Opinion
No. 35039
Decided December 24, 1957.
Descent and distribution — Relict of deceased spouse dies intestate — Without surviving spouse or issue — Descent of estate which came from deceased spouse — Section 2105.10, Revised Code — Son of predeceased spouse takes from, not through, relict spouse — No distinction between ancestral and nonancestral property — Section 2105.01, Revised Code.
1. Under the provisions of amended Section 2105.10, Revised Code, when a relict of a deceased husband or wife dies intestate and without issue, possessed of identical real estate or personal property which came to such relict from any deceased spouse by deed of gift, devise, bequest, descent, or by an election to take under Section 2105.06 of the Revised Code, such estate, real and personal, except one half thereof which shall pass to and vest in the surviving spouse of such relict, shall pass to and vest in the children of the deceased spouse from whom such real estate or personal property came, or their lineal descendants, per stirpes.
2. Under the provisions of Section 2105.01, Revised Code, in intestate succession there shall be no difference between ancestral and nonancestral property.
3. Under the provisions of Section 2105.10, Revised Code, where a relict spouse dies intestate without having remarried, leaving no surviving spouse or surviving issue and possessed of identical property which came to her under the will of her predeceased spouse, the son and only lineal descendant of the predeceased spouse takes from the relict spouse, his stepmother, and not through her and from the predeceased spouse, his father.
APPEAL from the Court of Appeals for Ashland County.
In the Court of Probate the Department of Taxation of Ohio filed exceptions to the determination of the inheritance tax on the successions to the estate of Elsie C. Sherick, deceased, late of Ashland, Ohio.
The ground of the exceptions was that the succession to a stepson, Clyde C. Sherick, was taxed at one per cent as of the second class with an exemption of $3,500 instead of at seven per cent as of the fourth class with no exemption, under the provisions of Section 5731.12, Revised Code.
The Court of Probate overruled the exceptions to the determination of the tax.
On an appeal to the Court of Appeals on questions of law, the judgment of the Court of Probate was affirmed.
The matter is in this court for a review by reason of the allowance of the Taxation Department's motion to certify the record.
Messrs. Wright, Harlor, Purpus, Morris Arnold and Mr. C. Emory Glander, for appellee.
Mr. William Saxbe, attorney general, and Mr. Gerald A. Donahue, for appellant.
On November 18, 1917, Abram L. Sherick died testate. Under his will the sole legatees and devisees were Elsie C. Sherick, his second wife, and Charles T. and Clyde C. Sherick, sons of his first marriage. The two sons were his only lineal descendants, heirs at law and next of kin. The one son, Charles T. Sherick, died December 31, 1947, intestate and without heirs or next of kin except his only brother Clyde C.
In his will Abram L. Sherick devised certain realty to his second wife, Elsie Sherick, "to be hers absolutely and forever." This identical realty was retained by her until her death approximately 38 years later. She did not remarry and she left no will. Hence, the identical realty descended to Clyde C. Sherick under the amended provisions of Section 2105.10, Revised Code, the so-called half-and-half statute, which now reads in part as follows:
"When a relict of a deceased husband or wife dies intestate and without issue, possessed of identical real estate or personal property which came to such relict from any deceased spouse by deed of gift, devise, bequest, descent, or by an election to take under Section 2105.06 of the Revised Code, such estate, real and personal, except one half thereof which shall pass to and vest in the surviving spouse of such relict. shall pass to and vest in the children of the deceased spouse from whom such real estate or personal property came, or their lineal descendants, per stirpes. * * *"
It is the contention of the appellee, Clyde C. Sherick, that he took the realty from his father. The appellant contends that the appellee took the realty from his stepmother and not through his stepmother and from his father.
Since neither lower court rendered an opinion, this court is not informed as to the rationale adopted in holding that the realty descended to the appellee from his father and not from his stepmother. On the conceded facts this court finds itself unable to accept that view. In his will the father devised the identical realty to his second wife (the appellee's stepmother) "to be hers absolutely and forever." No higher degree of title and interest could have been conveyed to her. No amount of devious reasoning can alter the fact that not a vestige of either title or interest remained in anyone else. It happens that she decided to retain the identical realty, but there was nothing to prevent her from selling it or giving it away during her lifetime. She could have remarried; she could have adopted a child; she could have designated a statutory heir. Likewise, she could have willed the realty in any manner to suit her fancy. And, finally, were it not for the present provisions of Section 2105.10, Revised Code, supra, the appellee concededly would not have inherited any interest whatsoever in the realty. Manifestly, it descended to him from his stepmother and not from his father. Of course, under the provisions of Section 2105.01, "in intestate succession, there shall be no difference between ancestral and nonancestral property." Since the appellee is a stranger in blood to the stepmother, the appellee's succession should have been taxed in the fourth class as provided in Section 5731.12, Revised Code.
Counsel are agreed that there is no reported decision of this court involving the precise question here presented under Section 2105.10, Revised Code, supra, which is said to be virtually peculiar to this state. However, decisions of the lower courts are in harmony with the view of this court. Those decisions are summarized as follows in 17 Ohio Jurisprudence (2d), 447, Section 115.
"Property inherited by a relict from a deceased spouse, when it later becomes subject to the half-and-half statute, descends from such relict as his or her property and not through him or her as the property of the previously deceased spouse."
The judgment of the Court of Appeals must be reversed and final judgment rendered for the appellant.
Judgment reversed.
ZIMMERMAN, STEWART, BELL, TAFT, MATTHIAS and HERBERT, JJ., concur.