#### In re Estate of Russell: Squire, Supt. of Banks, Appellant, *v.*The National City Bank of Cleveland, Successor Trustee, Appellee.

(Decided August 26, 1938.)

*Mr. Herbert 8. Duffy,*attorney general, *Mr. Hugh A. McNamee, Mr. C. B. Berne*and *Mr. L. W. Frazier,*for appellant.

*Messrs. Thompson, Hiñe <& Flory, Mr. E. P. Stoher*and *Mr. Clayton G. Molly,*for appellee.

Carter, J.

This cause originated in the Probate Court of Lake county wherein exceptions were filed by The National City Bank of Cleveland, successor trustee, under the will of Emily L. M. Russell, deceased, to the final account and first partial account of the Guardian Trust Company, executor of said estate. The exceptions were sustained by the Probate Court, appeal prosecuted to the Common Pleas Court wherein the exceptions were by that court sustained and appeal is prosecuted to this court on questions of law.

*386The operative facts are substantially as follows: The Guardian Trust Company of Cleveland, Ohio, was appointed executor of the will of Emily L. M. Russell by the Probate Court of Lake county, Ohio, on October 29, 1930. On February 27, 1933, the Guardian Trust Company restricted payment of its deposits to one per cent thereof, which restriction was continued until June 15, 1933, when I. J. Fulton, then Superintendent of Banks of the state of Ohio, took charge of said company for the purpose of liquidation. While the trust company was operating on a restricted basis and prior to the date when the Superintendent of Banks took charge for the purpose of liquidation, the Guardian Trust Company filed with the Probate Court of Lake county a first partial account bearing date of May 19, 1933. In this account it claimed credit for disbursements as follows:

> “Principal Account

> “Oct. 28,1931, Guardian Trust Co., fee to apply ----- $1000.00

> “Mar. 30, 1932, Guardian Trust Co., fee to apply ----- 1000.00

> “June 29, 1932, Guardian Trust Co., fee to apply..... 300.00

> “July 30, 1932, Guardian Trust Co., fee to apply ----- 200.00

> “Nov. 21, 1932, Guardian Trust Co., fees in full

> “Six percent on $1000.00 60.00

> “Four percent on 4000.00 “Two percent on 138,553.99 160.00 2771.08

> 2991.08

> “Less fees taken to apply - 2500.00

> $491.08

> *387“Income Account

> “Mar. 11, 1932 ------ $23.40

> “June 13, 1932 ------ 5.85

> “Sept. 12, 1932 ------ 6.94

> “Dec. 12, 1932 ------ 4.22

> “Total fee ----- $3031.49”

As above indicated, before tbe first partial account was filed the Guardian Trust Company bad suspended payment of its obligations at wbicb time there were funds of the Bussell estate on deposit in this bank in tbe amount of $12,745.36, of wbicb only one per cent could be withdrawn. This partial account was approved by tbe Probate Court of Lake county on July 3, 1933, there having been no exceptions filed to this first partial account and according to tbe opinion of tbe Probate Court, wbicb is attached to appellee’s brief, tbe Probate Court bad no knowledge at tbe time of tbe approval of this first partial account that payment bad been restricted by tbe bank to one per cent. On January 15, 1934, the Superintendent of Banks filed on behalf of tbe Guardian Trust Company, as executor, a final account, which indicated that as of June 15, 1933, when tbe Superintendent of Banks took charge for liquidation, tbe Guardian Trust Company was indebted to tbe Bussell estate for funds deposited by the executor in tbe amount of $12,987.26, and a certificate of claim issued to Tbe National City Bank of Cleveland, successor trustee, for that amount. To tbe final account tbe successor trustee, Tbe National City Bank of Cleveland, filed exceptions not only to tbe final account but directed as well to tbe first partial account and moved tbe Probate Court that tbe partial account be opened for tbe correction of mistakes and errors therein.

Both lower courts held that tbe partial account should be reopened, vacated the approval thereof and *388sustained the exceptions and held that the executor should be charged with $3031.49 taken by it as compensation and ordered the executor to pay interest thereon in the amount of $218.78; that the compensation claimed and allowed by the executor should not be paid to it until all of the impounded deposits and all the interest thereon should be paid to the successor trustee.

Were the lower courts in error in so holding? First, as to the propriety of the opening of the executor’s first partial account upon exceptions being filed to its final account, as hereinbefore indicated no exceptions were filed to this first partial account. Therefore its settlement by the Probate Court was not of an adversary character but *ex parte*only. Section 10506-40, General Code, subsection C thereof provides :

> “Upon any settlement of an account all former accounts may be so far opened as to correct a mistake or error therein, on condition, however, that a matter in dispute that has been previously determined by the court shall not be brought in question by either of the parties without leave of court upon good cause first shown.”

This provision of the code apparently permits reopening of an account which has been settled in the absence of an adversary proceeding.

“As to a partial account, in the absence of an adjudication upon exceptions by the Probate Court, the Probate Court has authority to examine it in any future settlement, the same as if no order of settlement had been made.

“A mistake or error appears to include anything, and the Probate Court can reverse himself, except where his former ruling was reviewed or it was appealed from.” Deibel’s Ohio Probate Law, 1936 edition, page 725, Section 721.

To this effect see *In re Estate of Steltenpohl,*53 *389Ohio App., 541, 5 N. E. (2d), 954, wherein the court held:

“An order of the Probate Court reopening the final account of an executor on the application of a creditor for fraud and manifest error is maintainable either under the old law, Section 10834, General Code, or under Section 10506-40, General Code, and related sections of the Probate Code.”

In the case of *In re Trusteeship of Conover,*26 Ohio Law Abs., 184, the court held under the provisions of Section 11033, General Code, which was the forerunner of the present statute:

> “* * * Section 11033, General Code, which permits the court to open up all former accounts to correct a mistake, or error, was passed by the Legislature to meet just such a situation which is presented in the case at bar. The prior accounts were formerly approved by the court, without exceptions being filed thereto, and inasmuch as the court has never had a hearing upon the matter, the exceptors in filing exceptions to the second and final account can now open up all prior accounts for the purpose of having the court determine matters with reference to the investment of trust funds.”

To the same effect see *In re Guardianship of Lodge,*32 N. P. (N. S.), 40. In this case exceptors sought to reopen partial accounts of a guardian for the purpose of objecting to certain credits claimed by the guardian. These credits represented investment of funds. The claim of the exceptors was that the investments were improper guardianship investments. There was no question but that the figures stated in the account were correct. The court was asked to go behind the arithmetical computation and to hold that the credits claimed were improper as a matter of law. To the contention on behalf of the guardian that the credits complained of did not constitute errors and mistakes sufficient to justify reopening of the former accounts the Probate Court, replying thereto, stated that no *390such, limitation upon the power to reopen could he implied from the *code;*that the legal propriety of credits claimed by an accounting fiduciary was much more important than merely the arithmetic of his computation and reached the following conclusion: 1. Filing of partial account by guardian of estate of an incompetent person is an *ex parte*proceeding which becomes adversary only upon the filing of exceptions. 2. Exceptions filed to a subsequent account will reach all former accounts which were *ex parte*and not made adversary by the filing of exceptions thereto. 3. The language of Section 10506-40, General Code, must be construed to include not merely clerical errors and mistakes contained in former accounts, but matters of substance as well, such as the question of the lawfulness of an investment shown in such previous accounts.

In the case of *In re Trusteeship of Gouden,*9 Ohio App., 207, a trustee’s account previously settled *ex parte*was reopened for the purpose of examining the propriety of certain investments for which the trustee had claimed credit in the account. In the case of *In re Estate of Brown,*22 O. L. R., 450, the reopening of an account was permitted for the purpose of questioning the reasonableness of the charges of the administrator and his attorneys. In *Lambright*v. *Lam-bright,*74 Ohio St., 198, 78 N. E., 265, a partial account was reopened to rectify an omission wherein the administrator had neglected to charge himself with an indebtedness which he owed to the estate. In the case of *Watts*v. *Watts,*38 Ohio St., 480, which has been considered the law of this state for many, many years, the court held:

> “Upon every settlement of an account by an executor or administrator, all his former accounts may be so far opened as to correct any mistake or error therein, except as to matters in dispute between two parties which had been previously heard and deter*391mined by the court, which shall not again be brought in question without leave of the court. This includes the power to correct all errors or mistakes of the court, as well as of the executor or administrator, found in former settlements, whether as to items embraced in or omitted from such former accounts.”

In the case of *Marks, Gdn.,*v. *Marks,*58 Ohio App., 266, 16 N. E. (2d), 509, decided by the Court of Appeals of this district, the court held:

> “In a proceeding to settle a guardianship account the court may open up former accounts, even though they have been adjudicated before by a Probate Court, in order to correct any errors or mistakes therein, particularly where a party with adverse interests in the settlement of those accounts was insane at the time and had no actual notice of the proceedings.”

It appears to this court that the intent of the Legislature as evidenced by Section 10506-40, General Code, is that a fiduciary shall remain subject to attack on his accounts until he has finally accounted for his trust. Certainly if the executor had no right to these fees until after allowance by the court they were erroneously or mistakenly taken. We think that the statute in question covers a situation as here presented and that there was an error or mistake in this regard subject to correction by the Probate Court, or mistakes at least existed in the credits claimed and paid as compensation by the Guardian Trust Company prior to the allowance by the Probate Court. This compensation was wrongly taken by the fiduciary and erroneously allowed by the probate judge, apparently without knowledge of the situation at the time of the allowance.

Webster defines “mistake” as follows: “To take away wrongly or improperly; to err in opinion or judgment; to be guilty of a wrong conception; misunderstanding or misapprehension; to commit an error.”

*392“Error” is defined as follows: “Mistake in the proceeding of a court of record in matters of law or fact; misapprehension, perversion, mistake, blunder.”

We believe that the facts before us disclose that there was mistake or error and possibly both in connection with the appropriation of the fees in question by the executor before allowance, and the allowance of same by the Probate Court without knowledge of the conditions at the time; that the court was under misapprehension of the true facts when the partial account was approved. We think the lower courts were not in error in ordering the opening of the first partial account upon filing of exceptions by the successor trustee to the final account. The Probate Court in its discretion allowed the executor compensation in the amount of $3031.49 being the amount claimed. This allowance rested in the sound discretion of the court and no error is prosecuted by the estate to this allowance. However, the lower courts deferred payment of these commissions until the executor had paid the estate an amount which together with the commissions would equal the amount on deposit, at which time the allowance would become effective and ordered the guardian to repay the fees deducted with interest thereon. If these fees were wrongly taken prior to allowance, and we hold such to be the case, as nothing was due the guardian at that time, then and in that event the executor had the use of this money which belonged to the estate and the estate would be entitled to interest thereon. To this effect see *Wheelwright*v. *Rhoades,*35 N. Y. Sup. Ct., 57,11 Abbott’s New Cases, 382; *In re Herrick,*12 N. Y. Supp., 105; *Estate of Myers,*67 Howard’s Practice Cases (N. Y.), 170; *Matter of Peyser,*5 Demarest’s Surrogate Reports (N. Y.), 244; *U. S. Trust Co.*v. *Bixby,*2 Demarest’s Surrogate Reports (N. Y.), 494; *Lacey*v. *Davis,*4 Redfield’s Surrogate Reports (N. Y.), 402; *Freeman*v. *Freeman,*4 Redfield’s Surrogate Reports (N. Y.), *393211; *Whitney*v. *Phoenix,*4 Redfield’s Surrogate Reports (N. Y.), 180, -wherein these courts held in substance that interest is chargeable to a personal representative on sums appropriated by him in payment of his commission in advance of their judicial allowance from the date of appropriation to the date of allowance. 24 Corpus Juris, 975, Section 2397, under the subject, “Necessity for Judicial Allowance,” states:

> “Personal representatives have no right to appropriate assets of the estate for the payment of their commissions until an allowance thereof by the court.”

In the case of *Overturf*v. *Gerlach,*62 Ohio St., 127, 56 N. E., 653, 78 Am. St. Rep., 704, the court says:

> “Until allowed by the Probate Court, the compensation and commissions of an administrator or executor to which he may be entitled in the settlement of an estate, cannot be attached or, by any similar process, appropriated to the payment of his claim by a creditor of such executor or administrator.”

Section 10509'-192, General Code, provides:

> *“* * **executors and administrators may be allowed commissions upon the amount of personal estate collected and accounted for by them, and of the proceeds of real estate sold by order of the court, or under direction of the will, which must be received in full compensation for all their ordinary services as follows: For the first thousand dollars at the fate of six per cent; all above that sum, and not exceeding five thousand dollars, at the rate of four per cent, and all above five thousand dollars at the rate of two per cent.”

It will be observed that this section provides that the executors and administrators may be allowed compensation, and until such allowance is made certainly the administrator or executor would not be entitled to fees. There is a certain degree of discretion lodged in the court as to the amount to be allowed depending on circumstances. If so, under this statute we believe the Probate Court in its discretion under the circum*394stances conld defer compensation as was done by the Probate Court in the case at bar. The lower courts were not in error in charging the executor bank interest on the compensation deducted by the executor prior to allowance. It appears to this court as a matter of equity and justice that the assets of the estate should not be further depleted by allowance of commission to the executor while at the same time the executor owed a large amount to the estate which may never be repaid by the bank.

Summarizing our view we are of the opinion that the court did not err in the opening of the first partial account and sustaining exceptions thereto; neither did it err in charging interest on commissions taken prior to the allowance; and that it was not in error and not guilty of abuse of discretion in postponing the payment of these commissions until funds on deposit in the bank had been duly accounted for. Judgment of the lower court affirmed.

*Judgment affirmed.*

Nicbtols, P. J., and Bennett, J., concur.