Opinion
No. 29702
Decided May 3, 1944.
Wills — Election by surviving spouse to take under will — Conclusive presumption of election upon death of spouse before limitation expired — Section 10504-60, General Code, constitutional — Election presumed notwithstanding spouse insane and died before limitation expired.
1. Section 10504-60, General Code, which provides, inter alia, that if a surviving spouse dies before the expiration of the time limit provided by law without having made an election, such spouse shall be conclusively presumed to have elected to take under the will, does not by such provision deny due process of law and is constitutional.
2. Where the surviving spouse of a testator dies before the expiration of the time for making election, she shall be conclusively presumed to have elected to take under the will notwithstanding that during the period between the testator's death and her death she was continuously insane and incapable of making an election.
APPEAL from the Court of Appeals of Marion county.
This cause arose in the Probate Court of Marion county, Ohio, and involves the question whether Bertha A. Knofler, surviving spouse of Barney J. Knofler, deceased, took under the will of her deceased husband, or under the law, she having died without making an election by reason of her continued insanity.
The facts are not in dispute.
Barney J. Knofler and Bertha A. Knofler were married on November 18, 1909, and lived together until his death on April 17, 1942, excepting that the wife, having been adjudged insane, was confined in the Columbus State Hospital from March 11, 1942, continuously until her death on May 28, 1942. They had no children or adopted children. In addition to his widow, Barney J. Knofler left surviving him his sister, Edna S. Munn, and "others as his only next of kin." Bertha A. Knofler is survived by her sister, Edna S. Berringer, and two nephews, Arthur Cheney and Richard Cheney, her only next of kin.
Barney J. Knofler left a last will and testament which was probated in the Probate Court of Marion county, Ohio, on April 28, 1942, and on that date Robert H. Reidenbaugh was appointed executor and qualified as such. By the terms of the will a trust was created and the trustee was authorized and directed to use the entire income and the corpus of the estate, if necessary, for the care, comfort and support of Bertha A. Khofler during her lifetime. The trustee was directed to give and turn over, at the death of Bertha A. Knofler, all the trust estate remaining in his hands to testator's sister, Edna Munn, if then living, and, if not, to his niece, Dorothy Hoffman.
During the lifetime of the widow, Bertha A. Knofler, a commissioner was appointed by the court "to estimate the value of the provision made in the will of the said Barney J. Knofler, deceased, for his surviving spouse, Bertha A. Knofler, who was insane at the time of the death of said Barney J. Knofler, and who continued in a state of insanity until the time of her death, and the value of the rights of such insane spouse in the estate of said decedent by law." The report of the commissioner, which was not filed in the Probate Court until after the death of the surviving spouse, contained this summary:
"Provisions under the will."So much of the entire income and corpus of the estate may be used in the care, comfort and support of the spouse, if it be necessary to use all of the same.
"Under Law
Year's allowance, estimated $1,200.00 Selected under General Code 10509-54 1,581.02 One-half of net estate 2,145.57 --------- "Total $4,926.59"
The case was submitted to the Probate Court upon (a) the report of the commissioner, (b) the application of Edna S. Berringer, administratrix of the estate of Bertha A. Knofler, deceased, praying the court to determine it to be "better for the surviving spouse, * * * and/or her estate to elect to take under the provisions made by law," (c) the motion of Arthur Cheney and Richard Cheney, seeking an order of the same import as that sought by such administratrix in her application and (d) an agreed statement of facts.
The Probate Court found that the provisions of the will were better for the surviving spouse than the provisions made by law and adjudged that an election for such surviving spouse to take under the will be made and entered on the journal of the court.
On appeal from such judgment to the Court of Appeals, that court found "that there was error in the order as made by the Probate Court of Marion county, Ohio, in that the court attempted to do by election for the insane spouse pursuant to Sections 10504-63 and 10504-64 of the General Code of the state of Ohio, what the law by reason of the death of the said surviving spouse, conclusively presumed had already been done, as provided by Section 10504-60 of the General Code of the state of Ohio, and by reason thereof, the judgment of the Probate Court of Marion county, Ohio, should be modified by determining that upon the death of Bertha A. Knofler, the proceedings, under Sections 10504-63 and 10504-64, abated, and by reason of the statute in such cases made and provided, there was a conclusive presumption of an election to take under the will of Barney J. Knofler, by reason of the death of said Bertha A. Knofler within the period limited by law, without having made an election."
The appellate court thereupon adjudged that the judgment of the Probate Court be modified accordingly and, as modified, affirmed.
This court allowed a motion to certify the record.
Messrs. Carhart Carhart, for appellant Edna S. Berringer, administratrix.
Mr. Walter D. Moore, for appellants Arthur and Richard Cheney.
Messrs. Donithen Michel and Mr. French Crow, for appellee, Edna S. Munn.
The Court of Appeals held that this case is governed by Section 10504-60, which reads:
" If the surviving spouse fails to make such election in person or by written instrument, or dies, at any time before the expiration of the time limit provided by law without having made such election, such spouse shall be conclusively presumed to have elected to take under the will and such spouse who fails to elect and the heirs, devisees and legatees of such spouse who dies without having elected and those claiming through or under them shall be bound accordingly, and persons may deal with the property of the decedent in accordance therewith." (Emphasis added.)
The time limit allowed by law for making such election is provided for by Section 10504-55, General Code, and had not expired when the surviving spouse died.
Appellant administratrix maintains that Section 10504-60, General Code, denies due process and is unconstitutional by reason of the provision respecting a conclusive presumption.
The case of Miller v. Miller, Admr., 129 Ohio St. 230, 235, 194 N.E. 450, is instructive in connection with this phase of our inquiry. At the time that decision was handed down, Section 10504-60, General Code, in part, read:
"If the surviving spouse dies within the time limit for election without having elected, then such spouse, whether or not a citation has been issued, shall be presumed conclusively to elect to take under the statute of descent and distribution." (114 Ohio Laws, 357.)
Though now changed by amendment the portion relating to conclusive presumption is analogous to the the corresponding part of the present section. It was aptly stated in the opinion in that case that the "conclusive presumption is tantamount to an actual election."
The constitutional question made herein is not parallel to that presented when a statute creates a conclusive presumption with respect to evidence on the trial of a cause and thus denies a party the right to Offer evidence in rebuttal. The regulation of election is within the power of the General Assembly and may be broad or narrow in scope as legislative discretion determines. The intent of the statutory provision under consideration is to make the will effective as to the property rights of the surviving spouse when he or she dies within the "time limit" without making an election. The provision is but a regulation of election and does not work a denial of due process and is constitutional.
The Probate Court apparently acted under the following sections of the General Code:
Section 10504-63. "When, because of unsound mind, or other legal disability, the surviving spouse is unable to make an election, as soon as the facts come to the knowledge of the Probate Court, at any time within the time allowed by law for election, it shall appoint some suitable person to ascertain the value of the provision made for such spouse in lieu of the provisions made by law, and the value of the rights by law in the estate of the deceased consort."
Section 10504-64. "On the return of the report of the person appointed to make such investigation, the court shall determine whether the provision made by the testator for the surviving spouse, in the will, or the provision by law, is better for such spouse, and shall elect accordingly. It shall thereupon record upon its journal the election for such spouse under disability, by virtue of the proceeding herein providded, which election, when so entered, shall have the same force and effect as an election made by one not under such disability."
There has been much argument pro and con as to whether at the time the testator's widow died there was, as to election, a pending proceeding which abated at her death.
The Probate Court, acting upon knowledge that the widow was unable to make an election on account of her unsoundness of mind, appointed the commissioner to make a report. Though the commissioner was appointed prior to the death of the surviving spouse, his report was filed after she died, as were the application of Edna S. Berringer, administratrix of the estate of the surviving spouse, asking the court to determine that it would be "better for the surviving spouse * * * and/or her estate, to elect to take under the provisions made by law," and the motion of Arthur Cheney and Richard Cheney raising the same question. The Probate Court conducted a hearing on the report, the application and the motion, at the same time, and at the conclusion thereof entered judgment that an election be made for the surviving spouse to take under the will.
It is hardly necessary to enter into the question of abatement for it can not well be said that the appointment of a commissioner with directions to make a report to the court was the institution of a proceeding. If the filing of the commissioner's report, of the application of the administratrix of the surviving spouse's estate, or of the motion of Arthur Cheney and Richard Cheney, constituted the commencement of a proceeding, there was no abatement because the filing took place after the surviving spouse died. It is sufficient to say that the adjudication, which was made in a matter which had not abated, was a valid final order from which an appeal on questions of law could be taken to the Court of Appeals.
Did the Court of Appeals err in holding that the matter of election is governed by Section 10504-60, General Code?
Appellant administratrix maintains that the widow did not, within the meaning of the statute, "fail" to make an election; that she could not fail for the simple reason she was insane; and that an implication necessarily arises from the language employed that she must have been able to make the election.
If the parts not applicable here are deleted, Section 10504-60, General Code, reads: "If the surviving spouse * * * dies, at any time before the expiration of the time limit provided by law without having made such election, such spouse shall be conclusively presumed to have elected to take under the will * * * and the heirs, devisees and legatees of such spouse who dies without having elected and those claiming through or under them shall be bound accordingly, and persons may deal with the property of the decedent in accordance therewith."
It is apparent that the contention of appellant administratrix is based principally on the portion of the statute deleted above as not applicable. The deleted language, which treats of failure to elect and implies, ability to elect, refers to a surviving spouse who lives beyond the time limit provided by law.
When the statute is viewed from its four corners to ascertain the intendment, it is evident that the intent of the Legislature was that, in case the surviving spouse dies before the time limit expires without having made such an election, there is a conclusive presumption of an election to take under the will, regardless of the reason for the nonelection. Inability to make the election is not a factor of controlling importance, for the applicable part of the statutory provision applies to an insane as well as a sane person. The Court of Appeals did not err in holding that the matter of election was controlled by that section of the statute.
Appellant administratrix has cited Ambrose v. Rugg, Admx., 123 Ohio St. 433, 175 N.E. 691, 74 A. L. R., 449, but that case is inapposite here due to subsequent change in the statutory law.
For the reasons stated the judgment is affirmed.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN and TURNER, JJ., concur.
BELL, J., dissents.