Opinion
No. 41326
Decided July 10, 1968.
Wills — Election not to take under will — Made by court on behalf of spouse — Section 2107.45, Revised Code — Legatees without right to contest.
Legatees under a will have no right to contest an election not to take under a will made by the Probate Court on behalf of a surviving spouse who because of legal disability is unable to make such election on his own behalf.
APPEAL from the Court of Appeals for Franklin County.
John Henry Strauch died testate July 17, 1965, survived by his mentally incompetent wife, Alice J. Strauch. On August 2, 1965, Charles Vorhees, appellee herein, was appointed guardian for the widow. On August 4, 1965, the will of John Henry Strauch was admitted to probate, an executor was appointed, and, upon his application on September 3, 1965, the Probate Court, pursuant to Section 2107.45, Revised Code, appointed a commissioner to determine the respective benefits that would accrue to the widow by an election to take under the will or against the will. Section 2107.45, Revised Code, provides that in the event a surviving spouse is unable because of a legal disability to make an election as provided by Section 2107.39, Revised Code, whether or not to take against the will, the Probate Court shall make such election on the spouse's behalf and to her best interests. The report of the commissioner returned September 27, 1965, determined the value of the provision made for the widow by the will to be $8,820.50 and the value of the provision made for the widow by statute in the event of an election to take against the will to be $44,102.50 — a difference of $35,282. On September 28, 1965, the Probate Court recorded in its journal its decision to elect, on behalf of the incompetent widow, to take against the will, determining thereby that the provision made by statute for the widow was "better for such spouse," as that term is used in Section 2107.45, Revised Code.
Subsequently, on November 18, 1965, certain legatees under the will of John Henry Strauch, appellants herein, filed a motion for reconsideration of the Probate Court's election. The journal entry of September 28, 1965, was at that time vacated. It was reinstated on December 6, 1965, and was vacated again on December 17, 1965. Finally, on August 24, 1966, a successor judge filed a new journal entry, making an election to take under the will on behalf of the incompetent widow. This determination was appealed by the widow's guardian on September 10, 1966.
Upon appeal the Court of Appeals determined (1) that the appellants herein had no standing to challenge the original election made by the Probate Court and were not proper parties before that court, but that the appellee herein did have standing to challenge the final election and was a proper party before the court, and (2) that the Probate Court did have authority to vacate, during term, its original election, but (3) that the Probate Court abused its discretion in finally electing on behalf of the widow to take under the will instead of against the will. Thereupon, the Court of Appeals, in a written opinion ( 11 Ohio App.2d 173), reversed the judgment of the Probate Court.
This court allowed a motion to certify the record.
Messrs. Means, Bichimer Burkholder, Mr. Raymond A. Bichimer and Mr. John C. Burkholder, for appellants-legatees.
Messrs. Vorys, Sater, Seymour Pease, Mr. Colborn M. Addison, Mr. Roger A. Yurchuck and Mr. James R. Beatley, Jr., for appellee, Charles Vorhees, guardian of Alice J. Strauch, an incompetent.
There are several questions before us, but because of our disposition of the first question — whether legatees under a will have the right to contest an election not to take under a will, made by a Probate Court on behalf of an incompetent surviving spouse pursuant to Section 2107.45, Revised Code — we find it unnecessary to reach the other issues in this case.
The right to dispose of property by will and to receive property under a will is a matter of statute. See 55 Ohio Jurisprudence 2d 522, Wills, Section 47. Since the right to make a will is a matter of statute, the statutes may place certain conditions and limitations thereon. One of the conditions on testamentary dispositions by a husband or wife is the right of the surviving spouse to elect not to take under the will but under the statute of descent and distribution, Section 2107.39, Revised Code. This right in the surviving spouse is absolute. However, in the event a surviving spouse is incompetent and thus unable to make such election, Section 2107.45, Revised Code, provides that the Probate Court shall make the election on behalf of such spouse. Thus, the right to make such an election lies in the surviving spouse or in the Probate Court acting on behalf of the surviving spouse.
Section 2107.45, Revised Code, provides that, in making such determination, the sole yardstick by which the Probate Court shall be guided is what is "better for such spouse."
Since the only question to be determined by the Probate Court in electing whether an incompetent surviving spouse shall take under the will is what is "better for such spouse," the only persons who may question such determination are the guardian of such spouse or some other party acting on behalf of such spouse. Legatees under the will have no right to contest such action on their own behalf.
In other words, legatees under a will have no right to contest an election not to take under a will made by the Probate Court on behalf of a surviving spouse who, because of legal disability, is unable to make such election on his own behalf.
Thus, the determination of the Court of Appeals that the legatees were not proper appellees in that court, on the ground that such legatees had no legal interest or right to contest such election, was proper. Therefore, appellants-legatees are not proper parties to pursue an appeal to this court and we do not reach the other errors assigned herein.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
TAFT, C.J., ZIMMERMAN, O'NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.