#### Crabbe, Admr., Appellee, *v.*Lingo et al., Appellees; White, Appellant.

*531(No. 154

Decided June 1, 1945.)

*Mr. H. II. Crabbe,*for appellee H. H. Crabbe, ancillary administrator.

*Mr. Franlc J. Murray,*for appellee George E. Lingo.

*Messrs. Tanner & Tanner,*for appellant.

Miller, J.

This is an appeal on questions of law and fact from a judgment of the Probate Court of Madison county, Ohio, ordering the sale of decedent’s real estate situated in such county.

The facts presented in evidence in the Probate Court are set forth in the agreed statement which by stipulation has been made part of the record. The only exception is that the relief granted on the admitted facts is contrary to law.

Briefly stated, the facts are as follows:

Mrs. Lucy L. Lingo died testate iii December, 3943, in the county of Los Angeles, California, and her will was probated in the Superior Court of that county. She being- seized of property in Ohio, an authenticated copy of her will was filed in the Probate Court of Madison county, which will is set forth in the agreed statement of facts. George E. Lingo, surviving spouse, was appointed domiciliary executor of her estate and H. H. Crabbe was appointed the ancillary administrator, both of whom are acting in their respective capacities.

*532Decedent in her will devised and bequeathed, among other things, real estate in Glendale, California, the sum of $500 to Marie M. Taylor, a niece by marriage, and to her husband, George E. Lingo, a life estate in the remainder with power of sale and recourse to principal for his care. Upon the death of the husband the remaining estate was to be sold and the net proceeds thereof paid to several persons, among them being the appellant, Bert E. White, who was devised the sum of $400 and “a sum equal to one-half of the net sale price of my farm in Ohio.” The certificate of assets and liabilities of decedent’s estate, filed by the ancillary administrator* shows the appraised value of her Ohio estate to be $18,880 in real estate and no personal property. Her California property was appraised at $21,549.80 and is composed of personal property of $3,049.80 and of real estate in the value of $18,500. The liabilities scheduled by the ancillary administrator show the Ohio indebtedness to be in the sum of $1,334.82, and the California indebtedness, including a mortgage on same real estate in California and a bequest to Mary M. Taylor of $500, to be in the sum of $10,036.49. The total liabilities amount to $11,371.31. The ancillary administrator filed a petition in the Probate Court of Madison county, Ohio, to sell 238.59 acres of land in Deercreek and Jefferson townships, Madison county, Ohio, to pay the indebtedness of the decedent. The surviving spouse, George E. Lingo, in the Probate Court of Madison county, Ohio, elected not to take the provisions made for him in the will, but to take under the laws of descent and distribution. The appellant elected to take the real estate described in the petition at its appraised value upon the condition that he be given credit for one-half of the value of the sale price thereof.

*533Iii seeking a reversal the appellant argues:

(1) That the Ohio real estate cannot be ordered sold in these proceedings because the debts of the estate are largely California debts and Ohio real estate should only be sold to pay debts due to Ohio creditors.

(2) That the election of the surviving spouse to take under the law instead of under the will accelerates the legacy of the appellant but not the other legacies.

(3) That the real estate should have been ordered transferred to the appellant because he elected to take the whole farm and offered to pay therefor one-half of the appraised value in cash and give a receipt for his legacy in payment of the other one-half of the appraised value.

(4) That he should be found to be the owner of one-half of the real estate in Madison county.

Considering first the status of the estate with respect to the relationship of debts to personal estate, we find the personal estate to be $3,049.80 and the debts to be $11,371.31. From this financial set up it was apparent to the executor in California that real estate had to be sold. Thereupon he caused an authenticated copy of the will to be recorded in Madison county, Ohio, procured the appointment of an ancillary administrator in that county, had all the California claims presented to such ancillary administrator, and, when the present proceedings were instituted, entered his appearance, filed an answer showing' the personal property to be insufficient to pay the debts and prayed the court to order the sale, of the Ohio property to pay such debts. The purpose of the ancillary administration is to clear the title to property and, of course, to protect and pay Ohio creditors and, if necessary, to create a fund to pay the debts and legacies of the deceased.

*534Section 10511-16, General Code, provides:

> “A domiciliary executor or administrator may file in the court by which the ancillary administrator was appointed information showing that it will be necessary to sell Ohio real estate of the decedent' to pay debts and legacies, and the court may thereupon authorize the ancillary administrator to sell such part or all of such real estate as may be necessary. The ancillary administrator shall proceed to sell such real estate in the manner provided by law.”

It is, therefore, our conclusion that under the provisions of that section the court was authorized to sell the land in Madison county.

The next question arises as to the effect upon the remaindermen of the election of George E. Lingo, the surviving spouse, not to take under the provisions made for him in the will, but to take under the laws of descent and distribution of Ohio. The effect of this election upon the estate is the same as though the life tenant had died the day he made the election. *Davidson*v. *Miners & Mechanics Savings & Trust Co., Exr.,*129 Ohio St., 418, 195 N. E., 845, 98 A. L. R., 1318. This, therefore, accelerated the legacies of all the remaindermen. The appellant claims the effect would be the acceleration of his legacy only, but with this view we cannot agree. Item II of the will reads as follows:

> “Upon the death of my husband I direct that all my remaining estate be sold and that the net proceeds therefrom be paid to the persons and in the proportions, as follows, to wit.”

Then follows a list of fourteen names after each of which is placed in figures an amount of money varying from $150 to $1,500. Among those included in the list is the name of the appellant, which appears as follows:

> *535“Bert E. White, nephew, $400 and a .sum equal to one-half of the net sale price of my farm in Ohio.”

This bequest to Bert E. White does not giye him a one-half interest in the farm in Ohio, but it gives him only $400 plus one-half of the net sale price of the farm. This bequest is similar to the thirteen others named, except that the amount of the bequest is not determined. Since all the legacies have been accelerated, how are they to be paid unless that is done which the Probate Court has done, namely, order the farm sold so that the debts and legacies might be paid as far as possible. The legacies and debts in Ohio and California total the approximate sum of $25,000, and the personal property which could be applied on this amounted to only $3,049.80, which shows the absolute necessity of selling the real estate in order that these debts and legacies might be satisfied. The appellant claims that the land in Ohio should be transferred to him because he has elected to take at the appraisement and offers to pay one-half in cash and to pay for the other half by giving a receipt for his legacy. It is true that the case of *Holt*v. *Lamb,*17 Ohio St., 374, holds that where land is directed to be sold and the proceeds divided, the beneficiaries may elect to take the land, but it does not hold that any one of fourteen such beneficiaries has such right individually, especially where gross inequities would result therefrom. An examination of the assets and liabilities of this estate shows that the total assets amount to some $40,000, and debts and legacies amount to approximately $25,-000. It will be seen that, after the allowance to the husband of his interest in this estate under the laws of descent and distribution, there may not be a sufficient balance to pay these bequests in full. Should *536such be tbe case, then it would become necessary that each one of these fourteen beneficiaries receive their proportionate share. That the appellant be allowed to take his bequest in full and thereby deny the other beneficiaries their full amount was not the intent of the will.

It is our conclusion that the ruling of the Probate Court in ordering the Ohio farm sold was correct and proper under the agreed statement of facts, and the judgment will be the same in this court.

*Judgment accordingly.*

Hornbeck, P. J., and Geiger, J., concur.