Opinion
No. 30452
Decided May 1, 1946.
Executors and administrators — Testatrix died seized of realty in sister state of residence and Ohio — Ancillary administration in Ohio — Probate Court may order Ohio realty sold to pay debts, when — Section 10511-16, General Code — Domiciliary executor may secure order directing ancillary administrator to sell realty, when — Surviving spouse elected not to take under will — Bequests to remaindermen accelerated, when — Direction to pay remainderman one-half of net sale price of realty — Bequest of personalty and not specific devise of realty.
1. Upon compliance by a domiciliary executor with the provisions of Section 10511-16, General Code, any Probate Court in this state, by which an ancillary administrator has been appointed in conformity with law, has jurisdiction to order such administrator to sell Ohio real property of which the deceased died seized to pay debts and legacies.
2. Where a resident of a sister state died testate seized of real property in the state of residence and also real property in Ohio, but owning insufficient personal property to pay debts, legacies and costs of administration, the domiciliary executor, after appointment of an ancillary administrator, upon proper-showing to the Probate Court by which the ancillary administrator was appointed, may secure an order authorizing and directing such administrator to sell the Ohio real property to pay debts and legacies.
3. Where a testatrix bequeathed and devised a life estate to her surviving spouse with power of sale and recourse to principal for his care, and directed that at his death the remaining estate be sold and the net proceeds paid in stated proportions to named persons, and such spouse elects not to take under the will, the bequests to the remaindermen are thereby accelerated and the administration of the estate as to them shall proceed as it would upon the death of the surviving spouse. ( Davidson v. Miners Mechanics Savings Trust Co., Exr., 129 Ohio St. 418, approved and followed.)
4. A provision in a will that there shall be paid to "Bert E. White, my nephew, $400 and a sum equal to one-half of the net sale price of my farm in Ohio" is a bequest of personal property, not a specific devise of an interest in real property.
APPEAL from the Court of Appeals of Madison county.
Lucy L. Lingo died testate on November. 12, 1943, in the county of Los Angeles, California. The surviving spouse, George E. Lingo, was named executor of her estate.
Testatrix died seized of real property in Madison county, Ohio. On March 10, 1944, an authenticated copy of her will was filed in the Probate Court of that county and H.H. Crabbe (appellee here) was appointed ancillary administrator of her estate.
The will insofar as pertinent here reads as follows:
"I"I devise to my niece by marriage, Marie M. Taylor, of Torrance, Calif., the sum of five hundred dollars and my real estate located at 1145 Cordova street, in Glendale, Calif.
"I give, devise and bequeath unto my husband George E. Lingo, a life estate in the remainder of my estate, with power of sale and recourse to principal for his care.
"II"Upon the death of my husband I direct that all of my remaining estate be sold and that the net proceeds therefrom be paid to the persons, and in the proportions, as follows, to wit: * * *
"Bert E. White, my nephew, $400, and a sum equal to one-half of the net sale price of my farm in Ohio.
"Helen Hunter, my niece, $200, and any remaining estate to my niece by marriage, Marie M. Taylor.
"Subject to said life estate to my husband I give, devise, and bequeath, my residuary estate unto the persons named in this paragraph, as in this paragraph is specifically provided."
A certificate of assets and liabilities of the Ohio estate was filed in the Probate Court of Madison county, Ohio, by H.H. Crabbe, ancillary administrator. The record discloses the following financial setup for the entire estate.
Assets OhioReal property Appraised value $18,880.00 Personal Property None ---------- Total (Ohio property) $18,880.00
CaliforniaReal Property Appraised value $18,500.00 Personal Property Appraised value 3,049.80 ---------- Total (California property) $21,549.80 Grand Total (All property) $40,429.80
LiabilitiesOhio $ 1,334.82 California 10,036.49 ---------- Total $11,371.31
The ancillary administrator instituted this action to sell the real estate described in the petition, located in Madison county, to pay debts and costs of administration. Thereafter the surviving spouse filed in the Probate Court of Madison county, Ohio, his election not to take under the will.
Bert E. White (appellant here) filed an election to take the property described in the petition at its appraised value. His election was in the following words and figures:
"I, Bert E. White, one of the parties defendant to this cause and a devisee under the will of said Lucy L. Lingo, deceased, elect to take the premises described in the petition at the appraised value thereof and ask the court to award said premises to me upon the payment of one-half the net sale price of said premises, the sum of $9,440."
Upon hearing, the Probate Court found in part that the election of Bert E. White was not well taken and should be overruled; that all the necessary parties were before the court; that the prayer of the petition should be granted; and that it was for the best interest of the estate to sell the propery at private sale.
Based upon those findings the court overruled the election of Bert E. White and ordered the ancillary administrator to sell the property at private sale for not less than its appraised value.
An appeal on questions of law and fact was perfected to the Court of Appeals.
The cause was tried in that court upon the original papers, transcript of the docket and journal entries, and an agreed statement of facts.
A decree was entered there substantially the same as that entered by the Probate Court.
The cause is here for review following the allowance of a motion to certify the record.
Mr. Frank J. Murray and Mr. H.H. Crabbe, for appellees.
Messrs. Tanner Tanner, for appellant.
The appellant in his brief raises five questions. We shall dispose of them in the order stated.
(1) "Can real estate be sold by an Ohio ancillary administrator to pay debts of a solvent domiciliary estate where there is sufficient personal property to pay Ohio debts, none of which have been allowed as valid claims nor scheduled in Probate Court?"
Section 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 alleged in the petition that the debts are approximately $5,500, and that there is no personal property in Ohio with which to pay the debts and costs.
In the answer of George E. Lingo, domiciliary executor, it is alleged:
"This answering defendant further represents that the valid debts amounting to $10,221.04 have been presented and have been certified to H.H. Crabbe, ancillary administrator of the estate of Lucy L. Lingo.
"The personal property of said decedent is wholly insufficient to pay the debts and costs of administration."
The agreed statement of facts filed in the Court of Appeals discloses that Ohio debts and costs of administration are approximately $2,000; that there is no personal property in Ohio with which to pay the Ohio debts; and that the total debts are $11,371.31.
The Court of Appeals found that it was necessary to sell the real estate described in the petition to pay debts. With that conclusion we are in full accord.
(2) "Does a nonresident surviving spouse have the right of election not to take under a foreign will when ancillary administration is being had?"
The appellant contends that the election of the surviving spouse is invalid under the provisions of Section 10511-9, General Code, having been filed later than six months after the date of the recording of the authenticated copy of the will.
That section provides in part as follows:
"When such authenticated copy has been filed and recorded according to law, and when no ancillary administration proceedings have been had or are being had in Ohio, the provisions relating to election shall be the same as in the case of resident decedents, except that such election shall be made not later than six months after the record of such authenticated copy." (Emphasis added.)
That section must be read and construed in connection with Sections 10511-7 and 10511-8, General Code, and applies only to a will executed, proved and allowed in a foreign country, and therefore has no application here.
Secondly, it applies only to cases "when no ancillary administration proceedings have been had or are being had in Ohio."
Furthermore, if appellant's contention should be sustained, that makes an end of his case. In the event the election of the surviving spouse be invalid, appellant would have no right to any part of his legacy until the death of such surviving spouse.
The record is silent as to whether the surviving spouse elected not to take under the will in the domiciliary state. The question of the validity of election of the surviving spouse is not properly presented by the record, therefore we shall assume for our present purpose that the election by the surviving spouse was a valid election.
(3) "If an election not to take is valid is the interest of a specific devisee of one-half of the Ohio real estate, accelerated?"
That question must be answered in the affirmative upon the authority of Davidson v. Miners Mechanics Savings Trust Co., Exr., 129 Ohio St. 418, 195 N.E. 845, 98 A. L. R., 1318. However, it should be noted in passing that appellant did not receive a specific devise of one-half of testatrix's Ohio real property.
(4) "Can a devisee who is devised 'and a sum equal to one-half of the net sale price of my farm in Ohio I elect to take said real estate at its appraised value, paying one-half in cash and using his devise as a credit thereon?"
(5) "Is 'and a sum equal to one-half of the net sale price of my farm in Ohio' a specific devise?"
The last two questions will be considered together.
As we read and construe item 11 of this will, the appellant and thirteen other named persons were bequeathed various sums of money. The bequest to appellant reads as follows:
"Bert E. White, my nephew, $400 and a sum equal to one-half of the net sale price of my farm in Ohio."
As has been pointed out, Bert E. White was not devised a half interest in the farm in Ohio. He was bequeathed $400 plus a sum equal to one-half of the not sale price of the farm.
The bequests to the other thirteen beneficiaries are all on equal footing with appellant's bequest, hence all were accelerated by the election of the surviving spouse not to take under the will.
The record discloses that the total value of this estate is approximately $40,000. The debts and legacies amount to some $25,000. It is quite probable that, after allowance to the surviving spouse of his interest and the transfer of the specifically devised real property and the specific bequest of $500 to Marie M. Taylor as provided in item I of the will, plus the costs and expenses of administrations in Ohio and California, the fourteen beneficiaries, including appellant, named in Item II may be compelled to accept only proportionate shares of their legacies. Should such a situation arise the appellant would be entitled to receive only his proportionate share of the bequest made to him. If appellant was allowed to take the Ohio farm in accordance with the provisions of his election he would thus receive more than a sum equal to one-half the net sale price of such farm and a greater portion of his bequest than received by the 13 other legatees. Therefore questions four and five must be answered in the negative.
Finding no error in the judgment of the Court of Appeals it should be and hereby is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, WILLIAMS, TURNER, MATTHIAS and HART, JJ., concur.