Statement of the Case.

discloses that a summons was issued out of that court to the sheriff of Cuyahoga county, Ohio, commanding him to summon James McClelland to return and file in the office of the probate court of Tuscarawas county an account of his guardianship on or before the 15th day of January, 1918. Said summons was returned endorsed to the effect that James McClelland could not be found in the county of Cuyahoga.

On the 8th day of February, 1918, an application for a writ of citation was filed in that court citing the sureties on both bonds to appear and render an account of the guardianship of James McClelland. Whereupon Lyman Hardman filed an answer containing the following defense:

"This defendant further says that the older of said wards, Bertha Clark, became of full age on the 5th day of May, 1899, and that the younger of said wards, George W. Clark, became of full age on the 3rd day of October, 1904; and that as the time for filing the said application for a writ of citation did not accrue within ten years next preceding the date of filing the same, the said application is therefore barred by the lapse of time and the Statute of Limitation in such case made and provided."

Upon a hearing it was ordered and adjudged by the probate court that the application to procure an accounting at such late date was barred by the lapse of time and the statute of limitations, and said application was dismissed at the cost of the relators. The cause was appealed to the court of common pleas of that county and the judgment of

Opinion, per ROBINSON, J.

the probate court affirmed. Error was prosecuted to the court of appeals, and the judgment of the court of common pleas and of the probate court was reversed. The cause is here upon allowance of motion to certify the record of the court of appeals.

Mr. W. V. Wright, for plaintiffs in error.

Messrs. Welty & Burt and Mr. Homer I. N. Stafford, for defendant in error.

ROBINSON, J. The question here for determination is, when, if at all, the right of a ward to require his guardian to file an account is barred by lapse of time.

By Section 10933, General Code, it is made the duty of the guardian "at the expiration of his trust, fully to account for and pay over to the proper person all of the estate of his ward in his hands."

In this case both of the wards became of age more than ten years prior to the commencement of proceedings of any kind to require the guardian to file an account.

By Section 10939, General Code, the machinery is provided for the enforcement of such account and settlement, and it is made the duty of the court, either upon his own initiative or on complaint, to require the same, and while the duty devolves upon the court, without complaint, to enforce the observance of his trust by the trustee, yet the ward is not left without a remedy in case the court is remiss in the administration of his office, for in the same section provision is made for a complaint

Opinion, per ROBINSON, J.

by which the processes of the court may be put in operation.

The legislature, having provided that upon the termination of the trust the guardian shall make final settlement, and having provided that the court shall upon its own motion enforce such settlement, and also having provided for a complaint in case both the guardian and the court were derelict in the performance of their respective duties, seems to have assumed that it had covered the field and that at least one of the three would initiate the proceeding which would result in a filing and settling of an account. It seems never to have contemplated any other situation than that at the initiative either of the guardian, the court, or the ward, the filing and settlement of the account would be secured at the termination of the trust. But with reference to the bondsmen of the guardian it enacted Section 11226, General Code: "An action on the official bond, or undertaking of an officer, assignee, trustee, executor, administrator, or guardian, or on a bond or undertaking given in pursuance of statute, shall be brought within ten years after the cause thereof accrued."

Since there is no reference here, nor elsewhere, to a limitation of time within which a trustee may be cited to file an account, and since this court in the case of Newton v. Hammond, 38 Ohio St., 430, has held that an action upon a guardian's bond does not accrue so as to start the running of the statute of limitations in that behalf until an account is filed and settled, and since a citation is not an action within the contemplation of the

Opinion, per ROBINSON, J.

statute, it seems entirely logical that no limitation of time within which a citation may issue to require a guardian to file an account was intended or contemplated; and while this court has held in the case of Philips v. State, ex rel. Harter et. al., 5 Ohio St., 122, that the limitation of ten years within which an action may be brought on an administrator's bond applies by analogy to a citation to an administrator to file an account, in view of its holding in Newton v. Hammond, supra, the analogy seems no longer to exist.

There is neither reason nor justice in a doctrine which would start the running of a limitation, by analogy, to a statute in favor of a trustee, who has an estate in his possession that he holds in trust for his ward, at an earlier period than it would start the running of the analogous statute in favor of the bondsman, who has violated no trust.

If, as held by this court in the case of Newton v. Hammond, supra, it requires the filing and settling of an account to start the running of the statute of limitations against the bondsman, and if, as declared by this court in the case of Philips v. State, ex rel., supra, a limitation by analogy exists in favor of the guardian, then, continuing the analogy, it ought to require the same state of facts and conditions to put in operation the limitation which exists only by analogy that it requires to put in operation the limitation which is provided by statute and upon which the analogy is based.

Opinion Per Curiam.

For these reasons we disapprove and decline to follow the holding of this court in the case of Philips v. State, ex rel., 5 Ohio St., 122, and hold that no limitation of time as to a citation of a guardian to file an account exists.

Judgment affirmed.

MATTHIAS, JOHNSON and WANAMAKER, JJ.,

concur.

THE FRED R. JONES Co. v. FATH ET AL., PARTNERS.

Building and construction contracts

Submission of disputes to engineer or architect — Decision of arbiter final, when — Fraud and bad faith not proven, when — Error to submit disagreement to jury, when.

(No. 16224-Decided January 27, 1920.)

ERROR to the Court of Appeals of Cuyahoga county.

Mr. James G. Stewart and Messrs. Mathews, Orgill & Maschke, for plaintiff in error.

Mr. Mark A. Copeland, for defendant in error.

BY THE COURT. Where parties to a building or construction contract agree to abide by the decision of an engineer or an architect having oversight or supervision of such work as to the amount, quality, acceptability and fitness of the several kinds of work which are to be done and paid for under such contract, the decision of the arbiter so