#### James *W.*Dawson et al. *v.*Jane Dawson.

1. The bond of an executor or administrator may be sued in the Court of Common Pleas of the county in which the hond is given. The provision in section 185 of the act for the settlement of estates, which requires the bond to be sued in the court in which it is filed, had reference, when the act was passed, to the Court of Common Pleas, and the subsequent creation of the Probate Court, and the investing it with probate jurisdiction, did not transfer the authority to entertain such suits from the Court of Common Pleas to the Probate Court.

2. The Act of April 17, 1857, for the more speedy collection of claims of creditors, legatees, etc. (S. & C. 619), provides a cumulative and more summary remedy for the enforcement of demands against executors and administrators, but does not repeal sections 182, 183, and 184 of the act for the settlement of estates, authorizing suits on the bond of the executor or administrator.

3. A legatee or distributee can not maintain an action on the bond against the executor or administrator for payment of his legacy or distributive share under section 183 of the administration law, within the four years allowed by law for creditors to present their claims, without an oi’derof the Probate Court requiring such payment.

1. "Where the breaches alleged in the bond of an executor or administrator, consist of his failure to return an inventory, and of his wasting and converting the assets to his own use, the action for such breaches should bo brought for the benefit of the estate, and not for the benefit of a particular legatee or distributee.

Error to the District Court of Cuyahoga county.

The original action was commenced on the 9th day of *444October, 1872, in the Court of Common Pleas of Cuyahoga county, by Jane Dawson, against • James *~W.*Dawson and Martin D. Dawson and their sureties, on the bond given by said James and Martin to secure the performance of their duties as executors of Robert Dawson, deceased. The object of the suit was to recover a legacy of a thousand dollars, bequeathed by the testator to the plaintiff.

The bond bears date April 17, 1872, at which time it was approved by the Probate Court, and letters testamentary duly issued to the executors.

The petition avers that assets of the estate came into the hands of the executors, consisting of money, promissory notes, and other descriptions of personal property, the value of which is stated in the petition.

The petition then proceeds to assign breaches of the bond, and to ask judgment, as follows :

“ And this plaintiff' says that said James W. and Martin B. Dawson, as such executors, have not, nor has either of them, made any inventory of any of the above-mentioned property, or returned any of the same to the said Probate Court, nor have they administered upon the same, or any part thereof, but have taken and converted the same to their own use. And this plaintiff' says that there are no debts against said estate, and that the period has long elapsed since her said legacy has become due and payable, and she has demanded of them the same, but they have refused to pay her the ssüme, and pretend that there are no more assets of said estate applicable to her said legacy; but she says the same is untrue, and there is property and moneys of said estate in their hands sufficient to pay her legacy and all other legacies of said will, and by reason of the premises said bond has become forfeited, and she is entitled in law to have an action on said bond against the makers thereof, to receive the amount of said legacy, payable to her under said will, and that, by an order of the Probate Court, made on the 30th day of September, 1872, she was authorized by said court to bring a suit on said bond.

*445*“*"Whereupon the plaintiff prays judgment against the said defendants for the sum of $1,000, with interest from the 1st day of December, 1871.”

The defendants demurred to the petition on the grounds:

1. That the.court had no jurisdiction of the subject of the action.

2. That the petition did not state facts sufficient to constitute a cause of action.

In the Court of Common Pleas the demurrer was sustained, and the petition dismissed.

On error, the District Court reversed the judgment of the Court of Common Pleas, and the present proceeding in error is prosecuted to reverse the judgment of the District Court.

*Estep & Burke,*with whom was *R. P. & H. C. Ranney,*for plaintiffs in error:

The whole case is predicated npon the averment that the executors did not return a true inventory of the estate. This averment gives this court no jurisdiction. The Probate Court had exclusive jurisdiction up to the point of ordering a distribution. S. & C. 1212, sec. 2; 4 Ohio St. 508.

An action can not be maintained under section 178 of the act (S. & C. 602), to recover the amount due on a legacy, until there has been an order of the Probate Court ascertaining the amount due to the devisee.

This action was brought for the non-payment of the legacy, alleging a devastavit as the only ground of complaint. An order for the payment of such a demand is in all cases indispensable. Secs. 276-282, S. & C. 619-621.

*J. K. Hord,*with whom was *G. R. Critchfield,*for defendant in error:

I. At common law a legacy is payable at the end of a year from the death of the testator, for the reason that the executor is allowed one year in which to settle the estate. Roper on Legacies, 552, 862.

*446By analogy, in this state, a legacy should be payable at the end of a year fi om the date of the qualification of the executor, as that is the time allowed for creditors to prove and present their claims, and after that time he is expressly authorized to proceed to pay the debts against the estate. S. & C. 584, sec. 97; *Greer et al.*v. *The State,*2 Ohio St. 574. At the expiration of eighteen months a creditor may commence suit on the executor’s bond if his debt is not paid, though the estate be unsettled. *Greer*v. *The State,*2 Ohio St. 574. If this be so, why should a legatee be compelled to wait ?

Before the passage of the act of 1834, for the settlement of estates, the remedy upon an executor’s bond was governed entirely by the rules of the common law, which required that, before the bond could be put in suit, a devastavit must be first established by a suit against the administrator. *Stewart*v. *Treasurer,*4 Ohio, 98; *Treasurer v. Kent,*5 Ohio, 240.

But this rule was changed by the act of 1834, which authorized a suit 'to be brought directly upon the official bond in the first instance. 1 Curwen, 310.

The act of 1840, which repealed the act of 1834, makes the same provision. So, since 1834, it has not been necessary to establish a devastavit by judgment before bringing suit on the bond.

II. This action was evidently intended to be brought under section 184 of the act of 1840. S. & C. 602. Although this suit was brought under section 184, the petition also makes a case under section 183. It states a good cause of action under either section. It is very doubtful whether the provisions of section 185 refer at all to suits under section 183. It would be a reasonable and fair construction to hold that the words “such suit,” in section 185, referred only to the suit mentioned in section 184. *The State*v. *Cutting,*2 Ohio St. 7. If the case is considered as brought under section 183, all the difficulties surrounding it disappear at once.

Sections 183, 184, and 185 of the act of 1840, have not *447been, repealed. But so much of section 185 as is italicized in Swan & Critchfield’s compilation of the statutes, has become obsolete by the repeal of the act of February 23, 1816, to which that portion of section 185 clearly referred. S. & C. 1132.

Instead of that part of the section so rendered obsolete, the legislature have substituted section 566 of the code of civil procedure, which prescribes the *mode*of procedure to be followed in enforcing any of the rights of action given by sections 182, 183, and 184 of the act of 1840. S. & C. 1123, sec. 566.

Although the code does not confer jurisdiction upon any court, yet all of its provisions with reference to proceedings in original actions refer only to the Court of Common Pleas. None of its provisions refer to the Probate Court. S. & C. 1214, sec. 14.

This section of the code, together with its other provisions, show very clearly that it was the intention of the legislature that all actions against executors and administrators upon their official bonds should be prosecuted in the Court of Common Pleas. "Will it be seriously claimed that this intention so plainly expressed shall be defeated by the obsolete provision of section 185 ?

If a suit under sections 182,183, and 184 of the act of-1840 is a proceeding for the settlement of an estate, then section 604 of the code excludes actions from the operation of sections 566 and-603 of the code. But this suit was certainly not brought for any such purpose as the settlement of an estate. It was brought in pursuance of the plain and direct provisions of section 566 of the code. And the Common Pleas had jurisdiction. *McLaughlin*v. *McLaughlin,*4 Ohio St. 508.

The provisions of the act of 1840 do not in any way affect the rights and remedies provided by prior legislation. Its provisions are only cumulative.

At the time the Probate Court was organized, the Court of Common Pleas had jurisdiction of both probate and *448common-law actions, and that jurisdiction was not transferred to the Probate Court by the creation of that court.

White, J.

The first question in the case we shall notice is, whether the Court of Common Pleas had jurisdiction to entertain a suit on the bond of the executors. The bond was taken by and filed in the Probate Court; and the question arises under the provision in section 185 of the act for the settlement of estates, which requires the bond to be sued in the court in which it is filed. 1 8. & C. 602. The provision in question, when the act was passed, had reference to the Court of Common Pleas, which was, at that time, invested with both probate and common-law jurisdiction. The subsequent creation of the Probate Court, and the investing it with probate jurisdiction, did not transfer the authority to entertain suits on the bonds of executors and administrators from the Court of Common Pleas to the Probate Court. Before the adoption of the code, such suits were required to be prosecuted according to the course of the common law, and after the adoption of the code by the civil action of the code. Code, sec. 566. The jurisdiction of the Probate Court did not include such actions. *McLaughlin*v. McLaughlin, 4 Ohio St. 508.

2. The next question is as to the effect of the act of April 17, 1857, for the more speedy collection of claims of creditors, legatees, etc. 1 S. & C. 619.

For the plaintiff in error it is contended that the remedy provided by that act is exclusive of all others. We think otherwise. The object of the act was to provide a cumulative and more summary remedy for the enforcement of demands against executors and *administrators;*but it was not intended to repeal sections 182,188, and 184 of the act for the settlement of estates, which authorize suits on the bonds of the executor or administrator.

3. The third question is, whether the petition shows a cause of action on the bond for the payment of the plaintiff’s legacy within the time allowed by law for creditors *449to present their claims, without an order of the Probate Court requiring such payment.

The present suit was brought within eighteen months from the granting of administration.

Section 183 of the administration law, on which the present action is founded, and sections 182 and 184, were brought under consideration in *Cutting*v. *The*State, 2 Ohio St. 1, and in *Greer*v. *The*State, Ib. 575, and the effect of these decisions is to deny the right of the plaintiff to maintain the action.

Section 182 provides a remedy for the creditor when he is *entitled by law*to the payment of his debt; and section 183 provides a like remedy for the legatee when he is *entitled*to the payment of his legacy, and for the widow and other distributee to recover his or her distributive share. The right to resort to the remedy provided by these sections is not dependent upon the leave of the court, but the plaintiff must' have a right to a sum determinate and certain, and the recovery is for his sole benefit. The suit authorized by the 184th section can only be resorted to by leave of the court, and must be for a breach of the bond in some other particular than is provided for in the two preceding sections. The recovery in such case is for the benefit of all interested in the estate.

Legatees and distributees must be paid out of the surplus assets not required for the payment of debts. "Without an order of the court requiring such payment, neither of them, as of right, is entitled to demand his legacy or distributive share within the four years allowed by law for creditors to present their claims.

True, it is averred in the petition that there are no debts, and it is said the demurrer admits the truth of the averment. The demurrer only admits such averments as are well pleaded. In this action the executors can not be required to try that issue. The executors are not presumed to know, nor to have the means of knowing, the extent to which there may be creditors, until the time has *450elapsed within which, their claims must be presented. If the issue were tried, and it should be determined that there were no creditors, such determination would afford no protection to the executors against claims that might subsequently be presented.

But it does not follow from this that executors and administrators can, at their will, postpone the payment of legatees and distributees until the claims of creditors are barred.

The assets constitute a trust fund, first, for creditors, and secondly, for the legatees and distributees. Over the administration of this trust by the executor or administrator, the authority of the Probate Court is ample to see that the fund is faithfully applied for the benefit of those to whom it belongs. To this end, where payment is required of a legacy or distributive share, before the time has elapsed allowed for creditors to present their claims, the court is expressly authorized to require the executor or administrator to be indemnified by a refunding bond against the consequences of such payment. Administration Law, sec. 118 (S. & C. 588).

4. It is further to be observed, that the breaches, of the bond declared on in this case, consist of the failure of the executors to return an inventory of certain assets, and of wasting and converting them to their own use.

The action for such breaches should be brought for the benefit of the estate, and not for the benefit of a particular legatee or distributee.

The judgment of the District Court is reversed, and that ■of the Court of Common Pleas affirmed.

McIlvaine, C. J., Welch, Rex, and Gilmore, JJ., concurred.