
    Allen v. Tressenrider et al.
    
      Widow elects whether to accept dower of lands — Or provisions of husband’s will in lieu thereof — Property specifically devised to be taken for payment of testator’s debts — Widow should be advised of result of election — Section 5968, Revised Statutes — If widow takes in lieu of dower, must contribute to debts of testator — Section 5978, Revised Statutes.
    
    1. When, a widow is cited to appear in the probate court and elect whether she will be endowed of the lands of her deceased husband or accept the provisions of his will in lieu thereof, and it appears that property specifically devised must be taken for the payment of the testator’s debts, she is entitled, by favor of section 5963, Revised Statutes, to be judicially advised whether, if she accepts the provisions of the will, she will be obliged to contribute her proportion of the loss to the person from whom the property so devised is taken.
    2. If, in such case, she elects to accept the devise in lieu of dower, the obligation to contribute is imposed upon her by the comprehensive terms of section 5973, Revised Statutes: “When any estate, real or personal, that is devised shall be taken from the devisee for the payment of the debts of the testator, all other devisees and legatees shall contribute their respective proportions of the loss to the person from whom such estate is taken.”
    (No. 9166
    Decided February 28, 1905.)
    Error to the Circuit Court of Franklin county.
    The plaintiff, Annie J. Allen, filed a petition in the court of common pleas praying for a construction of the will of her late husband, Boutelle E. Allen, joining as defendants the executor thereof and the devisees and legatees therein named, the judgment here to be reviewed as rendered in said cause by the circuit court on appeal. From the petition and the undisputed evidence in the case it appears that Boutelle E. Allen died testate, that his will had been admitted to probate in Franklin county, that the plaintiff had been cited by the probate court to ap'pear therein and elect whether she would take under the provisions of the will or be endowed of the lands of her deceased husband and take her distributive share of his personal estate as required by law and the time within which she was required by law to make her election had not expired. In the will the testator had devised and bequeathed to her in fee simple the homestead in which they lived together with all the testator’s household effects except certain enumerated articles and also gave to her until the settlement of the estate should be completed the sum of $75.00 per month. It also appears from the will that other parcels of real estate were by the testator devised to other devisees named as defendants. It also appears that the testator, while directing the payment of his debts generally, made a special provision for that purpose which proved to be inadequate, making it necessary to sell some of the real estate devised specifically by the will. Upon this state of facts and with a view to enabling her to determine whether she should accept the provisions of the will or be endowed with the testator’s lands and take her distributive share of his personal estate she prayed for a judicial construction of the will and especially that the court should inform her whether “if she should elect to take under the provisions of said will and the executor of said estate should be required to sell any part of the real estate specifically devised, would the plaintiff be required to contribute with the other devisees and legatees to such devisee or devisees from whom such lands should be taken as to make the loss fall equally upon all devisees and legatees according to the value of the property so taken to pay debts.”
    The circuit court construing the will and the pertinent provisions of the statute adjudged that in case of her election to accept under the provisions of the will she would be charged with the obligation to contribute.
    
      Messrs. Kmhead, Merwine & Schumacher, attorneys for plaintiff in error.
    It is a well-known rule that, in considering and determining the meaning of statutes which embody common law doctrines, we may look to the common law, compare it with the provisions of the statute, and ascertain whether or not it was the intention to incorporate into the statute the common law rules.
    It has always been a rule in the practice in the courts of chancery in England, without any statute in aid thereof, that whenever any provision is made in a will for a widow, and provision is also made for other devisees and legatees in the same will, and .there are not sufficient assets to pay all in full, the widow, by reason of the fact that she is the widow, and by electing to take under the will she yields an absolute right and is therefore entitled to receive her devise or legacy in full.
    The same principle applies when it is necessary to take property specifically devised, to pay debts of the testator. In such case the widow has the right to hold the devise to herself, free from the payment of debts, and is not compelled to contribute to the losses sustained by another devisee whose “specific devise” is taken to pay debts. Davenhill v. Fletcher, 1 Ambl., 245.
    
      The statute as to contribution is in the nature of a limitation upon the power of a testator to dispose of his property by will. The effect of the statute is to prescribe a different mode of disposition and adjustment of his property among the beneficiaries named by him, than is prescribed by the will itself. Without the statute, if the property specifically devised to one is taken for the payment of debts, such person must alone sustain such loss. This would be the usual course under the English law without such statutes.
    Eeason and justice, and the principles of the common law, in the absence of any statute at all, places the widow in a different category from all other beneficiaries of a testator. As is well known, the rights which she, as a widow, has, are absolute and cannot be taken away, no matter what a testator provides in his will.
    The doctrine of “average” of legacies for want of assets, and the doctrine of contribution between devisees for the payment of debts insofar as it applies to a widow, are the same.
    In the light of the common law (or more appropriately, chancery law), as to the rights of a widow, it would seem that the provisions off section 5973 were such as to require devisees, other than widow devisees, to contribute for the payment of debts, and that section 5973 cannot be held to apply to a widow, for whom provision is made in a will in lieu of dower, because of the fact that another rule steps in and determines her rights independently of any statute that does not in strict terms provide that she shall be compelled to contribute the same as any other devisee. But even a statute that would so provide could hardly he considered valid in view of the doctrines of equity governing her rights as widow.
    The proposition which we desire earnestly to urge upon the court is, that when the testator made provision for his widow in his will, which was to he in lieu of dower, that in looking to such provision in the will, and construing the will and its terms insofar as it changes her rights from those which she had under the law, it must be held, that the devise which was made to her was to be paid to her in full without regard to the other devises, and without regard to the question of the payment of the debts, unless it should become necessary to take any part of that devise to her to pay them.
    We may compare provisions of statutes in different states, and constructions thereof by courts of such states, in order to arrive at a construction of the statutes of a particular state. But the inferential argument of opposing counsel for the classification of statutory enactments with reference to this subject, is certainly not well taken.
    We are to determine this question by looking to our own statutes alone, and by applying to the will the common law doctrines which we have shown, and which we will hereafter show, have been adopted in some of the states of this country. Because the states of Connecticut and Rhode. Island have provided in their statutes with reference to contribution that “all the other devisees, legatees and heirs, excepting the widow when the devise or bequest is made in lieu of dower, shall contribute,” etc., is no reason why we should conclude in Ohio, that because this exception is not contained in our statute, that it was not intended to exempt the widow from contribution. On tbe contrary, we contend, inasmuch as there is no statute in Ohio which, in terms, applies to a widow to whom a devise is made in lieu of dower, that we are to determine what her rights are, by looking to the will and the common law.
    Counsel on the other side have found no cases in America supporting their contention; hence they were driven to-this illogical course of argument by inference from other statutes, which shows how they overlooked the historical development of this question.
    We furnish the court the following American authorities, viz.: Lord v. Lord, 23 Conn., 327; Stuart v. Carson, 1 Desaus. Eq., 500.
    The strongest reason that may be urged in favor of a construction of the will in this case, that the widow should not be required to contribute to the son and daughter, in case any of all specific devise to them should be taken by the executor to pay debts, is the following:
    The reason and principle involved in the construction is, that'the relinquishment of a dower right furnishes a valuable consideration of the bequest or legacy in the will. The son and his family, and the daughter, at the time of the making of. the will in controversy had no claim upon the testator which could not have been defeated by his will had he desired to do so.
    If the widow should now elect to take under the will, there is, in law, a valuable consideration in this election which will defeat the right of contribution mentioned in the statute.
    The text writers and all the decisions support this doctrine. We call the court’s attention to the fol-. lowing authorities upon the question: Page on Wills, secs. 771 and 776; Burridge v. Bradyl, 1 Peere Wms., 129; Blower v. Morret, 2 Ves. Sen., 420; Davenhill v. Fletcher, Ambl., 244; Norcott v. Gordon, 14 Sim., 258; Warren v. Morris, 4 Del. Ch., 289; Moore v. Alden, 60 Me., 301; Hastings v. Clifford, 32 Me., 132; Towle v. Swasey, 106 Mass., 100; Farnum v. Bascom, 122 Mass., 282; Taylor’s Estate, 175 Pa. St., 60; Brown v. Brown, 79 Va., 648; Hubbard et al. v. Hubbard et al., 6 Metc., 50; Justice v. Justice, 18 Atl. Rep., 675; 1 Underhill on the Law of Wills, see. 392; Beach on the Law of Wills, sec. 144; Duncan v. Franklin Township, 43 N. J. Eq., 143; In re Brook’s Estate, 10 N. Y. S., 20.
    
      Messrs. Booth, Keating & Peters and Mr. E. E. Tanner, attorneys for defendants in error.
    The action was brought under section 5963, Revised Statutes, which provides that a widow or widower may, at any time before the period for her or his election under a will has expired, file a petition in the court of common pleas, “asking a construction of the provisions of said will in her or his favor. ’ ’
    The purpose of such an action is to obtain a judicial interpretation of one or more provisions of a will. The reason for seeking such an interpretation may be due to the latent ambiguity of one or more provisions touching the •persons to whom property is devised or bequeathed, the property affected by the will, or some other ambiguity in the terms of the will itself on account of which the testator’s intention is not clear.
    If his intention is clear no judicial interpretation is required, and an action brought to secure such an interpretation must fail.
    
      "Where it is manifest that there is no such -uncertainty or ambiguity a general demurrer to the petition should be sustained. While there may be no reported ease arising under section 5963, in which such a demurrer has been sustained, it has been held that where an action has been brought under an analogous section (section 6202), such a demurrer will lie where there is no ambiguous provision of the will to construe. Hollister, Trustee, v. Howe, 6 Dec., 157; 4 N. P., 168.
    In the case at bar the plaintiff sought to have the court place an interpretation upon two sections of the Revised Statutes. She did not ask the court to state, or to adjudge, what the testator meant, but to state, or adjudge, what the legislature meant.
    
    Where an action is prematurely brought, asking for a construction of a will under section 602, it has been held that it should be dismissed. Serrick v. Serrick, 1 O. S. C. D., 244; 32 W. L. B., 393.
    By analogy the same rule should be applied to actions prematurely commenced under section 5963.
    There was no reason for calling upon the court of common pleas to pass upon some question which might, or might not, arise in the probate court in the administration of the testator’s estate. Upon the facts shown in the court of common pleas and the circuit court, neither of those courts could render any judgment, which would be binding upon the parties to the action, with reference to the-indebtedness of the estate, and much less could they determine the aggregate amount which will be realised from the sale of property not specifically devised. Until those facts are determined by the probate court, the question submitted to the court of common pleas and subsequently, on appeal, to the circuit court was merely a moot question, calling for a judicial guess upon questions which might or might, not arise in the probate court. For this reason the petition should have been dismissed.
    With reference to the liability of a widow to contribute in such eases, the statutes of the several states may be divided into three classes, viz.: First, those in which there is no express statutory requirement for contribution between the devisees of specific real estate or the legatees of specific personal property; second, those in which there is an express requirement that such devisees and legatees contribute, without exempting the widow from the operation of the statute; third, those in which there is such a requirement, from the operation of which, however, the widow is expressly exempted.
    
    New Tort and some other states may serve as examples of the first class. Ohio, Indiana, Kansas and some others fall within the second class. Connecticut, Rhode Island and perhaps some others fall within the third class.
    Section 5974, as quoted, can not aid the court in construing section 5973, or in determining the rights of the plaintiff in this case, because section 5973 must be applied to each and every ease which falls within its apparent terms, unless some provision in the will itself clearly indicates that the testator intended to make an appropriation of his estate, for the payment of his debts, “different from that prescribed in the preceding section.” There is no provision in Mr. Allen’s will which justifies the inference that he intended to prevent the operation of section 5973.in its application to the distribution. of the property devised by him and the payment of his debts.
    Section 308, General Statutes of Connecticut (1902), corresponds with section 5973 of the Ohio Revised Statutes, save as to the widow.
    This section appears to have been originally enacted in 1821, as shown by the statutes of that year, page 206, section 28. It was re-enacted, with the saving clause as to the widow, as early as the year 1885, as shown by the statutes of that year, page 502, section 146. How much longer, if at all, it has been in force it is difficult to determine from the Connecticut statutes to which we have access.
    Section 25, at page 667, of the General Laws of Rhode Island, 1896, corresponds with the Connecticut statute. The next section of the Rhode Island statute, section 26, corresponds with section 5974 of the Revised Statutes of Ohio.
    Section 2738 and 2739 (former sections 2568 and 2569) of the Revised Statutes of Indiana, 1901, and sections 7995 and 7996 of the Revised Statutes of Kansas, 1901, correspond very closely with the Ohio sections 5973 and 5974, so closely in fact that it is apparent that the Indiana and Kansas sections are copies of the Ohio sections. Similar provisions, at least so far as Ohio section 5973 is concerned, are found in the statutes of some of the other western states, which do not make any exception in favor of the widow.
    
    Does our section 5973 have the same meaning, so far as widows are concerned, as section 308 of the Connecticut statutes, and section 25 of the Rhode Island statutes, above quoted?
    
      There is nothing in the language employed in our section 5973 to indicate any intention on the part of the general assembly to exempt widows from its operation whether the devise to them he in lieu of dower or not, while the Connecticut and Rhode Island statutes show conclusively that the law makers of those states did intend to exempt widows from the liability to contribute under, such circumstances. If we give to the language of our section 5973 its ■natural meaning, which is, therefore, its obvious meaning, there is no such exemption under our statute as there is under the Connecticut and Rhode Island statutes, and perhaps also the statutes of some other states. The mere fact that, in the absence of any statute on the subject,, the courts of some states hold under the common law rule that widows are not required to contribute out of -property devised to them in lieu of dower, does not justify the claim'that we should attempt to read into section 5973 an exception not stated therein, hut, on the contrary, excluded by the explicit terms of the statute itself. '
   Shauck, J.

Mrs. Allen having failed in the -courts below to obtain such construction of the will of her late husband as she desired, and having prosecuted her petition in error here to obtain a reversal -of the judgment of the circuit court in that respect, it is now insisted by counsel for the defendants not only that the courts below correctly construed the will in the respect indicated, hut further that she is not now entitled to have it judicially construed. Her action is brought under favor of section 5963, Revised Statutes, whose pertinent - provisions are as follows: ....

* * * “Such widow or widower may, at any time before the period of such election has expired, file her petition in the court of common pleas for the proper county, making all persons interested in said will defendants to such petition, asking a construction of the provisions of said will in her or his favor, and to have the advice of said court, or of the proper appellate court on appeal thereof. ” * * *

The conceded facts that she has been cited by the probate court to appear therein and elect whether she would take under the provisions of said will or be endowed of the lands of her deceased husband, and that the time for making said election had not expired, seem to bring her action within the express terms of the section., Nor do we think it should be said that no substantial question is involved in the inquiry which she propounds, viz.:

Whether, if she elects to take under the will, she will be required to contribute to another devisee from whom lands devised may be taken for the payment of the debts of the testator. It is entirely clear that the testator might, by the terms of the devise to her, charge her with, or exempt her from, the obligation to contribute in such case. This would result from the general rule that the intention of the testator must control. It is also made clear by the provisions of section 5974, Revised Statutes, that the question with respect to which she especially desired the opinion of the court must be determined from a consideration of the provisions of the will in connection .with those of the statute.

Did the circuit court err in the conclusion that her election to take under the provisions of the will obliges her to contribute on account of the taking of other specifically devised lands for the payment of the debts of the testator? In that inquiry two sections of the statute are.material:

‘ ‘ Section 5973. When any estate, real or personal, that is devised shall be taken from the devisee for the payment of the debts of the testator, all the other devisees and legatees shall contribute their respective proportions of the loss to the person from whom the estate is taken, so as to make the loss fall equally on all the devisees and legatees, according to the value of the property received by each of them, excepting as provided in the following section.”

‘ ‘ Section 5974. If, in such case, the testator shall, by making a specific devise or bequest, have virtually exempted any devisee or legatee from his liability to contribute, with the others, for the payment of the debts, or if he shall, by any other provision in the will, have prescribed any appropriation of his estate, for the payment of his debts, different from that prescribed in the preceding section, the estate shall be appropriated and applied in conformity with the provisions of the will.”

Since not only the lands devised to Mrs. Allen, but also those which must be taken for the payment of the debts of the testator are the subjects of specific devises, the first clause of the latter section affords no aid in the inquiry presented. Nor do we find that the testator has, by any other provision of his will, prescribed such appropriation of his estate for the payment of his debts as would relieve the devise to Mrs. Allen from the obligation imposed by section 5973, if it is within the terms of that section. The section comprehensively imposes the duty to contribute upon “all the other devisees and legatees.” The insistence of the plaintiff’s counsel is that we should regard the section as containing an unexpressed exception in favor of the widow of the testator; and that would be, not to interpret the statute, but to amend it. The proposition urged in support of the view of plaintiff’s counsel is that a widow entitled to dower, when taking a devise in lieu of dower, takes, not as a devisee, but as a purchaser. We are not now concerned with the views taken of the subject by courts 'when applying the equitable doctrines respecting contribution to cases which were not affected by any statutory provision. We shall not go astray if we ascertain and follow the intention of the testator in making this will and of the general assembly in enacting this section of the statute. Is it supposable that the testator, when conferring upon the plaintiff the right to accept this devise in lieu of dower, intended to afford her an opportunity to purchase the lands which were the subject of the devise; or that the general assembly regarded the relation of widow as incompatible with that of devisee? It is said that this section of the statute is in derogation of the common law. If the proposition is granted, nothing follows except that the statute must not, by construction, be given any effect which its terms do not justify. The function of legislation to change the rules of the law remains. An unambiguous statute is to be applied, not interpreted. Extensive amplification of that observation would be easy and unprofitable. The dictionaries justify the conclusion that one who takes by devise is a devisee.

Concerning the numerous cases cited by counsel for the plaintiff in error, it is sufficient to say that in general they deal with the doctrine of contribution as applied to cases of the abatement of legacies because of a deficiency of assets, as that doctrine was applied to such cases in the absence of statutory provisions affecting the subject. It may be assumed that they establish the doctrine contended for and justify a discrimination among devisees if no statute subjects all devisees to the same- rule. But from this general statement Lord et al. v. Lord et al., 23 Conn., 327, should be regarded as a notable exception. Section 45, title Estates, of the statutes of Connecticut, does not seem to differ in any substantial respect from section 5973, Revised Statutes of this state. In' the opinion of the majority of the court in the ease cited no attention whatever is paid to the statute, but proceeding upon the general principles stated in other cases the conclusion is reached that the testamentary provision in favor of the wife was not subject to abatement for the payment of debts. The only consideration given to the statute is in the dissenting opinion where it is interpreted in accordance with the views herein expressed.

Judgment affirmed.

Crew, Summers and Spear, JJ., concur. ,

Davis, C. J.

(dissenting). I regret that I am unable to concur with the majority, either in their theory of this case or in the judgment. I do not think that section 5973, Revised Statutes of Ohio, controls this case; because I do not think that a testator’s provision for his widow, in lieu of dower, if accepted by her, constitutes her a “devisee or legatee.” That a widow in such case is not a volunteer, but a purchaser for a valuable consideration, has long ago been settled and generally understood. Heath v. Dendy, 1 Russ. Ch. Rep., 543; Isenthart v. Brown, 1 Edwards (N. Y.) Ch. Rep., 411; Wood v. Vandenburgh, 6 Paige, 277; Security Co. v. Bryant, 52 Conn., 311; Hubbard v. Hubbard, 6 Metc. (Mass.), 50; Pollard v. Pollard, 1 Allen (Mass.), 490; Borden v. Jenks, 140 Mass., 562; Thomas v. Harrison’s Exr., 1 Md., 296; Reed v. Reed, 9 Watts (Pa.), 263, are precisely in point, and many other cases cited for plaintiff in error recognize the same principle. See also 2 Williams on Executors (7 Am. ed.), *1217-1218; Page on Wills, sec. 776; and Beach on Wills, sec. 144. “When particular words and phrases have in law acquired a fixed legal signification, and are thus incorporated into a statute the legal presumption is that the legislature meant to use them in this legal sense.” Turney v. Yeoman, 14 Ohio, 207; Gray v. Askew, 3 Ohio, 466; Grogan v. Garrison, 27 Ohio St., 50, 63; Palmer, v. Barby, 64 Ohio St., 520, 529. See also 2 Lewis’ Sutherland on Statutes (2 ed.), sec. 398; 26 Am. & Eng. Ency. Law (2 ed.), 607: Thus a widow when a Jevise is made to her in lieu of dower would be excluded from the operation of the statute. In my opinion it does not answer this view of the case to say that the legislature may have had this state of the law in mind and intended to provide that all persons taking under a will should contribute to the payment of the testator’s debts; for Lord et al. v. Lord et al., 23 Conn.,. 327, cited in the majority opinion, was decided upon a statute substantially like our section 5973 (see p. 338), and as the court was not unanimous the statute seems to have been afterwards amended to avoid the construction of the majority of the. court, inserting the words, £ except the widow where the devise is made in lieu of dower.” Besides, this view imputes to the legislature the deliberate intention of working the rank injustice of subjecting the widow’s portion to the payment of the husband’s debts in cases where, through had advice or ignorance, she releases her dower and accepts in lieu of it the provision in the will, which may leave her without a dollar in lieu of her dower. In other words under such a construction of the statute, the husband’s creditors, who could not subject the widow’s dower, may take every dollar of that which she may he led to accept in lieu of it. That never was the law before the statute and I would not impute such an unrighteous intention to the legislature in the enactment of it.

Price, J., concurs in the dissenting opinion.  