension of the time of payment and a change as to the evidence of the debt. 31 Ohio Jurisprudence, 183; Chase v. Brundage, 58 Ohio St. 517, 51 N.E. 31; Leach v. Church, Admr., 15 Ohio St. 169; First Natl. Bank v. Patton Co., 13 C.C. (N.S.), 289, 22 C.D., 627; Minerva Savings Trust Co. v. Lyder, 9 Ohio Law Abs., 20, 21, 34 O.L.R., 73.
Finding no error in the record, the judgment is affirmed.
Judgment affirmed.
MILLER and HORNBECK, JJ., concur.