RIGHTS IN THE PERSONALITY OF A DECEASED CONSORT.

#### Samuel Whyde v. John Lunn.*

Court of Appeals for Muskingum County.

Decided April 28, 1921.

*Distribution of Estate of Wife*— Husband *Takes under Section*10571, *When.*

1. Under the Ohio Statutes provision is made for a widow or widower out of the estate of the deceased consort, notwithstanding the estate has been otherwise disposed of by will.

2. A widower, electing not to take under ihe will of his wife who died testate but leaving no children or their legal representatives, is entitled to one-half of the'first four hundred dollars and one-tbird of the remainder of the personal property belonging to the estate o£ his said wife.

*O’Neal, Pugh, Bibble <& Bainter,*for plaintiff in error.

*Thad E. Thompson and Tannehill*<6 *Weber,*for defendant in error.

*

 Motion to certify record in this case overruled by the Supreme Court, October 4, 1921.

Houck, J.

It is agreed by tbe parties hereto that the following statement of facts shall be considered as applicable to this action:

> “The decedent, Etta S. Whyde, executed her last will and testament January 22, 1916, at which time she was unmarried, being then a widow.

> “She was married to Samuel Whyde, October 4, 1917, and died July 15, 1919, leaving no children nor their legal representatives, but leaving the said Samuel Whyde her widower, for whom no provision was made in said will, but by the will all of her estate was disposed of to others to the exclusion of her said husband.

> “Said will was duly probated.

> “Said Etta S. Whyde died owning both real and personal property. Said Samuel Whyde filed in probate court his election not to take under the will.

> ‘ ‘ Said Samuel Whyde, as administrtor with the will annexed of the estate of his said deceased wife, filed in the probate court *184his final account showing distribution of all the proceeds of the personal estate, lo-wit, $2,525.22, to himself as widower of said decedent.

> “Exceptions to said account were filed by John D. Lunn, trustee and beneficiary under the will, September 9, 1920, which exceptions were sustained by the probate court, the said court holding that said Samuel AVhyde, as widower, was only entitled to one-half of the first four hundred dollars and one-third of the remainder of the personal property for distribution.

> “Thereupon said Samuel Whyde appealed the cause to the common pleas court, which court entered the same judgment as the probate court.”

Question — Under these facts and the law applicable to same, is the plaintiff in error entitled, as he claims, to all of the personal estate of his deceased wife, on distribution, or is the judgment of the probate and common pleas courts right?

General Code 8592 (R. 8., 4176) reads:

> “When a person dies intestate and leaves no children or their legal representatives, the widow, or widower, as next of kin, will be entitled to all the personal property which is subject to distribution upon settlement of the estate. If the intestate leaves any children or their legal representatives, the widow or widower, will be entitled to one-half of the first four hundred dollars and to one-third of the remainder of the personal property subject to distribution. ’ ’

General Code 10571 (R. S. 5964) reads:

> “The election of the widow or widower to take under the will shall be entered upon the minutes of the court. If the widow or widower fails to make such election, she or he shall retain the dower, and such share of the personal estate of the deceased consort as she or he respectively would be entitled to by law in ease the deceased consort had died intestate, leaving children.”

General Code 10572 reads:

> “If the widow or wddower elects to take under the will, she or he shall be thereby barred of dower in such share of personalty, and shall take under the will alone; unless as provided

General Code 10572 reads:

> in Section 10569. But an election to take under the will does not bar the right to remain in the mansion of the deceased con*185sort, or the widow to receive one year’s allowance for the support of herself and children, as provided by law, unless the will expressly otherwise directs.”

General Code 10569 (R. S. 5963) reads:

> “No widow or widower shall be entitled both to dower and the provisions of the will in her or his favor, unless it plainly shows that such provision was intended to be in addition to dower and a distributive share of the estate. ’ ’

Counsel for the plaintiff in error rely wholly and entirely for a reversal of this judgment, upon the decision in the case of *Doyle*v. *Doyle,*50 O. S., page 330.

The material facts in the Doyle ease are in substance as follows:

William S. Doyle, having executed his last will and testament, died August 6th, 1890, leaving quite a large estate in real and personal property. By his will, after making a bequest of $1,000 to a daughter and a like sum to the children of his brother, he disposed of all the residue of his estate, real and personal, to his other children, making no provision for his wife, Louise E. Doyle, who survived him. The will was admitted to probate and the widow “refused to take under the will” and thus it was so recorded in the probate court.

It was claimed by some of the children that, as no provision was made for her in the will, the widow was entitled to no part of the personalty, on distribution. The widow claimed all of the personal estate under the provisions of General Code 8592 CR. S. 4176).

In a suit to construe said will, the common pleas court held that the widow was entitled to the same portion of his personalty that she would have been had her husband died intestate, namely: one-half of the first four hundred dollars, and one-third of the balance on distribution. On appeal, the circuit cotirt held otherwise, and ordered distribution under the provisions of the will. Error being prosecuted to the Supreme Court of Ohio, the judgment of the circuit court was reversed and that of the common pleas affirmed.

*186Learned counsel for plaintiff in error in their brief say:

> “The court will notice that in the Doyle case, the widow received one-half of the first four hundred dollars and one-third of the remainder, for the reason that the decedent in that case left children or their legal representatives, consequently, the last clause of Section 8592, General Code, properly applies to the facts therein. But, as above stated, in the case at bar, the-first clause of said section applies, for there were no children or their legal representatives.”

But it must be remembered that, in the case before us for review, the decedent died testate. True, she made no provision in her will for the plaintiff in error, but, as her surviving widower, he exercised his legal right and refused to accept the terms of the will, and thereby elected to take under the law.

It seems to us clear and about which there should be no disagreement, that it is the intention of our statutes to provide for a widow or widower, out of the estate of the deceased consort, even though the decedent provided otherwise by will.

Here the wife executes her will, subject to the law in force at the time it becomes effective. She had a legal right to cut her-children off, if she had any, if she saw fit to do so, but not so as to the husband, as his rights are fixed by statute.

The wife made no provision for the husband, and he had his option to abide by the will or take his portion of her estate as provided by law. He chose the latter by “electing not to take under the will,” under favor of General Code 10571, “and retained in the estate of his deceased wife * * # , and such share of the personal estate of the deceased consort as she or he respectively would be entitled to by law in case the deceased consort had died intestate, leaving children,” thus making his distributive share of the personal estate, as provided by the latter part of General Code 8592, to-wit, “one-half of the first four hundred dollars and one-third of the remainder of the personal property.”

While the wife made her will under the law, yet by the provisions of the same she could not, in law, abridge the right of her surviving husband to dower and a distributive share of her *187personal estate as provided by statute, unless he consented to same. His election to take under the will and receive nothing or to take his legal allowance was for him to determine; and having refused to accept the terms of the will, he, by reason thereof, took his statutory rights in his wife’s estate.

There being no children or their legal representatives, and had there been no will, then the estate in question,, would have passed to the surviving widower, Samuel Whyde, under the provisions of Section 8592, General Code. But Etta S. Whyde died testate, and her widower elected not to take under her will. Question: Did he then take the widower’s portion of said personal estate, under the provisions of Section 8592 or under favor of Section 10571 General Code? The unanimous answer of this court is, under Section 10571 General Code.

We are of the opinion that the ease of *Foster et al*v. *Clifford, Executor et al,*reported in 87 Ohio State, page 294, is decisive of of the case at bar in favor of the defendant in error.

In that case, like the one under review, Thomas Foster, the testator, died testate, leaving a widow, Mary Foster, but no child or children, never having had any children. The syllabus reads:

> “A testator gave to his wife all that part and interest in his estate, personal and mixed, which is secured to her, as his widow, by the laws of distribution of estates of the state of Ohio, in cases where wives survive husbands who die intestate, and gave, absolutely the remainder of his property, real, personal and mixed, to his brother. *Held:*

> “That, under this will, the widow took her dower interest in the real estate of the testator, situated in Ohio, one-half of the first four hundred dollars, and one-third of the remainder of the personal property subject to distribution, the use of the mansion house, under the provisions of Section 8607 General Code, and the year’s allowance provided for in Section 10656, and that the remainder of the estate, real, personal and mixed, went to the brother.”

It is our judgment that the ease of *Doyle*v. *Doyle, supra,*which is relied upon by counsel for plaintiff in error, is clearly in point, but is decisive of this case in favor of the defendant in error instead of the plaintiff in error.

*188*We*have given the issue here raised careful consideration and have examined all the authorities cited by counsel, and many others. In addition to the decisions already referred to and commented upon, as governing the question here presented, we call attention to the following as being also clearly in point as well as decisive of the ease now under consideration: *Seney, Admr.,*v. *Schroth, Admr.,*25 C.C. (N.S.), p. 185; *Hutchings v*. Davis, *Excr.,*68 Ohio State, p. 172; *Geiger, Excr.,*v. *Bitzer,*80 Ohio State, p. 65.

We find the order of distribution and judgment as entered in the probate court to be sound in law and in accordance with all statutory provisions governing same; and the judgment of affirmance of said order and judgment by the common pleas court, in this case, being sound in fact and law, the same is hereby affirmed.

Shields, J., and Patterson, J., concur.