
    In re Estate of Green, Deceased.
    
      (No. 19794
    Decided June 10, 1980.)
    Court of Common Pleas of Erie County, Probate Division.
    
      Mr. John D. Frankel, for applicant.
    
      Mr. John A. Pfefferle, for respondent.
   Kaufman, J.

This cause came on for hearing on an application filed by Thomas A. Green, executor of the estate of Carl A. Green, Jr., hereinafter known as applicant, requesting the court to interpret the rights of Mary Green, the surviving spouse of decedent under R. C. 2107.39 and 2117.20.

The will of decedent was admitted to probate on August 29,1979, and by the terms thereof left all of decedent’s assets to decedent’s children and grandchildren by a prior marriage. The surviving spouse, Mary E. Green, respondent, elected to take under R. C. 2105.06 against the will pursuant to R. C. 2107.39.

The issues before this court arising from the facts involved in this estate are:

1. Is a wife who takes against a will entitled to an automobile under R. C. 2113.532?;

2. If the wife is entitled to an automobile under R. C. 2113.532 should its value be included as a part of the estate in determining the wife’s one-third share of the net estate as established by R. C. 2107.39?;

3. Is a wife who takes against a will entitled to the $5,000 widow’s allowance under R. C. 2117.20?;

4. Is the $5,000 widow’s allowance to be included in the estate in determining her one-third share under R. C. 2107.39 and should the widow’s allowance be set off against her share?

Counsel for the executor submitted a memorandum supporting the position of the heirs under the will claiming that the value of the automobile and the widow’s allowance should be included if granted or allowed in the total net estate and should be set off against the respondent-surviving spouse’s one-third share.

Counsel for the surviving spouse-respondent submitted a memorandum in support of said respondent’s position alleging that the respondent is entitled to the automobile, the $5,000 widow’s allowance, and one-third of the remainder of the net estate.

There being no issues of fact in contention, the court is ruling on the issues of law on the basis of the memoranda submitted by the respective parties without any testimony and by consent of said respective parties.

The court finds in reviewing the first two issues relating to the automobile that the surviving spouse-respondent is entitled to an automobile under R. C. 2113.532 and that the value of said automobile is not to be considered a part of the net estate of decedent and set off against the surviving spouse’s share when taking against the will.

R. C. 2113.532 (A), effective January 13,1978, states: “A surviving spouse is entitled to receive one automobile from the estate of a deceased spouse if owned by the deceased spouse at the time of death and not otherwise specifically disposed of by testamentary disposition. The automobile shall not be considered an estate asset but shall be included and stated in the estate inventory.***”

Applicant sets forth the argument that the testator specifically excluded respondent, surviving spouse, from the will and bequeathed all of the personal property of decedent to his surviving children and grandchildren under the terms of Item II and Item IV of testator’s will. Item II of testator’s will however was a general residuary clause leaving all property of every kind and description whether real or personal to decedent’s children in equal shares, share and share alike. Item IV made provision for decedent’s childrens’ share in the event said children should have predeceased decedent to go to said childrens’ living lineal descendants. No specific bequest of the automobile was made in the will.

The Court of Appeals for Franklin County in In re Estate of Witteman (1968), 15 Ohio App. 2d 126, held that the legislature’s use of the word “specifically” or “not specifically” in a statute was a qualifying factor in interpreting the statute in question in that case.

It is clear from a reading of R. C. 2113.532 that the legislature intended for the surviving spouse to be entitled to receive one automobile from the estate of a deceased spouse at the time of death if this automobile was not otherwise specifically disposed of by testamentary disposition.

The legislature in amending this provision of the Revised Code effective January 13,1978, intended to only restrict the surviving spouse’s right to the automobile where the automobile was specifically disposed of by a bequest in decedent’s will. The former version of this statute stated that a surviving spouse was entitled to receive one automobile from the estate of a deceased spouse if owned by the decedent’s spouse at the time of death and not otherwise disposed of by testamentary disposition. The word “specifically” did not appear in that wording but was in fact the only addition made to that statute when amended in 1978.

It is therefore quite clear that the surviving spouse-respondent is entitled to the automobile of testator under R. C. 2113.532.

R. C. 2113.532 states that the automobile shall not be considered an estate asset. The wording of this statute is very clear and specific and therefore the value of the automobile cannot be included in the net estate in determining surviving spouse-respondent’s one-third interest in the net estate.

In this case the surviving spouse-respondent is entitled to the $5,000 allowance under R. C. 2117.20 since none of the children are minors. There are no terms in the will specifically referring to a bar to the surviving spouse-respondent receiving the allowance under this section. It was held in the case of Jacobsen v. Cleveland Trust Co. (1965), 6 Ohio Misc. 173, that unless barred by an ante-nuptial agreement or the will expressly directs otherwise, as required by R. C. 2107.42, a widow is entitled to her year’s allowance.

It was further held in Citizens National Bank v. Linn (1941), 22 O.O. 195, that the term “net estate,” as used in R. C. 2107.39, means so much of the testator’s property as remains for distribution after payment of the surviving spouse’s statutory allowance, his debts, funeral expenses and expenses of administration. Therefore, it is the order of this court that the surviving spouse Mary Green shall be entitled to an automobile under R. C. 2113.532, a $5,000 survivor’s allowance under R. C. 2117.20 and one-third of the remaining net estate after payment of the statutory allowances, other debts, funeral expenses and expenses of administration. Costs of this action and application to be paid by decedent’s estate.

Judgment accordingly.  