Opinion
No. 28738
Decided February 25, 1942.
Executors and administrators — Property exempt from administration — Section 10509-54, General Code — Administrator of surviving spouse entitled to lien upon realty of predeceased spouse — For balance of maximum allowance not selected by surviving spouse in lifetime.
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.
APPEAL from the Court of Appeals of Lorain county.
This action arose in the Probate Court of Lorain county. A petition was filed in that court by the plaintiff as administrator de bonis non with the will annexed of the estate of Bruce McDonald, to sell certain real estate to pay debts of plaintiff's decedent. The defendant, Don J. Young, appellee herein, as administrator of the estate of Ida McDonald, deceased, filed an amended answer and cross-petition alleging that his decedent, Ida McDonald, who was the widow of Bruce McDonald, died intestate on April 12, 1934; that at the time of her death she was the duly appointed and acting administratrix with the will annexed of the estate of her deceased husband, Bruce McDonald; that she, as such administratrix, prior to her death, had filed an inventory and appraisement in her husband's estate, listing in schedule A of such inventory and appraisement, a diamond ring, automobile and household goods appraised at a total of $315; that in schedule C there were listed certain shares of bank and other corporate stock in the total sum of $551; that there was no other personal property belonging to the estate; that there were three tracts of real estate sought to be sold in this action appraised at a total sum of $9,500; and that in the inventory there was an allowance of $1,000 made to Ida McDonald, deceased, for her year's support.
The administrator of Ida McDonald further alleged that his decedent at no time selected any property as and for her statutory exemption of 20 per cent of the total value of all property of the estate as allowed her by law, except the automobile and household goods amounting to $65; that her statutory allowance due her as administratrix upon the personal property was $51.96; that her allowance of 20 per cent on the total value of the estate amounts to $2,073.20, leaving a balance due her estate of $2,060.16, in addition to her year's support of $1,000, which latter sum has been paid to the cross-petitioner as her administrator, leaving the amount due the answering defendant as her administrator the sum of $2,060.16, with interest; that since the death of his decedent he filed a final account for and on behalf of Ida McDonald, as administratrix of her husband's estate, and claimed for her estate the balance due her as allowance out of her deceased husband's estate; that she made no other selection of personal or other property belonging to her husband's estate during her lifetime; and that the balance due his decedent's estate as the widow of Bruce McDonald constitutes a charge and lien upon the estate and upon the real estate described in plaintiff's petition. The administrator asked that this sum be paid him as such administrator out of the proceeds of the sale of the real estate.
To this cross-petition, the plaintiff filed a general demurrer, on the ground that since Ida McDonald did not in her lifetime make any demand for the payment of her statutory allowance she had waived the same. The Probate Court sustained the demurrer except as to the value of certain personal property and administratrix's fees. Judgment was entered accordingly.
An appeal was taken from the Probate Court to the Court of Appeals of Lorain county, which court reversed the judgment of the Probate Court as to the claimed lien of $2,060.16, and remanded the case to that court with directions to make that amount a lien and charge in favor of the administrator of Ida McDonald, against the proceeds of the sale of the real estate. The case is now in this court by reason of the allowance of a motion to certify the record.
Mr. Frank M. Wilcox, for appellant.
Messrs. Young Young, for appellee.
The question presented in this case is whether the administrator of a surviving spouse, by virtue of Section 10509-54, General Code (114 Ohio Laws, 413), 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.
The answer to this question depends upon the construction to be given the section of the statute above named, the pertinent part of which is as follows:
"When a person dies leaving a surviving spouse, * * * 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, 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 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 less than five hundred dollars * * * 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 property, real and personal, belonging to the estate, prior to the claims of all unsecured creditors of the deceased or of the estate."
Unquestionably, the provision made for the benefit of the surviving spouse, could be waived by her, but such waiver must clearly appear. Since by law, she was entitled to a beneficial interest, a presumption arises that it was her intention to claim and accept it. Lessee of Mitchell v. Ryan, 3 Ohio St. 377; Harvey v. Gardner, 41 Ohio St. 642.
The chief question to be here answered is how far or to what extent must the surviving spouse personally select her allowance from the assets of the estate of her spouse in order to avail herself of the allowance provided by the statute. Unless the surviving spouse has barred himself or herself from such allowance by electing to take under a will which precludes or denies it, or by a contract with the deceased spouse whereby it is relinquished or waived, or whereby it has otherwise been waived during the administration of the estate, twenty per cent of the appraised value of the gross estate with a minimum of $500 and not exceeding $2,500 shall not be deemed assets of the estate or administered as such, but shall be distributed to the surviving spouse in manner as follows:
The surviving spouse may select at the appraised value all or any part of the household goods, live stock, tools, implements, utensils, wearing apparel of the deceased, relics and heirlooms of the family and 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.
When Section 10509-54, General Code, became a part of the new Probate Code, effective January 1, 1932, it radically changed the exemptions to a surviving spouse. Before that date, the surviving spouse enjoyed vested dower (Section 8606, General Code) which was exempt as against unsecured creditors, but the new Code took away such vested dower and provided in lieu thereof a distributive share of the net estate after the payment of debts. The history of this legislation indicates that the increased exemption now provided by Section 10509-54, General Code, together with Section 10502-1, General Code, was intended to compensate the surviving spouse for the vested dower which was at the same time taken away. That being true, it is reasonable to suppose that it was the intent of the Legislature to give this allowance not only the character of a distributive share of the estate, but also a preferred status over unsecured creditors.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., TURNER, WILLIAMS, MATTHIAS, ZIMMERMAN and BETTMAN, JJ., concur.