Miller v. Miller

Full title: MILLER, ET AL. v. MILLER, ADMR., ET AL

Court: Supreme Court of Ohio

Date published: Feb 27, 1935

129 Ohio St. 230 (Ohio 1935)

194 N.E. 450

Opinion

No. 24785

Decided February 27, 1935.

Wills — Surviving spouse died within time limit for election — Conclusive presumption equivalent to actual election to take under descent and distribution statute — Surviving spouse takes not exceeding one-half of estate — Sections 10504-55 and 10504-60, General Code — Surviving spouse not actually placed within operation of descent and distribution statute — Upon intestacy of surviving spouse, estate passes under descent and distribution statute — Sections 10503-4 and 10503-5, General Code.

1. When a surviving spouse dies within the time limit for election to take under his or her deceased consort's will or under the statute of descent and distribution, without having made any election whatsoever, the conclusive presumption provided in Section 10504-60, General Code, is equivalent to an actual election to take under the statute of descent and distribution, and Section 10504-55, General Code, applies to ascertain the limit of the share of the estate to which the surviving spouse may be entitled.

2. The phrase "under the statute of descent and distribution", as used in Sections 10504-55 and 10504-60, General Code, does not mean that the surviving spouse is actually placed within the operation of the statute of descent and distribution (Section 10503-4, General Code), but such phrase is used as merely definitive or descriptive of the share to be taken by the surviving spouse within a limitation of not to exceed one-half of the estate.

3. The actual taking of a share of such estate by such surviving spouse is under Sections 10504-55 and 10504-60, General Code; Section 10503-5, General Code, relating to the "descent" of an estate which came from a deceased spouse, has no application. Therefore, upon the death of the surviving spouse intestate, his or her whole estate passes under Section 10503-4, General Code, pertaining to descent and distribution.

ERROR to the Court of Appeals of Hamilton county.

A consideration of the estates of two decedents is involved in this case. On April 29, 1932, Harry B. Miller died testate without issue or surviving parent. Under the terms of his will Clara J. Miller, his widow, was given a life estate in all his property with power to use so much of the corpus or principal as might be necessary for her comfort and support, the remainder at her death to go to certain named beneficiaries. She died on May 4, 1932, also without issue, and without having made an election to take under the will of her deceased husband or under the law. Clara J. Miller left a will, but since it gave all her property to her husband, Harry B. Miller, who pre-deceased her, a lapse thereby occurred, so in effect she died intestate.

The appraisers of the estate of Harry B. Miller set off to Clara J. Miller a year's allowance in the sum of $1,200 under Section 10509-74 et seq., General Code. The administrator with the will annexed of the estate of Harry B. Miller being in doubt as to how the remainder of such estate should be distributed under the will, brought an action in the Court of Common Pleas of Hamilton county asking the direction of the court in this respect. That court decided that Clara J. Miller, having died five days after her husband, and having made no election to take under his will or under the law, Section 10504-60, General Code, applied, and she is conclusively presumed to have elected to take under the law; that the word "election" as used in Section 10504-60, General Code, has the same meaning as in Section 10504-55, General Code, and that consequently the effect of the presumed election was to pass to the widow not to exceed one-half of the estate as provided in Section 10504-55 rather than the entire estate as upon intestate descent under Section 10503-4, General Code; that Section 10509-54, General Code, should also be applied, and that in the particular case before the court the widow had a preferred claim to the extent of 20 per cent. of her husband's gross estate, not exceeding $2,500.

A decree was entered by the court allowing the estate of Clara J. Miller the sum of $2,500 under Section 10509-54, and $5,003.61 under Section 10504-55, the latter sum representing one-half of the net estate of Harry B. Miller. The remaining one-half of the net estate was ordered distributed to the beneficiaries named in the will in the ratio that each share bore to the entire estate. This decree was accepted as final by all the interested parties, and no proceedings for review were instituted.

It will therefore be noted that coming to the estate of Clara J. Miller from that of Harry B. Miller were the following amounts: $1,200 year's allowance; $2,500 under Section 10509-54, and $5,003.61 by virtue of the provisions of Section 10504-55.

It next appears that the administrator with the will annexed of the estate of Clara J. Miller was uncertain as to how her estate should be distributed, so he filed a petition in the Court of Common Pleas of Hamilton county asking the court's direction in such distribution.

The item of $5,003.61 is the only one in controversy. It is conceded that the year's allowance of $1,200 and the $2,500 awarded under Section 10509-54, constituted a debt and preferred claim against the estate of Harry B. Miller in favor of Clara J. Miller, which became a part of the latter's general estate to be distributed to her next of kin without any question.

Harry B. Miller's next of kin are three brothers and one sister. Clara J. Miller's next of kin are four nephews and two nieces, the children of a deceased brother.

In determining the distribution of the estate of Clara J. Miller the Court of Common Pleas found that the $5,003.61 came to her under Section 10504-55, General Code, and as such is a part of her general estate, and that no portion thereof should go to the next of kin of Harry B. Miller, deceased. It was therefore ordered "that John O. Miller, administrator with the will annexed of the estate of Clara J. Miller, deceased, pay to the next of kin of Clara J. Miller, deceased, share and share alike, the balance in his hands as such administrator, less the costs of this case."

Error proceedings were prosecuted to the Court of Appeals by the next of kin of Harry B. Miller, where the judgment of the Court of Common Pleas was affirmed. The case is in the Supreme Court through allowance of the motion to certify the record.

Mr. William. R. Collins, for plaintiffs in error.

Messrs. Foulk Solomon, for defendants in error.

ZIMMERMAN, J.

This case arises under the relatively new Probate Code, and the decisions rendered under the old statutes, now repealed, are helpful only in-so-far as their reasoning may still be adopted in construing the new laws.

The statement of the case is indicative of the question to be decided by this court. Contention is made by the next of kin of Harry B. Miller, deceased, that the distribution of the estate of Clara J. Miller approved and ordered by the lower courts is erroneous because of their failure properly to apply Section 10503-4, General Code, pertaining to descent and distribution, and Section 10503-5, General Code, immediately following, sometimes called the "half and half" section. So much of Section 10503-4 as is here applicable, provides:

"When a person dies intestate having title or right to any personal property, or to any real estate or inheritance in this state, such personal property shall be distributed, and such real estate or inheritance shall descend and pass in parcenary, except as otherwise provided by law, in the following course: * * *

"4. If there be no children, or their lineal descendants, three-fourths to the surviving spouse and one-fourth to the parents of the intestate equally, or to the surviving parents; if there be no parents, then the whole to the surviving spouse." (Italics ours.)

Section 10503-5, General Code, reads as follows:

"When the relict of a deceased husband or wife dies intestate and without issue, possessed of any real estate or personal property which came to such relict from any deceased spouse, by deed of gift, devise, bequest or descent, then such estate, real and personal, except for the intestate share of the surviving spouse, if any, 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 the next of kin of deceased children. If there are no children or next of kin of deceased children, then such estate, real and personal, except for the intestate share of the surviving spouse, if any, of such relict, shall pass and descend one-half to the brothers and sisters of such relict, or the next of kin of deceased brothers and sisters, and one-half to the brothers and sisters of the deceased spouse from whom such real estate or personal property came, or the next of kin of deceased brothers and sisters." (Italics ours.)

Plaintiffs in error assert with much earnestness that the sum of $5,003.61 came from the estate of Harry B. Miller to that of Clara J. Miller by "descent" within the purview of Section 10503-5, as limited by Sections 10504-55 and 10504-60, General Code, and hence should be distributed one-half to the next of kin of Clara J. Miller and one-half to the next of kin of Harry B. Miller.

It now becomes appropriate to inquire as to the manner in which the sum in controversy reached the estate of Clara J. Miller. She having died five days after her husband, without electing to take under his will or under the law, the situation presented comes clearly within that part of Section 10504-60, General Code, which says, "If the surviving spouse dies within the time limit for election without having elected, then such spouse, whether or not a citation has been issued, shall be presumed conclusively to elect to take under the statute of descent and distribution." (Italics ours.) This conclusive presumption is tantamount to an actual election, so it is necessary to revert to Section 10504-55, General Code, to ascertain what portion of the estate the surviving spouse may be entitled to upon rejection of the will. That section states:

"* * * the probate court * * * 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 estate * * *." (Italics ours.)

The next question presenting itself is the true meaning of the phrase "under the statute of descent and distribution" as used in Sections 10504-60 and 10504-55. Does it mean that the surviving spouse is literally placed within the operation of that statute (Section 10503-4) to a restricted degree, or was it the legislative intent and purpose to use such phrase as merely definitive of the quantity of the share to be taken by the surviving spouse within a limitation of "not to exceed one-half of the estate"?

Under the existing laws of Ohio, dating from January 1, 1932, no distinction is drawn between ancestral and non-ancestral property, and Section 10503-4, General Code, is now the principal statute controlling, in a majority of instances, the distribution and descent of an intestate's estate, no matter how acquired. By its terms this section is limited to the distribution and descent of property when its owner dies intestate. Sections 10504-55 and 10504-60, General Code, are concerned with the property of an owner who dies testate. They give the relict of a testate property owner the right to reject his or her will and to take a share of his or her property which may often be less than if the owner had died intestate and the taking was clearly under the statute of descent and distribution. The argument is therefore persuasive that the phrase "under the statute of descent and distribution" appearing in the last mentioned sections is not there used in such sense as to place the relict directly under the operation of Section 10503-4, General Code, but rather in the sense that such section shall be used as a measuring stick to determine the amount of the estate which shall be taken, within an absolute limitation of not more than one-half as prescribed by Section 10504-55.

Let us pursue the thought further. If Harry B. Miller had died intestate, Clara J. Miller, as his widow, would then have succeeded to his entire estate under subdivision 4, of Section 10503-4, there being no children, or their lineal descendants, and no surviving parent. She dying intestate, Section 10503-5 would apply, and the property which she received from the estate of her husband having come by "descent", would go one-half to her next of kin and one-half to the next of kin of Harry B. Miller. But the real facts of this case are quite different. The property which Clara J. Miller received from the estate of her husband did not come to her by reason of his intestacy, but because he left a will, the provisions of which she was conclusively presumed to have rejected. This conclusive presumption amounting to actual rejection, Section 10504-55 asserts itself, whereby one-half of the estate was all she could or did receive. We therefore have one and the same person who would have received the whole estate had its owner died intestate, but who in reality received only one-half of it because the owner died testate and his will was rejected.

The word "descent", as ordinarily used, denotes the manner whereby one person upon the death of another acquires the real property of the latter as his heir-at-law. The word retains much of this meaning in Section 10503-5. If Clara J. Miller had taken the estate of Harry B. Miller strictly in the capacity of heir-at-law, all of it would have been hers through the statute of descent and distribution. But she actually took one-half of it by the operation of another and independent statute. We cannot reconcile ourselves to the idea that it was the legislative purpose so to join Sections 10504-55 and 10503-4, that when property is taken under the former, the recipient is placed directly under the latter and acquires the property by "descent" within the intent and meaning of that word.

It is our conclusion that Clara J. Miller did not take any part of the estate of Harry B. Miller within the provisions of Section 10503-4 or by "descent" under Section 10503-5. The lower courts reached the correct result, and the judgment of the Court of Appeals is in consequence affirmed.

Judgment affirmed.

WEYGANDT, C.J., STEPHENSON, JONES, MATTHIAS and DAY, JJ., concur.