SMITH

Proceeding by Mary A. Jewell, surviving spouse of Thomas J. Jewell, deceased, against Thomas R. Chiles, administrator of the estate of Thomas J. Jewell, deceased, and others, to purchase the homestead at appraisement.

Proceeding dismissed.J. F. Emans, of Lima, for plaintiff. Light & Siferd, of Lima, for defendants.
SMITH, Judge.

This cause came on to be heard on the petition of Mary A. Jewell as the surviving spouse of Thomas J. Jewell, deceased, to purchase the homestead at the appraisement by virtue of 10509-89, G.C., and the answer of George Jewell, George Deitch, Lucy Musselman, Stella Baker, John Deitch and Gertrude Runyan.

All of the answering defendants allege the death of the surviving spouse before completion of the action. The petition carries the waiver of notice and entry of appearance by Thomas R. Chiles as Administrator of the estate of Thomas J. Jewell, and the precipe for citation or summons directs summons to issue only to Gertrude Runyan, although eight other persons are named as parties defendant. At the time of hearing on the petition and answers of the above named defendants who voluntarily entered their appearances by such answers, no precipe had been filed for citation or summons on the defendants and none has been filed to this date.

Service on the defendants being incomplete the matter is really not at issue but both the plaintiff's attorney and the attorneys for the answering defendants are submitting the issues raised by the answers for determination and have filed their briefs.

Defendants seek the dismissal of the petition on the grounds of abatement of the right of action by the surviving spouse upon her death. They point out that no substitution of party plaintiff has been attempted and that service was not complete on the death of the plaintiff. There is no issue of fact, since the death of the plaintiff before service was complete is acknowledged.

The issue raised is whether the right to purchase the homestead at the appraisement is personal to such spouse and dies with her or survives to her heirs at law, devisees, or personal representatives.

The question seems not to have been adjudicated and reported in Ohio. Sec. 10509-89, G.C., by its language seems to adequately provide the answer. The section is unambiguous. It provides that only the surviving spouse may begin such an action; that on hearing unless for cause shown, the finding shall be in favor of the surviving spouse; that upon such finding the court shall order conveyance to such spouse; that the executor, administrator or commissioner shall deliver a deed to such spouse. Had the legislature intended the right to purchase to survive the spouse it would appear by direct statement or inference in the statutes. There is nothing in the language to even infer that such was intended. Impossibility of compliance with the terms of the statute when the spouse dies before completion of the action is so obvious that comment is scarcely required. Certainly no finding can be made in her favor after her death. No deed can be ordered conveying title to real estate to a deceased person. No delivery of such deed can be made to the person entitled thereto under the statute and the law grants no authority to convey to other than such spouse.

When the surviving spouse of a decedent filed a petition to purchase real estate under Section 10509-89, G.C., and dies before the action is completed or conveyance made, such right of action abates and the estate of the first decedent will be administered as if no petition to purchase by the surviving spouse had been filed.

It will not be necessary to consider other defenses made by the defendants.