#### Bermont, Admr., *v.*Gotshall. Bermont, Admr., *v.*Swetland. Bermont, Admr., *v.*Swetland.

*Executors and administrators*— Interest *computed on refunded legacies, how*— Sections *10609 and 10685, General*Code— *Statute of limitations*— Section *10816 et seq., General Code.*

(Nos. 18263, 18264 and 18265

Decided May 27, 1924.)

Error to the Court of Appeals of Knox county.

These three cases, involving the same questions, were argued, submitted, and axe decided together. They came into this court on error from the Court of Appeals of Knox county. So much of the facts necessary for the determination of the law questions involved herein may be stated as follows:

Phoebe Thompson died testate June 7, 1907, in Mt. ‘Vernon, Ohio, seized of real and personal property, leaving as her heirs at law and next of kin Mary T. Swetland, a daughter, and Harriet T. Miles, a grandchild, daughter of a deceased daughter. Mary T. Swetland, the daughter, who survived the testatrix, Phoebe Thompson, had two children, Anna’ Gotshall and Harriet Swetland. On July 25, 1912, Mary T. Swetland died intestate, leaving the two daughters, Anna and Harriet, her only children and heirs at law, and her husband, H. C. Swetland, surviving.

Under the provisions of the will of Phoebe Thompson, Mary T. Swetland was given a legacy of $9000 in United States bonds and all the household goods. Anna Gotshall and Harriet Swetland *426were given a specific legacy of 40 shares of stock in the First National Bank of Mt. Vernon, and the balance of the estate was divided between the three grandchildren, Harriet Miles, Harriet Swetland, and Anna Swetland G-otshall, share and share alike. ¡Specific legacies were given to her two sons-in-law, Charles E. Miles, father of Harriet Miles, and H. C. Swetland, amounting to $1000 each. The said H. C. Swetland was named as executor, and distributions were made upon two different occasions on the basis of one-third to Harriet Miles and two-thirds to Harriet Swetland and Anna G-otshall. The government bonds were turned over to Mary C. Swetland by her husband, the executor, on March '2, 1908, and it is argued that $7270 of the personal property shown in the inventory of Mary T. Swetland’s estate were proceeds represented by these bonds, of which sum there was distributed $3000 to Anna G-otshall, $3000 to Harriet Swetland, and $895 to the husband, H. O. Swetland. The interest of Mary T. Swetland in the real estate of Phoebe Thompson descended to the two daughters, subject to H. C. Swetland’s dower.

All the above matters took place prior to the time when the granddaughter, Harriet T. Miles, attained her majority. Upon so doing she brought an action to contest and set aside the will of Phoebe Thompson, which action resulted in her favor, and on May 5, 1919, the purported will of Phoebe Thompson was set aside. The result thereof was by operation of law to establish the right of Harriet T. Miles to one-half of the estate of her grandmother, Phoebe Thompson, and to invalidate the special bequests, leaving each of the two *427daughters of Mary T. Swetland, Anna Gotshall and Harriet Swetland, entitled to one-fourth interest in the whole of said estate as the heirs of their mother, who would have been entitled to one-half had she survived. The remaining one-half became the property of Harriet Miles, as above set forth.

Charles L. Bermont was appointed administrator *de bonis non*of the estate of Phoebe Thompson. Harriet Miles began a suit in partition in Knox county, and the administrator *de bonis non*of the estate of Phoebe Thompson, deceased, filed a cross-petition against Anna Gotshall and Harriet Swetland, asking the court to hold their interest in the land sought to be partitioned, they being nonresidents and having no other property within the jurisdiction, and for the judgment and direction of the court, and for an accounting of what they had already received from the estate in the form of the above-named legacies.

Issues were duly tendered by proper pleadings filed by the defendants, and upon hearing the court of common pleas found in favor of the claims of the administrator *de bonis non,*and ordered the set-off or retainer of the sums already received by the Swetlands, including the United States bonds, in so far as the sum amounted to over the proper distributive share coming to the Swetlands from the estate of Phoebe Thompson, deceased, she, in contemplation of law, having died intestate by reason of the setting aside of' her will.

The common pleas court allowed interest on the sums ordered to be refunded or retained from the share coming to the Swetlands in the partition *428suit, the interest to be computed from the date of the receipts of the money, and also ordered a return of one-half of the bank stock, together with the dividends received.

This decree was reviewed upon error in the Court of Appeals, which court modified the decree of the court of common pleas as to the charging of interest, and held that the date from which the interest was to be computed was from the time of the setting aside of the will, to wit, May 5, 1919, and not from the date when the money was received. On the question of the United States bonds, the Court of Appeals reversed the decree of the common pleas court, and rendered a judgment in favor of the Swetlands, on the ground that the statute of limitations (Sections 10876-10878, General Code) applied. In all other respects the judgment and decree of the common pleas court were affirmed. 'Said administrator *de bonis mom*now prosecutes error to this court to reverse the findings of the Court of Appeals.

*Mr. Robert L. Carr,*for plaintiff in error.

*Mr. C. H. Workman,*for defendants in error.

By the Court.

Two questions are presented for solution:

First, when does the interest begin to run on the refund of the part of legacies received under a will which was set aside; that is to say, does the interest begin to run on the date of the receiving of the money, or does it begin to run from the *429date when the will was set aside, or from the date when the demand for its return was made?

The second question is: Does the statute of limitations apply under the facts of this case ?

A majority of the court are not able to reach a common ground upon both of the propositions, yet a majority concur upon each of the propositions separately, and thus a judgment of affirmance, with a modification of the decree of the court below, is reached.

Upon the question as to when the interest begins to run on the refunded portion of the legacies, Marshall, C. J., Robinson, Jones, Day and Allen, J J., are of the opinion that the terms of Section 10609 and Section 10635, General Code, require the construction that interest should be computed from the date when the money was in fact received.

Upon the question whether the statute of limitations applies under the facts of this case by virtue of the provisions of Sections 10876, 10877, and 10878, General Code, Marshall, C. J., Jones, Matthias and Allen, JJ., are of the opinion that those sections of the General Code apply, and that the same constitute a limitation to a recovery upon that feature of the case.

The order of the court, Wanamaker, J., not participating, therefore is that the judgment of the Court of Appeals should be modified to the extent of permitting a recovery of the interest upon the refunded legacies, to be computed from the date of receiving the same, and that the decree of the common pleas court in that regard should have been affirmed by the Court of Appeals, and, *430with this modification, the decree and judgment of the Court of Appeals is in all other respects hereby affirmed.

*Judgment modified, and affirmed as modified.*

Marshall, C. J., Jones and Allen, JJ.; concur.

Bobinson and Day, JJ., concur in part.

Wanamaker, J., not participating.