Opinion
No. 30577
Decided May 8, 1946.
Executors and administrators — Husband may dispose of realty during lifetime, without wife's consent, when — Sections 10502-1 and 10502-6, General Code — Statutory rights granted surviving spouse expectant interests only — Property exempt from administration and year's allowance to widow — Sections 10509-54, 10509-55 and 10509-74, General Code — Dependent upon contingency that property part of decedent's estate — Transfer by husband during lifetime operates to deprive widow of property, when.
1. Subject to the limitations contained in Section 10502-1 and Section 10502-6, General Code, a husband may dispose of his real property during his lifetime without the consent of his wife.
2. The rights which the General Assembly has granted a surviving spouse by the provisions of Section 10509-54, Section 10509-55 and Section 10509-74, General Code, are expectant interests only, dependent upon the contingency that the property, to which such rights attach, becomes a part of the decedent's estate, which contingency does not occur if decedent has sold or given away the property during his lifetime.
3. A transfer of property by a husband during his life will operate to deprive his widow of property which the statutes would otherwise have given her at his death, provided such transfer actually divests him of ownership.
CERTIFIED by the Court of Appeals of Cuyahoga county.
There is little or no dispute as to the facts in this case. Prior to the year 1916, John A. Neville and his then wife, Anna A. Neville, acquired in their joint names an improved parcel of real estate located at 7416 Harvard avenue in the city of Cleveland, Ohio. The improvement consisted of a two-family dwelling house. John A. and Anna A. Neville had one daughter, Florence Neville, now Florence Champion (one of the appellees here). One of the apartments was rented, the other was occupied by John A. Neville and his wife until her death in 1916. Thereafter he continued to occupy the same apartment. In 1929 he remarried. His second wife was Amy Neville (appellant here). John A. and Amy Neville occupied the apartment, in which he had been living, until his death in 1944. After the death of his first wife in 1916, he paid no rent for his apartment. He collected the rent from the tenant, paid the taxes and repairs and applied the excess to his own use. He at no time made any accounting to his daughter. On October 2, 1943, he conveyed the premises, without his wife's knowledge, to his daughter Florence for a recited consideration of $1.00. This deed was duly filed for record in the office of the recorder of Cuyahoga county, Ohio, five days thereafter.
On October 5, 1943, he executed his last will and testament. Item V thereof reads as follows:
"I do not doubt that some question may arise in the mind of my beloved wife, Amy, as to what has happened to our homestead property. I therefore believe that in fairness to her I should explain what has taken place. Before doing so, I wish her to further understand that I chose not to discuss this matter with her during my lifetime for the reason that I was fearful of serious misunderstanding arising between us.
"I have just learned recently that for the past twenty-seven (27) years, namely ever since the decease of my former wife, Anna, I had erroneously believed that the entire homestead was mine and I had treated it as my own, keeping for myself the net profits from the homestead, when in fact the same should have been equally divided with my daughter, Florence Champion, for the reason that I have learned that under the law that was in effect twenty-seven years ago, my daughter, Florence Champion, received the one-half (1/2) interest in the homestead which had formerly belonged to my late wife, Anna.
"In computing one-half (1/2) (of the net profits for the past twenty-seven (27) years I found that to date my indebtedness to my daughter, Florence Champion, exceeds six thousand dollars ($6,000).
"I have implored her to accept in full settlement my interest in the real estate and trust that you, Amy, my dear wife, will transfer to her your dower interest immediately upon my decease, in order that some semblance of justice would result.
"It is for this reason that I have made my will in this manner."
After the death of John A. Neville, his will was duly admitted to probate by the Probate Court of Cuyahoga county, and Edwin F. Sawicki (the other appellee here) was appointed and he qualified as executor of the estate. The total inventory amounted to $5,818.50 including the value of one-half of the real estate hereinbefore referred to. The appraisers set off to the surviving spouse, Amy Neville, the sum of $1,163.70 as the value of property exempt from administration and $1,300 as her twelve-months' allowance. Amy Neville elected not to take under the will and thereafter she instituted this action against Florence Champion and Edwin F. Sawicki, as executor, in the Common Pleas Court of Cuyahoga county, to set aside and to declare void the deed dated October 2, 1943, from John A. Neville to Florence Champion, or in the alternative to sell the property and have plaintiff's (Amy Neville) twelve-months' allowance, exemption, dower and distributive share of the estate first paid from the proceeds of the sale.
The petition contained two causes of action. The first is based upon the contention that defendants and John A. Neville had schemed and agreed upon a plan to defraud the plaintiff of her rights in the property described, and the second is based upon the contention. that Florence Champion exerted undue influence in order to secure the deed.
Issue was joined by separate answers, and upon trial the court found that John A. Neville, during his marriage to plaintiff, owned one-half interest in the real estate described in the petition; that he conveyed his interest to defendant Florence Champion in which conveyance plaintiff did not join; and that plaintiff is entitled to have her dower set off to her as prayed for in the petition, and that all other relief prayed for is denied.
An appeal on questions of law was perfected to the Court of Appeals, wherein the judgment of the Court of Common Pleas was affirmed.
The judgment on which the Court of Appeals had agreed, being, in the opinion of a majority of the judges of that court, in conflict with the judgment entered by another Court of Appeals in the case of Routson v. Hovis, Admr., 60 Ohio App. 536, 22 N.E.2d 209, the case was certified to this court pursuant to the provision of Section 6 of Article IV of the Ohio Constitution.
Mr. D.M. Bader, for appellant,
Mr. Paul Clarke and Mr. Edwin F. Sawicki, for appellees.
This record contains no evidence to warrant a court in declaring that the deed from John A. Neville to his daughter Florence Champion, dated October 2, 1943, was null and void.
There is no substantial evidence of any conspiracy between John A. Neville, Florence Champion and Edwin F. Sawicki or any of them, nor is there any evidence of undue influence exerted by Florence Champion upon her father. John A. Neville explained in item V of his will his reasons for the execution of the deed to his daughter. Even if it be assumed that the deed was given as a gift, the transaction was not void.
In Bolles v. Toledo Trust Co., Exr., 144 Ohio St. 195, 58 N.E.2d 381, 157 A. L. R., 1164, this court held:
"A husband may dispose of his personal property during his lifetime without the consent of his wife; but a husband may not bar his widow of her right to a distributive share of any property which he owns and of which he retains the right of disposition and control up to the time of his death."
That principle was later affirmed in the case of Mark v. Mark, 145 Ohio St. 301, 61 N.E.2d 595.
Except for Sections 10502-1 and 10502-6, (General Code, the rule as to personal property, as announced in the Bolles and Mark cases, supra, would apply with equal force to real property.
Section 10502-1, General Code, reads in part as follows:
"A spouse who has not relinquished or been barred of it shall be endowed of an estate for life in one-third of all the real property of which the consort was seized as an estate of inheritance at any time during the marriage, but all such dower interest shall terminate and be barred upon the death of the consort except:
"(a) To the extent that any such real property at any time during the marriage was conveyed by the deceased consort, the surviving spouse not having relinquished or been barred of dower therein * * *."
Section 10502-6, General Code, provides:
"If a husband or wife gives up real property by collusion or fraud, or loses it by default, the widow or widower may recover dower therein."
In the instant case there is no evidence to support the conclusion that John A. Neville gave up the property by collusion or fraud or lost it by default and therefore the last-quoted section has no application here.
It is undisputed that plaintiff did not relinquish her dower or was not barred of it, hence under the provisions of Section 10502-1, General Code, she is entitled to her dower interest in the one-half of the property, owned by her spouse, John A. Neville, during the marriage.
The remaining question is whether the widow is entitled to a lien upon the one-half interest in the property owned by her husband prior to October 2, 1943, for her twelve-months' allowance and for that portion of the estate exempt from administration.
Section 10509-74, General Code, reads in part as follows:
"The appraisers also shall set off and allow to the widow, and children under the age of eighteen years, if any there be * * * sufficient provisions or other property to support them for twelve months from the decedent's death * * *."
Section 10509-54, General Code, reads as follows:
"When a person dies leaving a surviving spouse, or a 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, live stock, grain, feed, hay, tools, implements, automobiles, utensils, wearing apparel of the deceased and relies and heirlooms of the family and of the deceased, ornaments, pictures and books, to be selected by such surviving spouse, or if there be no surviving spouse, then by the guardian or next friend of such minor child or children, not exceeding in value twenty 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 twenty-five hundred dollars, if there be a surviving spouse, nor more than one thousand dollars if there be no surviving spouse, but surviving minor child or children, nor less than five hundred dollars in either case 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, guardian or next friend 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 property, real and personal, belonging to the estate, prior to the claims of all unsecured creditors of the deceased or of the estate." (Emphasis added.)
Section 10509-55, General Code, reads in part as follows:
"If there be a surviving spouse and no minor child or children, then such articles shall belong to the surviving spouse. Such exempted sum of money as is received by a surviving spouse shall belong to such surviving spouse."
The right of a widow to receive support for twelve months after the husband's death is a right granted to a widow, not to a wife. In other words, that right does not come into existence until the death of the husband.
The right to the exemption from administration, as provided by Section 10509-54 et seq., General Code, likewise comes into being only upon the death of a spouse.
Each of these rights, the twelve-months' allowance and the exemption from administration, is a statutory right. The General Assembly granted only expectant interests dependent upon the contingency that the property to which such rights attach becomes a part of the decedent's estate, which contingency does not occur if decedent has sold or given away the property during his lifetime.
In the instant case, the property described in the petition did not become a part of the estate of John A. Neville, hence the right to the twelve-months' allowance and the right of exemption from administration did not attach to or become liens upon such property.
A transfer of property by a husband during his life will operate to deprive his widow of property which the statutes would otherwise have given her at his death, provided such transfer actually divests him of ownership.
Under the facts presented by this record, the Court of Appeals did not err in affirming the judgment of the Court of Common Pleas, and, therefore, the judgment of the Court of Appeals should be and hereby is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, WILLIAMS, TURNER, MATTHIAS and HART, JJ., concur.