
    RIGHTS OF A WIDOW IN HER HUSBAND’S ESTATE.
    [Common Pleas Court of Greene County.]
    Mary F. Bullock v. W. O. Bullock, Executor.
    Decided, May, 1905.
    
      Estates of Decedents—Advancements—Election of Widow—Indebtedness of Son Evidenced by Note Should be Included in Inventory, When—Land Ordered Sold by Testator and Proceeds Distributed—Distributees Acquire No Title to the Land—Rights of the Widow.
    
    1. The operation of the statute regulating advancements can only apply where the dependent died intestate as to his property.
    2. A testator who at his death holds a note against his son, and in his will directs that in case said note is not paid before his death, such son “shall bo charged with and there shall be taken out of his share” the amount thereof, “said note” is an asset in the hands of his executor, and should be appraised and inventoried.
    3. There is no provision of statute whereby a surviving wife may elect to take under the law.
    
      4. A widow’s rights under the law are not superseded or abrogated by any provision made for her in the will of her deceased consort that required her to elect; they are vested rights which she must elect to waive, and accept other provisions made for her benefit in order to defeat her rights under the law.
    5. A widow who does not elect to take the provisions made for her in the will of her deceased husband is entitled to dower in all the land of which her husband died seized, and is also entitled to participate and receive her distributive share out of the proceeds of all the lands which the will of her deceased husband directed to be sold and converted into money for distribution.
    6. Where land is directed by a will to be sold and the proceeds distributed to certain persons, such persons acquire no title under the will by electing to take the land, nor can any such election be made to defeat the widow’s right to her distributive share out of the proceeds of such land.
   Kyle, J.

This cause comes into this court upon a petition in error from the probate court.

Mary F. Bullock, the plaintiff in error, filed her certain motion in the probate court to require the defendant in error, William 0. Bullock, the duly appointed executor, to proceed to sell the real estate, as provided in item three of his will, and convert the same into money as directed. And at the same time the said plaintiff in error excepted to the inventory of the executor because there was not included therein a certain note of Elias M. Bullock to his father, William IT. Bullock, for fifteen hundred ($1,500) dollars. Such motion and exceptions were overruled.

The court below made a finding of facts—■

“William H. Bullock, resident of Greene county, died December 2, 1904, the owner of real and other estate- mentioned in his will and -situated in said county. He left surviving him his widow, Mary F. Bullock, plaintiff in error, -and six children; that on December 9th his last will was duly probated in the probate court, and W. O. Bullock was appointed executor; that an appraisement and inventory of his estate was made -and filed, which did not contain the note referred to in the motion; that on the 9th day of December a citation was duly issued by the probate court to Mary F. Bullock, widow, and that on the 8th day of February Mary F. Bullock appeared in court and then and there elected, in writing, to take under the law and renounce the provisions made for her in said will.”

The court below, in its conclusions of law, found first, “that said note was intended as an advancement to said Elias M. Bullock, and was rightfully and properly omitted from the appraisement and inventory and should not bo appraised as an asset of said estate.”

If the $1,500 note of Elias M. Bullock was an advancement, then it should not appear upon the appraisement and inventory. If it was not an advancement it was an asset in the hands of the executor to be appraised and inventoried with the other property.

Where a decedent at his death holds a promissory note executed by one of his heirs at law, in order to establish a claim that the money for which such instrument was given was a gift to such heir at Law by way of advancement or otherwise the evidence must be clear and convincing. An advancement is a gift to take effect immediately as the share, or part of the share, of the child in the estate of the father which the child would otherwise receive at his death intestate. It is a gift' absolute to take effect at once.' And, therefore, it was incumbent upon Elias M. Bullock to show that the money, represented by the $1,500 note, was a gift to take effect at once.

The fact that a note was taken whereby Elias agreed and promised to pay the same back to his father implies that it was not an advancement.

Whether or not there was any evidence to show that this note did not represent the .true contract, that instead of being a loan from William 0. Bullock to his son Elias, it was, in fact, an absolute gift to take effect in presenbi does not appear and there is no such finding in the finding of facts.

The fact that .the note appears in the hands of the decedent at his death without any other evidence or finding contravening such note, showing that, in fact, it was an advancement, a court must find that it was not an advancement, but is an asset in the hands of the executor. It is also true that it was not a gift inter vivos because obligations were taken for the money; nor would it be a gift causa mortis for the note was held by the decedent until his death. The foregoing was given to show that such note was not an advancement under the facts shown. But the law is that the operation of the statute regulating advancements can only apply where the decedent died intestate as to his property.

The whole determination as to whether or not such note should or should not be appraised and inventoried depends upon the will.

Item four of the will provides—

“I have given, from time to time, my several children equal amounts of money. My son, Elias M., owes me $1,500 in addition to money heretofore given him for which I hold his note dated October 15, 1901. It is my will that in case he does not pay said note before my death, then, in that case, he shall be charged and there shall be taken out of his share $1,500, with interest from date of said note. ’ ’

There is certainly no cancellation of this note to Elias. It contradicts that it was ever made or intended as a gift to him. It declares his expectation of payment of that note from his son, and provides a manner of payment if it is not paid at the date' of his death; or in eifeet bequeaths it to him as an asset of his estate.

So far as the will is concerned, if the statute regulating advancement applied, it contradicts every notion and principle of an advancement, and such note is, without doubt, an asset in the hands of the executor and should have been appraised and inventoried with the other property of said decedent.

The next question involved may be comprehended in the single question: Is Mary Bullock entitled to participate and receive any share in the land devised under item three beyond her dower interest ?

After making a certain provision for his wife in lieu of her dower, year’s allowance and as her full distributive share of his estate, the testator then proceeds to direct that—

“At my death the land on the south side of the New Jasper road of 115 acres, more or less, to be sold by my executor and! the proceeds and balance of personal estate to be equally divided among my six children, or if any are dead their share is to go to their children, if any, subject to the following conditions and charges and deductions: ”

Mary F. Bullock, the wife, did not elect to take under the will. Stress has been laid upon the fact of the election of the widow to take under the law. I know of no provision of the statute whereby a surviving widow may elect to take under the law. In order to secure the provisions of a will made for her benefit the widow must elect to take under such will. To stand on her rights under the law she does not elect to take under the law, but fails or refuses to make any election. In other words, her rights under the law are not superseded or abrogated by any provisions made for her in the will of her deceased consort that requires her to elect, but they are a vested right which she must elect to waive and accept other provisions made for her benefit in order to defeat her rights under the law.

The widow declined to elect to take under the will, therefore as to her William H. Bullock died intestate. And as the surviving widow of William H. Bullock she is entitled to be endowed of the lands of her deceased consort -and is entitled to one-half (%) of the first $400, and to one-third (1-3) of the remainder of the personal property subject to distribution.

When William II. Bullock made his will he knew that under the law his wife, Mary F. Bullock, might accept siteh provisions as he might make, or might retain her rights under the law, an,d having declined to take under the will she stood in the relation to William II. Bullock’s estate as if he had died intestate, which is exactly the same position the plaintiff stood in in Hutchiiis v. Davis. As to how or why Mary Bullock came to occupy such a position, so long as she was not unlawfully there, it should not impair or affect her rights in the estate .of her deceased .husband.

Mrs. Hutchins was not given an opportunity to make any election. Mrs. Bullock did not elect; and I do not see upon what principle in justice or equity a substantial or nominal provision for any surviving wife, which she did not accept could affect her relation to the estate of her deceased husband. And while stress is laid by counsel upon the fact of no election in the 68th Ohio State, yet the principles, in my judgment, in that ease determine this one.

Since William H. Bullock chose to reduce the 115 acres to money in view of the fact that his wife had a right to refuse to elect to take under the will, and having done so, he must take the consequences even though it may, to some extent, defeat his intention.

As argued in that case it is of no consequence that he intended that his wife should accept the provision that he made for her. By directing this land to be sold he could not defeat her legal rights. By this act he made this land personal property in the hands of his executor for distribution, and the statute gives her one-third of the remainder of the personal property subject to distribution.

Whether or not he reduced his whole estate to personal property would make no difference as the wife would be entitled to receive her share of what was directed to come into the hands of the executor for distribution.

There is no doubt that the real and personal property under item three are to be blended together, for the language is: “Such land shall be sold by my executor and the proceeds and balance’ of personal estate equally divided among my six children,” and this, under the 68th Ohio State, malms an absolute conversion of this land for all purposes into personal property, which should be distributed as personal property even if the special object intended by the testator should fail.

It is claimed that she would be claiming under the will, but applying the principle laid down in the 68th Ohio State: ‘ The effects of a conversion extend to and may be claimed not only by those who claim under or through the will, but also by those who are not entitled directly from and under the testator.” And undoubtedly Mrs. Bullock has the right to claim directly under and from her deceased husband her distributive- share of the funds that may be created in the hands of the executor for distribution. And it has also been determined in the 68th Ohio State that this plaintiff in error is entitled to her distributive share of the proceeds of the sale of this land made as directed in the will notwithstanding that she has already received therefrom her dower estate.

In the dissenting opinion of Judge Shauek the inference may be clearly drawn that it was held by the majority of the court that one may invoke the doctrine of conversion even though they claim against the will which makes the conversion.

The argument thus far has assumed that this land is sold and converted into money and comes into the hands of the executor for distribution. The language of the statute is that the wife is entitled to her distributive share in the personal property subject to distribution. If this property should never come into the hands of the executor, by the legatees under the will electing to take the land in lieu of the proceeds thereof, in such case would the surviving widow be entitled to participate? It has been settled that the legatees under a-will, by all uniting in the request therefor, may avoid the sale and keep the premises instead. There is no finding of any such election in this ease and probably it is not necessary to discuss it. But assuming that such question might arise the law is that where a will directs certain real estate to be sold and the proceeds equally divided among certain persons, such persons electing to take the land acquire no title- to the real estate under the will, but such persons would acquire as of the right to personal property. The right to take the real estate in lieu of the proceeds could only be- done by the persons who are entitled to receive the proceeds. And the direction by William Bullock to sell this farm and blend the proceeds with his personal property into one fund for distribution according to the purposes of his will makes an absolute conversion of such land for all purposes into personal property, which should be distributed as personal property.

If the proceeds of this land is to be distributed as personal property, Mary F. Bullock, as the surviving widow, independent of her dowry, would be entitled to receive one-third of the proceeds thereof, and this would be true regardless of the fact that the objects intended by the testator should fail.

M. J. Hartley, for plaintiff in error.

M. A. Broadstone and T. L. Magruder, for defendants in error.

The foregoing seems to be the logical conclusions of the principles and doctrines laid down in the 68th O. S.

The only other question remaining, that has entered into my mind, is as to whether or not it is the proper procedure to file a motion in the probate court asking the court to require the executor to proceed to convert this land into money under the third item of the will, under Section 524, which provides and gives the probate court exclusive jurisdiction “to direct and control the conduct and settle the accounts of executors, administrators,” etc. Or should those interested make an application for the removal of such executor for neglect of duty under Section 6017.

But as the probate court has assumed that it'has such power it will not be controverted here by this court.

For the foregoing reasons, that the exception of the inventory should have been sustained and said note entered upon the inventory and appraisement, and that Mary F. Bullock is entitled to receive one-third of the proceeds of the real estate directed to be converted into money in addition to her dower interest, the proceedings of the probate court will be reversed and this cause remanded to such court for further proceedings.  