Summary
In Raleigh v. Raleigh, supra, Rose Raleigh died testate on May 24, 1941, and Michael Raleigh, her widower, died intestate on November 6, 1941.
Summary of this case from In re CrokeOpinion
No. 31778
Decided March 8, 1950.
Executors and administrators — Allowance to surviving spouse — Section 10509-54, General Code — Personal representative may claim allowance after surviving spouse's decease, when — Election to take under will or statute of descent — Section 10504-55, General code — Probate of will prerequisite — Probate Court may make election for estate of deceased surviving spouse — Section 10504-60 General Code, inapplicable, when.
1. The allowance given a surviving spouse under Section 10509-54, General Code, is in the nature of a debt and a preferred claim against the deceased spouse's estate, and, if a selection of property is not made or money in lieu thereof is not received by the surviving spouse during his lifetime, his personal representative may claim the allowance after the surviving spouse's decease.
2. Under Section 10504-55, General Code, a surviving spouse cannot elect to take under a will or under the statute of descent and distribution until after the probate of the will.
3. Section 10504-60, General Code, is not applicable if the surviving spouse referred to therein dies before the probate of the will of his spouse, and, in such case, after the probate of the will of the latter and the filing of the inventory, appraisement and schedule of debts thereunder, the Probate Court is authorized to make an election for the estate of the deceased surviving spouse as will be most advantageous to that estate.
APPEAL from the Court of Appeals for Summit county.
The instant case originated in the Probate Court of Summit County and concerns the estates of Rose Raleigh and her husband, Michael Raleigh. The devisees under the will of Rose Raleigh are likewise the next of kin of Michael Raleigh, Michael Raleigh's brother being the husband of Rose Raleigh's sister.
Rose Raleigh died testate on May 24, 1941, and Michael Raleigh, her widower, died intestate on November 6, 1941. Neither of them was survived by children or parents.
No proceedings to administer the estate of Rose Raleigh were started during Michael Raleigh's lifetime, and Rose Raleigh's will was offered for probate by appellees Curtis P. Raleigh and R.S. Barnhardt on December 4, 1941, and on December 15, 1941, they were appointed administrators with the will annexed.
The application to probate Rose Raleigh's will, the application for letters of appointment, and the inventory and appraisement did not disclose that Rose Raleigh left her spouse, Michael Raleigh, surviving her, and no allowance of money or property exempt from administration was made from the estate of Rose Raleigh to the estate of Michael Raleigh.
On July 23, 1942, appellees Curtis P. Raleigh and R.S. Barnhardt were appointed administrators of Michael Raleigh's estate and they proceeded to administer the same.
By the provisions of Rose Raleigh's will six parcels of real estate were specifically devised to her husband, Michael Raleigh, during his lifetime, and the remainders to various of her relatives, some of whom were, likewise, the relatives and next of kin of Michael Raleigh.
Among the residuary devisees was appellee Curtis Raleigh, Donald DeLong, Richard DeLong and Rozelle Barnhardt. The residue of Rose Raleigh's estate, with the exception of a small bequest to her church, was left to her husband, Michael.
Because of an inadequate legal description of the premises devised in Rose Raleigh's will, appellees Curtis P. Raleigh and R.S. Barnhardt, as administrators of her estate, instituted an action (No. 14552) on January 12, 1943, in the Probate Court, seeking a determination of the legal boundaries of the five parcels of real estate devised in item four. In that action the administrators of Rose Raleigh's estate were plaintiffs and Curtis Raleigh, Richard DeLong, Donald DeLong, a minor, Rozelle Barnhardt, Rozelle Barnhardt, as guardian of the person and estate of Donald DeLong, a minor, and Curtis P. Raleigh and R.S. Barnhardt, administrators of Michael Raleigh's estate, were defendants.
The petition, after setting forth the facts upon which a determination of the legal boundaries of the premises in question could be determined, recited as follows:
"Plaintiffs further say that the defendants, Curtis Raleigh, Richard DeLong, Donald DeLong, a minor, Rozelle Barnhardt, Curtis P. Raleigh and R.S. Barnhardt, administrators of the estate of Michael Raleigh, deceased, and Rozelle Barnhardt, guardian of the person and estate of Donald DeLong, a minor, are the only parties, heirs, or devisees interested in the determination of this action.
"Plaintiffs further say that the last will and testament of the said Rose Raleigh was not offered for probate until after the death of Michael Raleigh; that the said Michael Raleigh, during his lifetime, failed to make his election to take under the will or under the statute of descent and distribution.
"Wherefore, plaintiffs pray for the order and direction of this court in respect to the fixing and determining of the boundary lines to the said real estate devised under the will of the said Rose Raleigh, and for the further order and direction of this court in respect to the fixing and determining the rights, if any, of the estate of Michael Raleigh in and to the estate of said decedent, Rose Raleigh, and to their duties in the premises."
A waiver of service of summons and entry of appearance was filed by defendants, and the administrators of Michael Raleigh's estate filed an answer asking the court to determine the rights, if any, of Michael Raleigh's estate in and to the estate of Rose Raleigh, of which the same persons were administrators.
On January 20, 1943, a decree was entered which established the legal boundaries involved in the action and found that "Michael Raleigh, deceased husband of Rose Raleigh, takes according to the will of said Rose Raleigh; that Curtis P. Raleigh and R.S. Barnhardt, as administrators of the estate of said Michael Raleigh, and the heirs at law of said Michael Raleigh, have no interest in the estate of said Rose Raleigh, except as provided in the will of Rose Raleigh."
No appeal was prosecuted by any of the parties in the foregoing action.
On June 17, 1944, Curtis P. Raleigh and R.S. Barnhardt, as administrators of Michael Raleigh's estate, brought an action (No. 15148) to sell the real estate, of which Michael Raleigh died seized, to pay his debts and expenses of administering his estate, which were alleged to be in excess of $1,000. The defendants, and their relationship to Rose Raleigh and Michael Raleigh, are described in the petition as follows:
"Said Rose Raleigh, deceased spouse of Michael Raleigh, died leaving as her sole heirs at law, next of kin and distributees, defendants John Hearty, a brother; Eileen Healy, Gertrude Hearty and Vincent Hearty, children of James Hearty, a deceased brother; Mayme Burke, Rose Hergenroder and Kathryn McGee, children of Mary White, a deceased sister; Irene Greenleaf, daughter of Alice Zwisler, a deceased sister; Betty Zwisler, granddaughter of Alice Zwisler, a deceased sister; Curtis P. Raleigh and Rozelle Barnhardt, children of Margaret Raleigh, a deceased sister; and Richard DeLong and Donald DeLong, grandchildren of Margaret Raleigh, a deceased sister.
"Said Michael Raleigh died leaving as his sole heirs at law, next of kin and distributees, defendants Curtis P. Raleigh and Rozelle Barnhardt, children of Patrick H. Raleigh, a deceased brother; Richard DeLong and Donald DeLong, grandchildren of said Patrick H. Raleigh, a deceased brother; Margaret Raleigh, a sister, who thereafter died testate on July 19, 1943, leaving as her sole next of kin defendants Richard DeLong, Donald DeLong, Curtis P. Raleigh, Helen Cardarelli and Rozelle Barnhardt; that thereafter her will was admitted to probate by the Probate Court of Summit County, Ohio, and defendant Helen Cardarelli was appointed executrix of her estate, being estate No. 42969 of said court; that defendants Richard DeLong, Donald DeLong, Anna J. Cardarelli, Ruth Schuster and John Patrick Barnhardt are the sole heirs, legatees and devisees in her said will; and Helen Cardarelli, daughter of James Raleigh, a deceased brother."
The unknown heirs, next of kin and distributees of Rose Raleigh, deceased, and Michael Raleigh, deceased, were joined as party defendants.
The petition prayed that the court determine who are the sole heirs at law, next of kin and distributees of the decedents Rose Raleigh and Michael Raleigh, having an interest in the personal and real property of the decedents, the extent of the interest of each of the defendants therein, and what portion of the debts of the decedent and the costs of administering his estate will be charged against the interest of each of the defendants.
Answers and cross-petitions were filed by various defendants, alleging substantially that the will of Rose Raleigh was not offered for probate and record until after the death of her spouse, Michael Raleigh; that Michael Raleigh was thereby deprived of the rights to contest such will, to elect not to take thereunder but to take under the laws of descent and distribution as the surviving spouse of Rose Raleigh, and to select property or money in lieu thereof as exempt from administration; that no property or money in lieu of such property was set off or allowed to Michael Raleigh or his estate; and that the value thereof was the sum of $2,500.
The only property left by the will of Rose Raleigh to Michael Raleigh was household furniture of the value of $200, a life estate in various parcels of real estate, and the fee simple title in and to a parcel of real estate described in the petition.
The decedent, Michael Raleigh, as the surviving spouse of decedent, Rose Raleigh, was, under the laws of descent and distribution, entitled to take one-half of all parcels of real estate owned by Rose Raleigh, and was entitled to property or money in lieu thereof in the sum of $2,500 as exempt from administration in the estate of Rose Raleigh. The value of what Michael Raleigh, the decedent, would take under the laws of descent and distribution was many times greater than that under the provisions contained in the will of Rose Raleigh.
Curtis P. Raleigh and R.S. Barnhardt, the plaintiffs, were also administrators with the will annexed of the estate of Rose Raleigh, deceased; they were each devisees interested and with conflicting interests in and between the estates of Rose Raleigh, deceased, and Michael Raleigh, deceased, in that Curtis P. Raleigh individually and Rozelle Barnhardt, the wife of R.S. Barnhardt, were each devisees of Rose Raleigh.
Curtis P. Raleigh and R.S. Barnhardt, as administrators of the estate of Michael Raleigh, deceased, caused the estate of Rose Raleigh to be closed, entirely disregarding the fact that the decedent, Michael Raleigh, as the surviving spouse of Rose Raleigh, was entitled to reject the provisions of her will and take under the laws of descent and distribution an undivided one-half interest in and to the separate parcels of real estate devised in such will. The administrators of the estate of Rose Raleigh did not set off to the estate of Michael Raleigh property or the sum of $2,500 in money in lieu thereof as exempt from administration in the estate of Rose Raleigh, deceased.
The defendants alleged that they are entitled to have the court, sitting as a court of equity, make an election in the most advantageous manner to Michael Raleigh and his estate, and that they are entitled to an order setting off to the estate of Michael Raleigh either property or money in the sum of $2,500 as property exempt from administration in the estate of Rose Raleigh, deceased.
They prayed for the following orders, first, for the removal of Curtis P. Raleigh and R.S. Barnhardt as administrators of the estate of Michael Raleigh, deceased, because of dereliction of duty and conflict of interest; second, for reopening the estate of Rose Raleigh, deceased; to determine the rights of Michael Raleigh, deceased; third, for making an election for and on behalf of the estate of Michael Raleigh as the surviving spouse of Rose Raleigh, deceased; fourth, for allowing to Michael Raleigh property or money in the sum of $2,500 as property exempt from distribution in the estate of Rose Raleigh, deceased; and fifth, for cancelling the certificates of transfer of real property made in the estate of Rose Raleigh, deceased.
Replies and answers to the answers and cross-petitions were filed by plaintiffs in which the relationship of the cross-petitioners was admitted and the following allegations were made:
"These answering plaintiffs and defendants above named further say that at the time of the death of the said Rose Raleigh and for more than three years previous thereto the last will and testament of the said Rose Raleigh was in the care, custody and control of the said Michael Raleigh and that upon the death of the said Rose Raleigh the said Michael Raleigh, without reasonable cause, intentionally concealed it and withheld it and neglected and refused to cause it to be offered for or admitted to probate during his lifetime; that the said Michael Raleigh well knowing the contents of said last will and testament and that he was given a life estate only in the property hereinbefore referred to upon the death of his wife, Rose Raleigh, and well knowing of the rights which might accrue to him by law as the surviving spouse of the said Rose Raleigh, took possession of the entire estate of the said Rose Raleigh, collected the rents from all of the real property therein and converted the income from said estate to his own use, and that by reason of the statute in such case made and provided the said Michael Raleigh took no estate devised to him by the last will and testament of Rose Raleigh, deceased; that by reason thereof he, and now his personal representatives and his next of kin, are estopped from claiming any right to contest the said last will and testament of Rose Raleigh or to take any share of her estate under the laws of descent and distribution or otherwise through and under the said Michael Raleigh."
The case was heard by the Probate Court upon the pleadings and evidence, and by consent there was consolidated with it an action brought by Helen Cardarelli in which she undertook to set aside the judgment previously entered in case No. 14552 in the estate of Rose Raleigh, for the reason that she was not a party to that proceeding. Case No. 14552 was the one in which it had been found that the administrators and heirs at law of Michael Raleigh had no interest in the estate of Rose Raleigh except as provided in her will.
The Probate Court found and ordered as follows:
First, the estate of Rose Raleigh was ordered to pay to the estate of Michael Raleigh the sum of $2,500 as property exempt from administration; second, that by reason of this payment the administrators of the estate of Michael Raleigh, deceased, were not entitled to an order to sell the real estate of which Michael Raleigh died seized, there being sufficient personal property to pay all his debts; third, that the heirs of Michael Raleigh were interested and necessary parties in cause No. 14552, were not made parties thereto and are not bound by the judgment therein entered, and the judgment entered in cause No. 14552 was set aside; fourth, that, by reason of the fact that no application to probate the will of Rose Raleigh, deceased, was filed during the lifetime of Michael Raleigh and he was afforded no opportunity to elect to take or reject under the provisions of such will, it was the duty of the court, sitting as a court of equity, to make such election for and on behalf of Michael Raleigh in the most advantageous manner to him, which the court found to be under the statute of descent and distribution; fifth, the court removed Curtis P. Raleigh and R.S. Barnhardt as administrators of the estate of Michael Raleigh because they had conflicting interests as between the estate of Rose Raleigh and the estate of Michael Raleigh; sixth, the court reopened the estate of Rose Raleigh; seventh, the court found that one-half of the net estate of Rose Raleigh passed to Michael Raleigh as her surviving spouse, under Section 10504-55, General Code, and that the identical property, both real and personal, passed one-half to the heirs of Rose Raleigh, deceased, and one-half to the heirs of Michael Raleigh, deceased; and, eighth, the court determined the heirs of each estate and the proportions to which they are entitled.
An appeal on questions of law was taken to the Court of Appeals which reversed the judgment of the Probate Court wherein that court allowed the recovery of $2,500 from the estate of Rose Raleigh, dismissed the action for sale of lands of decedent Michael Raleigh, made the election for Michael Raleigh not to take under the will of Rose Raleigh, and reopened the estate of Rose Raleigh, deceased. The Court of Appeals ordered "that the said appellants be restored to all things which they have lost by occasion of said judgment," and remanded the cause to the Probate Court for further proceedings.
The case is before this court upon the allowance of a motion to certify the record.
Messrs. Schnee Belden and Messrs. Davis Lipps, for appellees. Messrs. Brouse, McDowell, May, Bierce Wortman and Mr. Arthur C. Keeney, for appellants.
We shall consider the various findings of the Probate Court which were reversed by the Court of Appeals.
First, was the Probate Court authorized to order the estate of Rose Raleigh to pay the estate of Michael Raleigh the sum of $2,500 as property exempt from administration?
Section 10509-54, General Code (114 Ohio Laws, 413), provided:
"When a person dies leaving a surviving spouse, or minor child or children, the following property if selected as hereinafter provided, shall not be deemed assets or administered as such, but must be included and stated in the inventory of the estate: household goods, livestock, tools, implements, utensils, wearing apparel of the deceased and relics and heirlooms of the family and of the deceased, ornaments, pictures and books, to be selected by such surviving spouse * * * not exceeding in value 20 per centum of the appraised value of the property, real and personal, comprised in the inventory, but in no event is the value of the property not deemed assets to be more than $2,500, if there be a surviving spouse * * * nor less than $500 * * * if there be so much comprised in the inventory and selected as herein provided; or, if the personal property so selected be of less value than the total amount which may be selected as herein provided, then such surviving spouse * * * shall receive such sum of money as shall equal the difference between the value of the personal property so selected and such amount, and such sum of money shall be a charge on all the property, real and personal, belonging to the estate, prior to the claims of all unsecured creditors of the decedent or of the estate."
The Court of Appeals was of the opinion that the right of a surviving spouse, under Section 10509-54, General Code, is a personal right belonging to the relict of a deceased spouse and as such does not survive such relict's death. As authority for its view, that court cited the case of In re Estate of Metzger, 140 Ohio St. 50, 53, 42 N.E.2d 443. However, the Metzger case was entirely dissimilar to the instant one and simply decided, as the syllabus states:
"When a wife expires within three days after the death of her husband, or within 30 days from his demise if their extinction is attributable to a common accident, he is deemed to have died last and his estate passes and descends accordingly, under Section 10503-18, General Code. In such circumstance there is no widow within the meaning and intent of the statute, and no year's allowance under Section 10509-74, General Code, and no property not treated as assets under Section 10509-54, General Code, may be claimed by her personal representative."
In the instant case Michael Raleigh did survive as the spouse of Rose Raleigh and he was a widower and entitled to claim property not treated as assets under Section 10509-54. He was prevented from doing so because he died before any inventory was filed in the estate of Rose Raleigh and since the property which may be claimed as not assets or the money in lieu thereof shall consist of not more than 20 per cent of the appraised value of the property, real and personal, a selection by Michael Raleigh was impossible.
In Davidson v. Miners Mechanics Savings Trust Co., Exr., 129 Ohio St. 418, 195 N.E. 845, 98 A.L.R., 1318, the second paragraph of the syllabus reads:
"The widow's year's allowance and the allowance given her under Section 10509-54, General Code, are a debt and preferred claim, respectively, against her deceased husband's estate, deductible before a determination of the share of the estate to be taken by the widow `under the statute of descent and distribution.'"
If the allowance under Section 10509-54, General Code, is a preferred claim against the estate, it is logical that it inures not only to the benefit of the spouse who is entitled to it but likewise to his estate after his decease.
In the case of Stetson, Admr., v. Hoyt, 139 Ohio St. 345, 40 N.E.2d 128, the syllabus reads:
"By virtue of Section 10509-54, General Code, the administrator of a surviving spouse is entitled to a lien upon the real property of her predeceased spouse for the balance in money over the appraised value of the personal property of such predeceased spouse selected by such surviving spouse in her lifetime, so as to make up the maximum allowance under the statute even though no further selection has been made by such surviving spouse."
In the Stetson case a widow had selected only $65 worth of property for her statutory exemption of 20 per cent of the total value of all the property of her deceased husband, and there was a balance due of more than $2,000 to which she would have been entitled had she lived, and to which her administrator claimed to be entitled. The Probate Court disallowed the administrator's claim for the balance due, the Court of Appeals reversed the judgment of the Probate Court, and the Supreme Court sustained the Court of Appeals.
Judge Hart stated on page 349:
"The surviving spouse may select at the appraised value all or any part of the household goods, livestock, tools, implements, utensils, wearing apparel of the deceased, relics and heirlooms of the family of the deceased, ornaments, pictures and books not exceeding in the aggregate the amount of the allowance to be determined as above stated. If the property so selected be of less value than the total amount which may be selected, then the balance shall be paid to such surviving spouse in money. If there is no such property, or if none is selected, then the whole amount of the allowance shall be paid to such surviving spouse in money, and such money shall be a charge on all property, real or personal, belonging to the estate of the deceased spouse.
"The allowance provided by the statute in question in excess of the value of the specific personal property actually selected constitutes an obligation in the nature of a debt due from the estate to the surviving spouse which has a preferred status as to payment as against all unsecured creditors of the estate of the deceased spouse."
If a widow has made a selection of only trifling property and dies, and a balance of over $2,000 has neither been selected by her nor paid her, and that balance constitutes a debt or preferred claim to which her estate is entitled, it logically follows that the entire claim is in the nature of a debt and constitutes a preferred claim, and if the one who is entitled to make the claim is prevented from doing so by his death, his estate is entitled to an allowance of money in lieu thereof.
We hold, therefore, that the Probate Court was justified in ordering the estate of Rose Raleigh to pay to the estate of Michael Raleigh the sum of $2,500 as property exempt from administration.
From the foregoing holding it necessarily follows that the Probate Court was correct in its second finding that the administrators of Michael Raleigh were not entitled to an order to sell his real estate to pay his debts and administration costs since the $2,500 was more than sufficient to pay them.
As to the third finding of the Probate Court, setting aside the judgment entered in case No. 14552, wherein it was determined that the estate of Michael Raleigh and his heirs at law had no interest in the estate of Rose Raleigh except as provided in her will, there is no serious contention. Counsel for appellees in the oral argument before this court practically abandoned any claim with reference to the judgment in case No. 14552 being res judicata. That judgment assuredly would not bind those heirs at law of Michael Raleigh who had not been parties to it. There is no such privity between a personal representative and the heirs of a person as will cause a judgment against the representatives to foreclose the heirs, who are not parties thereto, where real estate is involved.
The fourth finding of the Probate Court presents a more difficult question. That finding was that, by reason of the fact that no application to probate the will of Rose Raleigh was filed during the lifetime of Michael Raleigh, he was afforded no opportunity to elect to take or reject under the provisions of Rose's will and it was the duty of the court, sitting as a court of equity, to make a selection on behalf of Michael Raleigh in the most advantageous manner to him, which the court found to be under the statute of descent and distribution.
It is argued by appellees that the Probate Court was without jurisdiction to make an election on behalf of the estate of Michael Raleigh; that Michael Raleigh was aware that his wife had died leaving a will and he had possession of it; and that, upon his death some five and one-half months later, the will had not yet been offered for probate. It was urged further that he had collected the rents of Rose Raleigh's property and applied them to his own use both before her death and afterwards, and that he had acted as if he were entitled to the income from the real estate.
It was contended that these actions of Michael Raleigh constituted an election to take under the will and, if they did not constitute such an election, that, by reason of his conduct, Michael Raleigh was estopped from making an election to take otherwise than under the will and his heirs are bound thereby.
Section 10504-55, General Code (116 Ohio Laws, 390), provided:
"After the probate of the will and filing of the inventory, appraisement and schedule of debts, the Probate Court on the motion of the executor or administrator, or on its own motion, forthwith shall issue a citation to the surviving spouse, if any, to elect whether to take under the will or under the statute of descent and distribution; but in the event of election to take under the statute of descent and distribution, such spouse shall take not to exceed one-half of the net estate. Such election shall be made not later than one month after service of the citation to elect, or if no citation has been issued, within nine months after the appointment of the executor or administrator or the further time allowed by the court therefor for good cause shown, on motion filed before the expiration of such period, and when made shall be entered upon the minutes of the court."
Section 10504-60, General Code (116 Ohio Laws, 390), provided:
"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."
It is claimed that, in accordance with Section 10504-60, General Code, since Michael Raleigh died before he made any election to take under the will of Rose Raleigh he is conclusively presumed to have taken under the will and his heirs are bound thereby.
It is to be observed, however, that under Section 10504-55, General Code, the election of a surviving spouse to take under the will or under the statutes of descent and distribution is to be made after the probate of the will. Where the will is probated during the lifetime of the surviving spouse and no election is made, there is, of course, the conclusive presumption that the surviving spouse has elected to take under the will. Miller v. Miller, Admr., 129 Ohio St. 230, 194 N.E. 450; In re Estate of Knofler, 143 Ohio St. 294, 55 N.E.2d 262.
Where it was legally impossible to make an election to take under a will, and such would be the case where a will was not probated until after the death of a surviving spouse, the Probate Court has jurisdiction to enter an election on behalf of the one who could not make that election for himself.
In the case of Ambrose v. Rugg, Admx., 123 Ohio St. 433, 175 N.E. 691, 74 A.L.R., 449, the first paragraph of the syllabus reads:
"The jurisdiction of the court to enter an election in behalf of a mentally incompetent widow to take under the provisions of the law instead of under the provisions of the will, is not abrogated by a statute providing in substance that a failure to file such election within a specified time would be deemed an election to take under the will."
On page 439, Judge Matthias cited two cases with approval, as follows:
"The case of Peckenschneider v. Schnede (Iowa), 227 N.W. 335, involved a situation where the widow died prior to the probate of the will. The Supreme Court of Iowa held that the statute of that state, which provides that a spouse is conclusively presumed to have elected to take under a will in the absence of an election otherwise did not apply.
" Spruance, Admr., v. Darlington, Exr., 7 Del. Ch. 111, 30 A. 663, involves a case where the existence of a lost will was innocently concealed until after the death of the widow of the testator, and she therefore had no opportunity to elect whether she would take under the will or the law. It was held that, as she was deprived of that privilege from circumstances over which she had no control, the court would make the election most advantageous to her interests, and the court made its finding and entered its decree accordingly."
In the instant case, since the will of Rose Raleigh was not offered for probate until after the death of her spouse, Michael Raleigh, he had no opportunity to elect to take under the will for the reason, as has been suggested, that Section 10504-55, General Code, provides that the election be made after the will is probated and the inventory, appraisement and schedule of debts filed.
It is true that Michael knew of the will, but apparently so did most of the family, and, since Michael had always treated Rose's property as his own, he continued to do so.
Upon both logic and authority, since no election to take under a will or under the statute of descent and distribution can be made until after the probate of the will, if a surviving spouse dies before such will is probated, he is not bound by the provisions of Section 10504-60, General Code, and the Probate Court is authorized to make an election for the estate of the spouse who survives the predeceased spouse, which election shall be that most advantageous to the estate.
The Probate Court was, therefore, not in error when it made an election for and on behalf of the estate of Michael Raleigh, under the will of Rose Raleigh, according to the statute of descent and distribution.
The fifth finding of the Probate Court, by which it removed Curtis P. Raleigh and R.S. Barnhardt as administrators of the estate of Michael Raleigh, needs little comment or discussion. It is obvious that, as remaindermen heirs of Rose Raleigh, their interests were hostile to the claims of the heirs of Michael Raleigh and, without any imputation on their integrity, it would be practically impossible for them to act as administrators of Michael Raleigh's estate in its best interests.
In its sixth finding the court reopened the estate of Rose Raleigh, which it necessarily had to do in view of the remainder of its findings, and in its seventh and final finding it provided for the descent of the estate of Rose Raleigh under the election made for the estate of Michael Raleigh and determined the heirs of the estates of both Rose Raleigh and Michael Raleigh and the proportion to which they are entitled.
Since we are of the opinion that the probate judge's findings upon the controverted issues are correct, its fifth, sixth, seventh and final findings follow as a matter of course.
The judgment of the Court of Appeals is reversed and that of the Probate Court affirmed.
Judgment reversed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, TURNER and TAFT, JJ., concur.