DEVISES — DESCENTS.

[Franklin Circuit Court,

September Term, 1892.]

Shearer, Stewart and Shauck, JJ.

#### †JOHN M. WILSON. EX’R v. TRUMAN B. HALL ET AL.

' 1. If there are no Children, Husband who Declines under Will, takes only as if there were Children.

Where there are no children, and provisions are made in a will for a surviving husband, and he declines to take under the will, he is entitled to his dower in the lands of his wife, and such portion of her personal estate as he would be entitled to under secs 4176 and 5964 Rev. Stat. had his wife died intestate leaving children.

2. Disappointed Devisees to be Compensated out of Rejected Portions of the Will.

The portion of his wife’s estate, to which such surviving husband is entitled under the law, should in such case be allowed to him, in so far as the same is sufficient therefor and applicable thereto, out of the provision made for him in said will, and the balance, if any, applied to the compensation of disappointed legatees and devisees, if there are any.

3. Residue of Estate Descends as Intestate Property.

In the absence of a clause disposing of the same or of a general residuary clause in the will, the provision so made for the husband, or so much thereof as is not applied to the claim of the husband under the law, and to the compensation of the disappointed legatees or devisees, descends as intestate property.

4. Street Assessment not a Debt to be Paid out of Personalty.

The expenses for the improvement of a street under the provisions of the act of March 26, 1890, (87 O. L. 113), become a lien upon the real estate abutting on said street *590to the depth oí 250 feet, from the time the contract is entered into; and the owner of such real estate is not personally liable therefor; hence is not a debt to be paid by the executor out of the personal estate.

5. Inherited Property Divided by Mutuae Quit-Ceaims not Ancestrae.

Property which upon the death of an ancestor descends to his heirs as tenants in common, and which is divided among such heirs by quit-claim deeds from each to the others for an expressed valuable consideration, does not pass upon the death of one of such grantees as ancestral property.

6. A Wiee is Affected oney as to the Consort Refusing to take Under it.

Where a devise is made of lands to the husband of the testatrix for life, with .a direction to the executor to sell after the death of the husband, and distribute as follows: “1st, Should my sisters S. and C. or either of them survive myself and my husband, I give either or each of them surviving $500.00,” and the husband elects not to take under the will. Held:

a. Upon the death of S. prior to the death of the husband the legacy to her lapses.

b. Such election by the husband does not authorize the executor to sell the lands before the death of the husband.

Appeal from the Court of Common Pleas of Franklin county.

This is an action brought by the executor of Lucy C. Hall under the provisions of sec. 6202, Rev. Stat., to obtain the direction of the court in the execution of his trust.

While there are pleadings filed in this case besides the petition, no substantial issues are raised, and the facts in the case appear in the petition as follows:

December 10, 1890, Lucy C. Hall died testate, leaving the following will:

“I, Lucy C. Hall, of Clinton township, Franklin county, and state of Ohio, do make and publish this my last will and testament:

“Item I. _ It is my will that my just debts be first paid out of my estate, and that my executor, hereinafter named, cause a respectable and appropriate monument set or placed at my grave upon a good, solid foundation, costing one hundred ($100) dollars, within one year after my decease.

“Item II. It is my will that all my wearing apparel and jewelry be given at once to my sisters, but should neither of them survive me, then to be given to my nieces, named in item 5th, to be divided amicably between them.

“Item III. It is my will that my husband, Truman B. Hall, if he survive me, shall have sole control of my lands in Clinton township, Franklin county, state of Ohio, and receive the rents and profits thereof during his natural life, and shall also Have the use of my household goods during the same time.

“Item IV. I will and devise that after my decease my executor (John M. Wilson, named in item 8th) shall, as soon as practicable and judicious, cause to be sold on such terms of credit, or otherwise as he may think proper, either at public or private sale, after an advertisement of one insertion of each week for six consecutive weeks in one of the daily papers of the city, my house and lot, situate on the north side of Spruce street in the city of Columbus, county of Franklin, and state of Ohio, more particularly described as lot three (3) of Neil and Rodebaugh’s subdivision of lots 51 to 56, both lots inclusive, of Park Addition. See plat book No. 2, page 157, in the Recorder’s office of Franklin county. Ohio, deed to purchaser to execute, acknowledge and deliver in fee simple, and to distribute the rents acquired after my decease and the money realized from said sale less the expense or liens that may be attached to said real estate and the sale thereof as follows, to-wit: One-fourth of said proceeds to be paid at once'to Charles A. Weaver or his heirs, the remaining three-fourths to be divided equally between the heirs of Mary J. Pleukharp, now deceased, who was the sister of Charles A. Weaver and wife of Ezra Pleukharp, when they each arrive at the age of twenty-one years. I desire Walter C. Pleukharp, Claude W. Pleukharp and Irvine H. Pleukharp, respectively, to be paid their portions with the accumulated interest thereof. Should either of the said children of the above named Mary J. Pleukharp desire to have some money to educate himself, after he arrives at the age of seventeen years, it is my will that my executor shall advance one-fourth of the amount due said child, then, in such sums, and in such manner as he, said executor, may think judicious, in the education of said minor child.

“Item V. I will and devise that, after the death of both myself and my husband, that' my executor, John M. Wilson, named in item 8th, shall sell by private or public sale, or in any such manner, upon such terms of credit or otherwise as he may think proper, all my real estate lying and being within the township of Clinton, county of Franklin and state of Ohio, and deed to purchaser or purchasers to execute, acknowledge and deliver in> fee simple. And to distribute the money realized from said sale as follows, to-wit:

*591“ist. Should my sisters, Sylvia Coe, and Cynthia E. Spurgeon or either of them ;urvive myself, and my husband, I give either or each of them surviving five hundred $500.00) dollars.

“2nd. I give Irvin H. Pleukharp out of the proceeds of said sale one thousand [$1,000.00) dollars.

“3rd. I give out of the proceeds of said sale to Walter C. Pleukharp, Claude W. Pleukharp and Eugene L. Weaver, (son of Charles A. Weaver, now living in the state of California), each one hundred ($100.00) dollars.

“4th. The remainder of the proceeds -of the sale of said property I give to be divided :qually between John M. Wilson, Mary D. Wilson, Safford M. Coe, Irvine Coe, John Coe, Lucy F. Hendrixson, Martha A. Green, Delia K. Yates, Edith Simpson, Fanny Spurgeon, William Spurgeon, Thomas Spurgeon and Chester Spurgeon, share and share alike.

“Item VI. I will-to be given out of my personal effects, after the death of myself and my husband, to Irvin H. Pleukharp, my best bureau, my best bedstead, my best feather bed, one pair of my best pillows with two pairs of my best pillow cases, three of my best sheets, my best comforter, my best plaid woolen blankets, and two of-my best quilts. To Walter C. Pleukharp I give my large rocking chair, which was formerly his Grandfather Weaver’s; and to Claude W. Pleukharp I give my large family Bible. The remainder of my household goods I give to my nieces and nephews mentioned in the latter part of item 5th to be divided amicably between them.

“Item VIL If at the time of my decease I have not sufficient money or notes from which to realize to defray the necessary debts or expenses then to be paid, I authorize my executor named in item 8th, to sell off my lands east of the road upon which I now reside, upon the terms and conditions I have named in item 5th.

“Item VIII. I nominate, will and appoint John M. Wilson, of Clinton township, Franklin county, Ohio, executor of this, my last will and testament, hereby authorizing and empowering him to compromise, adjust, release and discharge in such manner as he may deem proper, the debts and claims due me.

“I desire no appraisement or sale of personal property to be made, and that the court of probate direct the omission of the same.”

This will was duly probated, and the plaintiff qualified as executor. Within the time provided by law, the widower, Truman B. Hall, appeared in the probate court and declined to accept the provisions of the will. After the execution of the will the testatrix sold 2 53-100 acres of her land in Clinton township, being part of the land described in item V., for $3,000, receiving of the purchase money $800, and taking notes and a mortgage for the balance, which notes and mortgage are in the hands of the executor. The land so sold was part of a tract belonging to Thomas Bull, the grandfather of the testatrix, and was devised to her and the other “heirs of the bodies” of the father and mother of testatrix. After the death of one of the devisees of Thomas Bull, intestate and without issue, the other devisees, including Lucy C. Hall, divided the real estate so devised among themselves by executing each to the others, quit-claim deeds, which contained an expressed consideration of $2,000. On November 5, 1890, a contract was made by the county commissioners of Franklin county for the improvement of a street along 14^ acres of the land in Clinton township, under the provisions of the act of March 26, 1890, 87 O. L. 113, and the assessment therefor is unpaid.

It is claimed that the testatrix sold the 2 53-100 acres above referred to, to obtain funds for the purpose of paying this assessment, and expected to apply the notes and mortgage given therefor to that purpose. The husband surviving is 74 years of age, and asks that dower be assigned him in all the real estate, and if the' executor has the power, now, to sell the Clinton township lands, that the court will order them sold. Sylvia Coe, mentioned in item V., died after the death of testatrix, and her representative claims that she became by the terms of the will, vested with a right to this legacy; that the election of the widower dates back to the probate of the will; and Sylvia Coe having died after that date, her estate is entitled to the legacy.

The personal estate of the testatrix amounts to $3,000 or $3,500 in moneys, notes and personal effects.

The real estate consists of the lands in Clinton township described in item III., less the 2 53-100 acres sold after the making of the will, amounting to 22 16-100 acres; the house and lot on Spruce street, described in item IV. of the will; and the undivided one-half of a house and lot in Los Angeles, Cal., not mentioned in the will.

The testatrix never had any children.

†

This judgment was affirmed by the supreme court, without report, 53 O. S. 679. Cited in Alexander v. Mendenhall, 1 Ohio Dec., 655, 658; criticised in Day v. Carter. 1 Ohio Dec., 293. 295.

STEWART, J.

Some discussion is indulged in in the briefs in regard to the provisions of’ sec. 6202 Rev. Stat., but we have no doubt that a proper case is made here for proceeding under that statute. The husband having declined to take under the provisions of the will, his rights in the estate are fixed by statute as “dower and' such share of the personal estate of the deceased consort as the * * * wid*592ower would be entitled to in case the deceased consort had died intestate leaving-children.” Sec. 5964 Rev. Stat. This does not refer merely to the personal property as to which the deceased consort died testate, but to all the personalty.

In this case the deceased died intestate as to all her personalty except the specific items mentioned in items II. and VI., and also as to the real estate in Los Angeles.

Under sec. 4176 Rev. Stat. the widower of an intestate leaving children, is entitled to “one-half of the first $400, and one-third of the remainder of the personal property subject to distribution.”

He cannot take all of the property, for by secs. 4163 and 4159 the course of descent of personalty is fixed subject to the rights of the widower under sec. 4176, and by sec. 5964, the descent, subject to such rights, is first to the children; there being no children irt this case to inherit, except for the provisions of sec. 5964, the estate would pass to and be vested in the widower, but in accordance with its provisions it passes, after taking out the portion given to the widower by the provision of sec. 4176, *to*the “brothers and sisters of the intestate of the whole blood or their legal representatives.”

Sec. 4163 Rev. Stat., as amended March 18, 1890, 87 O. L. 66, provides “that any fund in the hands of any administrator, guardian, assignee, or other trustee, which has arisen from the sale of real estate, which real estate came to such intestate by descent, devise or deed of gift from an ancestor, shall descend according to the course of descent prescribed by Rev. Stat., sec. 4158, for ancestral real estate;” and it is claimed that the notes and mortgages taken for the real estate sold after the making of the will, pass under this provision of this statute. A comparison of the amended statute with its provisions prior to the amendment shows conclusively that these notes and mortgage fall within its provisions, provided the land sold was ancestral. But that it was not under the facts in this case is settled by the case of Brower v. Hunt, 18 O. S. 312. The surviving husband having declined to take under the will of his wife, must relincpiish to he.r estate whatever was given to him by the will, as it is clear thut by this will this provision was not in addition to his dower and distributive share. Rev. Stat., sec. 5963.

That the old and well established doctrine of compensation applies to a widow who elects to withdraw her right of dower from the operation of a will and forego the benefit of a provision made for her in the will in lieu thereof, was settled in this state in the case of Jennings v. Jennings, 21 O. S. 56, and has never since, so far as we know, been questioned. From reason and authority then it is necessary in this case to apply the rule laid down in Gretton v. Howard, 1 Swanst, 441, note, that: “In the event of an election against the instrument, courts of equity assume jurisdiction to sequester the benefit intended for the refractory donee, in order to secure compensation to those whom his election disappoints.”

The surviving husband having been given a life estate in all the Clinton township lands, his claim for dower therein, which gives him an estate for life in one-third thereof, sec. 4188 Rev. Stat., cannot disappoint any of the legatees or devisees. It is different, however, with the Spruce street property, described in item IV. of the will, and the value of his dower therein must be ascertained and allowed him, not out of this property, but by way of compensation out of his life estate in the Clinton township lands, if sufficient therefor. In that case, the Spruce street property can be sold free of his dower, and distribution made according to the terms of the will. We do not find it necessary to express any opinion as to his rights in the Los Angeles property. As the testatrix died intestate as to almost all of her personalty, it is only necessary to say that the surviving husband is entitled to his distributive share under sec. 4176 Rev. Stat., of the personalt” in the hands of the executor, including the notes and mortgage; and if any of his life estate in the Clinton township lands remains after assigning dower as hereinbefore provided, that should be applied, by way of compensation, to satisfying the disappointed legatees under ítems II. and VI. of the will. If, *593after so compensating such legatees, there remains any portion of the life estate devised to the husband in the Clinton township lands, it will descend as intestate realty, there being no disposition made of the same by the will, and no residuary clause in the will.

The claim made by the representative of Sylvia Coe’s estate to-the legacy, given her by item V. of the will, is untenable. She is only entitled to this legacy by virtue of the provisions of the will, and the election of the surviving husband affects only himself and those who are disappointed by his refusal to take under the will. Sylvia Coe’s legacy could not be and is not affected by such election. It was to be paid out of the proceeds of lands to be sold after the husband’s death, and therefore after all his claims therein had ended, and was not payable unless she survived the testatrix and her husband. It is clear, from the reading of this clause of the will, that this legacy was intended for Sylvia Coe, and hence the provision as to survivorship. It was not hers absolutely, but conditioned upon her surviving. She did survive the testatrix, but did not thereby acquire any vested right in this legacy, and upon her death before the surviving husband, her legacy lapsed, there being no other disposition of it.

It is also clear to us that it was the wish of the testatrix that her Clinton township lands should not be sold until after her husband’s death. The power of sale given to the executor, which is here invoked, was given by the will, and the time fixed therefor was after the husband’s death. That the testatrix had given her husband a life estate in the lands may have been a reason why she fixed the time she did for the sal.e, but with her reasons we have nothing to do. If her will is certain and her intention clear, it only remains for the court to carry out that intention. To order a sale of the lands now, under provisions of item V. of the will, would be to violate the plain reading of the will. It is claimed also that the executor should pay the assessment levied on the lands in Clinton township to pay the cost of improving the road upon which such lands abut, and especially that he should pay the same from the amount realized by him from the notes and mortgage in his hands representing part of the purchase price of a portion of these lands; it being- alleged that the testatrix had sold this land for the purpose of raising funds to pay this assessment. Whatever may have been the object of the testatrix in selling this land; the proceeds were not applied by her to the payment of the assessment, and these notes in the hands of the executor are assets to be applied by him to the payment of the debts of the estate and to be distributed according to law. This improvement was made under the act of March 26, 1890, 87 O. L. 113, and by sec. 10 of that act the assessment for the improvement is made “a lien upon the property abutting upon the street or roads improved,” to the depth of 250 feet, “from the time the contract is entered into for the making of said improvement, and shall remain a lien until fully paid, havIing precedence óf all other liens except taxes.” The contract for this improve- . ment was entered into prior to the death of testatrix, and it was clear from the provisions of this statute that the assessment is a lien upon the real estate, and not a debt of the testatrix to be paid by the executor out of the personal estate.

It follows then, that—

1.The surviving husband is entitled to dcwer in all the lands of the testatrix in this county, which by way of compensation to disappointed beneficiaries should all be assigned to him in the Clinton township lands.

2.He is also entitled to one-half of the first $400.00, and one-third of the balance of the personalty, including the notes and mortgage left by testatrix.

3.If any of his life estate in the Clinton township lands remains after assigning all his dower therein, it should be applied to compensating disappointed legatees in items II. and VI.

4.Any portion thereof hen remaining descends as intestate realty.

5.The legacy of Sylvia "oe has lapsed, and her representative is not entitled to the same.

*594John H. Sharp, for plaintiff.

W. F. Hunter, for Truman B. Hall.

G. F. Castle, for Irvin H. Coe, John T. Coe, Lucy F. Hendrixson, and Irvin H. Coe, Adm’r of Sylvia B. Coe.

Geo. B. Okey, for Charles A. Weaver.

Huggins & Sowers, for Safford M. Coe.

O. W. Aldrich, for John M. and Mary D. Wilson.

6. The expenses of improving North High street are a lien upon the real, estate abutting thereon to the depth of 25b feet, and are' not payable out of the-personalty.

7. The executor is not entitled to an order to sell the Clinton township^ lands—

And a decree may be entered accordingly.