
    CONTRACTS FOR RELINQUISHMENT OF DOWER.
    Common Pleas Court of Montgomery County.
    In Re Estate of William S. Mowry, Deceased.
    Decided May 16, 1927.
    
      Dower — Right to Not Lost Because Not Assigned — Validity of An Agreement to Relinquish — Death of Widow After Computation But Before Payment of Dower.
    
    The widow of M elected not to take under his will, and an advantageous offer having been made for the realty, she entered into a written agreement with the executor of the estate for release her dower interest, which upon computation was to be paid to her out of the proceeds of the sale. The sale was made and dower computed, but before it was paid the widow died. Her administrators claimed payment should be made to them, which was refused by the executor of the husband’s estate, whereupon an application was made to the probate court for an order so directing.
    
      Held: That the right of dower was not lost through failure to obtain an assignment thereof under Section 12005, but having become consúmate it was an interest in land which could be released and the executor had authority under the will of M to make the agreement and holds the proceeds of the dower interest subject to order of the administrators of the widow.
    
      J. A. Kerr, and Lindsey & Berry, for appellant.
    
      Chas. W. Folkerth, for appellee.
   Snediker, J.

This case is before this court on appeal from the judgment of the Probate court, and .was submitted on the original papers and the record in the court below including a copy of agreement of date August 22, 1921, entered into between Laura J. Mowry and Lee S. Morrow, executor of the estate of William S. Mowry, deceased.

William S. Mowry who was a former resident of Butler township this county, died on January 17, 1921, testate. His will was probated by the Probate Court of this county; and as requested by the decedent Lee S. Morrow of Piqua, Miami county, Ohio, was appointed his executor. Among the provisions of his will were the following:

“Item 2. I give and bequeath to my wife, Laura J. Mowry, should she survive me, the full one third of my estate for her full use, care and benefit for and during her natural life only. On her decease the proceeds thus set aside for her to pass to and vest in my children hereinafter named in equal shares to each.”
“Item 3. I direct my executor hereinafter named to reduce my estate to money, in case of the real estate he will proceed to sell and dispose of the same to best advantage, for cash or on terms properly secured, and without an order of court execute a proper deed or deeds therefor, with full powers in all respects. . 'Having reduced all matters to money he will distribute the same as follows:

To my said wife the full one third, to be placed in the hands of a trustee (as hereinfater set out). The residue of proceeds after payment of all costs and proper expenses to the following children.

To Eva Morrow of Miami county, one share.

To Harley Mowry of Piqua, O., one share.

To Mirta Mowry of Miami Co., one share.

To Arthur Mowry of Miami Co., O., one share.

To Clara J. Mowry of Montgomery County, O., one share. Being equal shares to each.

Item 4. I direct the Probate Court to appoint a suitable judicious person as trustee for my wife, Laura J. Mowry,. she being incapable of attending to business matters, said trustee will carefully invest the one third share to and in my estate and care for and provide from the income thereof, for my said wife during her natural life.”

After the appointment of the executor the properties belonging to the estate were appraised, and as shown by that appraisal the assets consisted of—

Personal property . $1,282.90

Bank bills and specie 27.74

Real estate, 83 acres more or less 12,500.00

Upon citation Laura J. Mowry, relict of the decedent, did on June 2, 1921, elect not to take and accept of the provision made for her under the last will and testament of her husband in lieu of her dower interest and distributive share of the personal estate of the said William S. Mowry, deceased. By this election she was relegated to such interest in her husband’s estate as is provided by the law of Ohio, and therefore upon the death of her husband was seized of a dower interest in all his real estate. Subsequently an offer of purchase of the farm was made by one Harry Hoskett for the sum of $14,000 — $4,-000 cash and the balance at the end of one year. Laura J. Mowry then surviving, still was the owner of her dower interest in the farm. In order to convey an unincumbered title to this purchaser who was and whose price was acceptable to the executor, it became necessary to have a release of such dower interest by Laura J. Mowry, in contemplation of which the following agreement was entered into by and between the executor and her:

“To all whom it may concern:

This writing made this 22d day of August, 1921, certifies, that the undersigned as widow of William Mowry late of Montgomery county, Ohio, deceased, having elected to take under the statute and not under his last will, and there being certain real estate to be disposed of in the settlement of said decedent’s estate, which has already, been contracted for sale, with the full knowledge and consent of the undersigned and the said estate already has arranged for the payment to the undersigned of the year’s allowance of $600 from the personal estate of decedent,

Now therefore the undersigned for the purpose of completing the sale of the real estate, being 83% acres in Butler Township, Montgomery county, Ohio, hereby agrees and obligates herself to execute a deed of release for her dower interest to and in said farm (the homestead place) to the purchaser when requested so to do, without let or hindrance thereto on her behalf, upon the computation on her behalf of her dower interest to and in said real estate .under the Carlisle tables embodied in the statutes of Ohio, and the proceeds of said computation to be paid to Her in money, and therefore hereby waives the assignment of dower on her behalf by metes and bounds. Stating her age at 67 years. Waiving all or any error or exception, the executor of said decedent, Lee S. Morrow, to hold this agreement and carry out the same by procuring her the payment of said dower interest in money, on completion of said sale, and at the time he executes his executor’s deed for said lands. The undersigned hereby voluntarily executes this agreement being fully satisfied in all respects.”

We designate this as the agreement between the executor and Laura J. Mowry, for the reason that after its execution and in pursuance of it the executor did sell the real estate and Laura J. Mowry did sign a release of her dower interest. Thereupon an executor’s deed was made to Harry Hoskett, and he took immediate possession of the farm; took control of the tenant then occupying it; received half of the crops, and became the actual owner' on March 21, 1921.

Laura J. Mowry died September 24, 1921; not having been paid the amount of her dower interest prior to her death. Computed as shown in this record, it Woúld amount to $1,904.83. The executor refusing and still refusing to pay this amount, and after the death of Laura J. Mowry, administrators having been appointed of her estate, an application was filed in the Probate Court, on December 17, 1925, in the estate of William Mowry; reciting the foregoing facts, and asking that Lee S. Morrow as executor be notified to appear before the court to show cause why he should not pay to these applicants as administrators of the estate of their mother, Laura J. Mowry, the sum of $1,904.83, representing the value of her dower in money in her deceased husband’s farm.

Upon the filing of this application in the court below, a citation was issued for Morrow, and subsequently, on February 6, 1926, a demurrer was filed to the application on two grounds:

First. That the complainants and administrators of the estate of Laura J. Mowry have no capacity to sue in this matter.

Second. That the complaint does not state sufficient facts to constitute a cause of action in favor of the complainants and against the defendant, or to award the relief sought.”

This demurrer no doubt was filed on the theory that the application was. an intervening petition. Upon consideration of the application the court below made an order that Lee S. Morrow as executor of the will of William S. Mowry, deceased, pay to Elza Mowry and Rodney A. Mowry as administrators of the estate of Laura Mowry, deceased, the sum of $i,904.83, with interest from the 15th day of January, 1922, at six per cent per annum, and file a final account in the estate of William Mowry, deceased, within two weeks from the date of the filing of the order and in said account make distribution to the administrators of Laura Mowry, deceased, as ordered by this court in its finding, by paying to them the sum ordered to be paid which the court found to be the value of her dower interest. Notice was given of the intention to appeal to this court which appeal is now before us.

The position taken by counsel for the executor is that since no dower has ever been assigned under Sections 12004 and 12005, of the General Code, all right of the heirs in the estate of her husband as to dower has been lost, and the same cannot now be maintained. That the most that can be claimed is an interest in the rents and profits from July 29, to September 18 of the same year; and further that no notice was given to the heirs relative to the agreement of August 22, 1921, and further that there was no authority in the executor to make the agreement as to dower with the widow of the decedent which was incorporated in the agreement of August 22, 1921, and which was accepted by the executor in his subsequent proceedings.

As to the first point, we must keep before us the fact that upon the death of her husband, Laura J. Mowry’s right to dower became consummate; and that on August 22, 1921, it had neither been relinquished nor barred. Being consummate, without assignment to her it was an interest in and concerning the land. As stated in the case of Stolz v. Boltz, 5th Weekly Law Bulletin, page 410:

“This unassigned dower interest is variously termed in the authorities a Vested interest,’ ‘a right, or interest in land,’ ‘a legal interest in land,’ ‘a substantial right, possessing in contemplation of law the attributes of property, and to be estimated and valued as such,’ ‘as a thing oi chose in action,’ ‘as a right paramount to all subsequent titles derived through the husband.’ ”

The law as stated by the Supreme Court in the 14 Ohio Reports at page 518-521, is:

“It cannot be transferred to a third person, yet it may be relinquished,”

This is what we understand Laura J. Mowry to have agreed to do by the instrument of August 22, 1921, and which she did subsequently do. There was not a conveyance of her dower estate by metes and-bounds, because it had never been assigned and set off in that way. Her contract therefore, was not to so convey, but as stated “to execute a deed of release for her dower interest to and in said farm.” For this purpose no assignment of dower is necessary.

Did the executor have the right to accept and act upon the instrument of August 22, 1921?

In order to determine this it will be necessary for us to consult the power vested in him after his appointment under the will of William Mowry as contained in Item 3, thereof which reads as follows:

“In case of the real estate he will proceed to sell and dispose of the same to the best advantage for cash or on terms properly secured, and without an order of court execute a proper deed or deeds therefor, with full powers in all respects.”

What would be “a disposition of the real estate to the best advantage”? The offer made by the purchaser was more than the appraised value of the property, • and was no doubt made in contemplation of the purchaser securing to himself a deed therefor, free of all encumbrances. It has been recognized as the law, even from the days of Coke, that dower is an encumbrance upon real estate; a cloud upon the title, and if it is removed, is worth something. When consummate, its value can be computed, and' is computed by methods recognized by law. When so ascertained, that value is the fair exchange which should be made for a release or relinquishment of dower, and a contract may be entered into with the dower tenant for such relinquishment for the reason that he is entitled to be fully paid on the basis of such computation. This executor having full power under the will to make a contract for the sale of the real estate to the best advantage, did contract for something vital, necessary and valuable to his sale when he accepted the offer of August 22, 1921; and in doing so did act to the best advantage for his trust for the reason that, unless a voluntary conveyance were made by the dower tenant, the executor would be compelled to contract for it if he desired to interest a purchaser who would pay the full value of the real estate. With the relinquishment of the dower the property brought its market price and more than the appraisal. Without that relinquishment it doubtless would not have been marketable at all, or if it had been, only at a much lower price. A purchaser would have been entitfed to a deduction from the purchase price of the amount of the value of the widow’s dower. 1st Bland, 486 (Maryland Chancery Reports) .

So that' in our opinion this executor had the authority to accept the proposition of August 22, 1921, and when he did so and secured the relinquishment of the dower interest of Laura ‘J. Mowry, he became obligated to pay her the amount therein specified for that dower interest.

The indebtedness arising from this executed contract was to the widow, and on her death its collection falls on her administrators who are these applicants.

Our opinion is, therefore, that the court below was justified in the conclusion at which he arrived, and an entry may be drawn for filing in this court to the same 'effect.  