Western Reserve chronicle. [volume] (Warren, Ohio) 1855-1921, 1857-06-17

Nh. VAN Worries,
Speaker of the House of Representatives.
THOMAS ii. FORD,
President of the Senate.
No 161 AN ACT
To provide for the speedy collection Of Claims
of Creditors Legatees, and Distributes Of Exeeu-
tors, Administrators and Guardians, and to define
the jurisdiction of the Court OF Common Pleas ana
Probate Court, in certain cases.
SECTION I. Be It enacted By the GeRsrzl Assembly
Of ths STATE Of Ohio, That after thirty days from the
time Of the settlement Of the accounts Of executors
ministrators, guardians shall have been made, or
shall hereafter be made, by the Probate Court and
order OF distribution made thereon il such executor,
guardian, shall neglect refuse to
pay 70 any person. Interested in sail order OF dstrbu
tion as creditor, legatee widow, heir, or other dis
tributee, or otherwise, when demanded, his or her
share OF the estate property ordered be dstribu
ted by such Probate Court il shall be lawful for any
person Interested, aforesaid, file petition in the
Probate Court Of the county in WHICH the settlement
and order OF distribution is made against the executor
administrator, guardian making such settlement OF
his or her account aforesaid briefly setting forth in
the petition the amount and nature Of the claim Of the
party hling such petition, whereupOn the Probate
Judge shall forthwith issue citation against such
eeutOr, administrator guardian. setting forth the
filing OF the petition, the claimed by the petit
toner, and commanding such executor. administrator
or guardian, to appear before said Probate Court
the return day thereof to said petition, and
show cause, il any, why judgment should not be
dered and execution awarded against him or her for
the amount claimed by such petitioner and found to
be due such settlement and order Of distribution
which citation shall b. made returnahle not less than
twenty more than forty days from the date thereof
the return day be nameI in the citation which shall
be served and returned by the Sheriff other proper
officer, as in case Of summons and may issue to any
court in the State.
SEC. ?. But if such executor, administrator, or guar
dian shall reside out Of this State, the court being
ised Of that fact either before or after the return Of
the citation may order such non resdero be brought
hy inf ffrn
county in which the petition is filed, for six
tive weeks, before the time Fixed for the hearing Of said
cause or in case no newspaper he published in the
county, then to be published in some newspaper hav
ing general circulation N said county.
SEc. 3. On the return OF the citation served, or
the service of notice by publication, aforesaid the
cause sa be considered ready for hearing unless for
good cause shown by either party the shall be
continued for trial and Judgment N other tf
continuance and if no good cause be shown defence
Of the claim Of the plaintiff in such petition it shall be
lawful for such Probate Court render judgment in
FAVOR oil such plaintiff, against such executor admins
trdtOr guardian, for the found be due
the petitioner remaiIisg unpaid upon the settle
ment and order Of distribution, aforesaid with the
interests and costs OF suit, and 20 award execution
thereon as in other cases OF judgments. which exeeu
tOr shall be served and returned by the Sheriff
other proper officer in all respects executions are
issued from the Courts OF Common Pleas and all udg
inents rendered under this act shall have like liens
upon the real est te Of the parties, judgments
dered in the Common Pleas, and governed in all re-
spects by the same rules.
0
widow, other distributee under such order OF dis
trihutOn, shall be uncertain in dspute depending
upon the construction Of any device aeluest convey
ance, contract, advertisement. upon any o.her
question, the Probate Judge may hear and determine
all such questions necessary to ascertain and fix the
amount due the plaintiff in such petition and il
sAry hear and determine and settle the rights and
claims of all the parties interested aforesaid in such
order Ot distribution, and for that purpose the Probate
Court is hsreby authorized to cause all the heirs leg
atees or other distributes, parties in interest to be
made parties to said petition when the same is
sary, by amended supplemental petition, AID SER
vice of notice, is provided in the first and second
section of this act, and in such to render judg
ment and award execution against su-h executor, adj
ministrator, or guardian, in favor of the parties
spectively, for the amounts respectively found due
them. with the interest and costs, unless the court
should be OF opinion the costs should be paid
the estse ordered be distributed by the parties,
in which suc order shall be made respecting the
costs as shall seem equitable
SEc. ). In all cases under this act the Probate Court
before which any proceeding shall be pending, shall,
motion Of any Of the parties to sad proceeding,
cause the same to he reserved and sent to the Court Of
Common Pleas Of that county for trial. rnd judgment.
and execution, and in Of such reservation it shall
be the duty OF the Probate Judge forthwith to make
out transcript Of his proceedings in the cause fr
he has progressed in the same which together with
the petition and all other papers in the cause shall be
forthwith filed with the CLERK f the Court OF Common
Pleas of the county in which the cause IS commenced,
and said shall thereafter be carried final
Judgment and execution in sail Court Of Common
Peas, in all respects as though the same had been
originally commenced there, in other civil actions,
under the provisions OF the code Of civil procedure.
SEC. G. The Court Of Common Pleas shall have 4
original jurisdiction with the Probate Court
in all provided for in the first, second third and
fourth sections of this acl and any creditor egaee,
widow, other distriGutee, aforesaid, NAV bring
civil action in the Court Of Common Pleas Of the
per county. against such executor. administrator,
GUARDIAN for his her share Cf the estate upon such
settlement and order of distribution in the same
other civil actions, and proceed therein to final
judgment and execution, and be governed in al
spects upon ether civil actions under the cole of
civil procedure and to all persons interested in
said cause. heirs legatees, distributes, other
wise to be made parties TO any action aforesaid, ii it
shall beeIned necessary, in order to full and
plete settlement and adjustment Of the rights Of the
parties in the same manner other civil actions. nth
full power and authority settle and determine the
rights Of the parties, and render judgment aud award
execution thereon as in other cases.
SEc. :. The suretes of every such executor, admin
istrator guardian, shall moreover be liable upon
the official bond Of the executor, administrator. or
guardian, against whom any judgment may be render
ed under the provisions Of this act, either in the pro-
bate court court Of common pleas, and such sure
ties may be made parties to any such Judgment by pc
ttion action to be commenced and prosecuted in the
same manner as is provided in this act for the
msncement and prosecuting against executors,
administrators, guardians, to final judgment and
execution: Provided that in all in which service
Of process shall have been made upon such executor,
administrators, or guardians by publication proyi-
ded in section 3 the surety shall be permitted make
the same defenre as the executor, administrator
guardian could have made.
SEc :. Any executor. administrator. or guardian.
n
pleas, against the creditors, legatees Distributes,
other parties asking the direction Judgment Of
the court in any matter respecting the trust estate
property be administered and the rights Of the par
ties in interest, in the and fully as
was formerly entertained in the OF chancery.
SEC 9. Appeals shall be allowed from any final or
der, Judgment, decree OF the probate court to the
court Of common pleas, by any person agains. whom
any such order, Judgment, decree may be made,
who may be affected thereby, in the as is
provided for appeals from the probate court in the
entitled IAN act supplementary the act entitled an
act defining the jurisdiction and regulating the PTac-
tce OF probate courts, passed March A. 1853 and
amend said act" passed May ], ISL Appeals shall
also be allowed from any order or judgment Of the
court Of common pleas in like manner, the district
court, in proceeding under this act, by any person
against whom any such judgment order may be
dered, who may be affected thereby. to the same
tent and in the same manner is provided for appeals
IRON the common pleas in other cases. and bills OF
ceptons may be taken and allowed upon any decision
OF the probate court. court Of common pleas, dis
tret COURT in proceedings undeE this act in other
cases.
SEC. TO- This act shall apply to all cases Of estates
settled, in Of settlement as we'll as those
that may hereafter he settled ard 20 all causes or suits
now pending, respecting any matter provided for in
this act.
sEr H. Tha. the act entitled an act for the more
speedy collection Of debts, &c from executors, ai-
illustrators and guardians in certain cases, passed
March lS, 1851, be and the is hereby repeated
This act to take effect and be in force from and after
its Passage.
Speaker Of the House Of Representatives.
THOMAS II. FORD.