
    Cohen et al., Exrs., Appellees, v. Cohen et al., Appellants.
    (No. 6866
    Decided December 15, 1947.)
    
      Messrs. Gorman, Silversteen & Davis, for appellees.
    
      Mr. Benjamin S. Schwarts, for appellants.
   Hildebrant, J.

In passing on exceptions to the inventory, the Probate Court denied 'the efficacy of an antenuptial agreement, dated June 4, 1925, between •decedent and the widow, to preclude the widow from receiving the statutory exemption of $2,500 under ■Section 10509-54, General Code, allowed her by the .appraisers in the inventory.

This allowance is claimed as error in this appeal on ■questions of law.

The antenuptial agreement heretofore upheld by the Probate Court and this court reads in part:

“That whereas, the parties hereto contemplate a marriage with each other and do not desire to affect in any way the legal status of the property owned by •said parties or ihe rights of their heirs except as hereinafter provided, and, * * *

“Whereas, in view of these circumstances said Joe Cohen ‘ desires to make suitable provision for said Lena Wolfson in lieu of dower in his real estate and in place of any year’s allowance, homestead, mansion rights, and other share in or distribution of his per•sonal estate, and of any and all other rights or claims of the said Lena Wolf son as widow,' heir, survivor, or next of kin of the said Joe Cohen, and has explained to her the value of the estate she is relinquishing, being the dower, year’s allowance, homestead, mansion rights and the distributive share of his personal estate.

# # # * #

“In consideration of said marriage and the promises and agreements of said Joe Cohen and the conveyance of said one-half interest in the real estate to be purchased above described, the said Lena Wolf son hereby covenants and agrees to and with the said Joe Cohen, his heirs, executors, administrators, and assigns, that ■said conveyance of said one-half interest in said real real estate to be ^purchased shall be in lieu of any and all rights or claim of dower, inheritance, or descent, in and to the real property of said Joe Cohen now owned or hereafter acquired, and in lieu of any and all rights or claims to a distributive share of his personal estate now owned or hereafter acquired, and of all claims for an allowance for a year’s support, and mansion rights, and in lieu of any and all claims or rights in and to the estate of said Joe Cohen which may in any manner arise or accrue by virtue of said marriage. ’ ’

Item II of the Will of the decedent is:

“Item II. Having heretofore, to wit, on the 4th day of June, 1925, entered into an antenuptial contract with Lena Wolf son, who is now my wife, Lena Cohen, in which contract we adjusted and settled our mutual property rights, I now confirm said antenuptial agreement and request that the same be carried out to the letter, and for that reason I make no bequest or devise to my wife, Lena Cohen, herein, as such antenuptial contract, made an equitable and just disposition and settlement of all property rights between us.”

Section 10509-54, General Code, provides in substance that certain personal property, if s'elected, as therein proyided, by the widow, shall not be deemed assets or administered as such, but must be included in the inventory or in lieu thereof, money up to a maximum of $2,500, which shall be a charge on all property, real and personal, belonging to the estate*, prior tq the claims of all unsecured creditors of the deceased or of the estate.

Historically, the purpose of the statute was to partially compensate the surviving spouse for loss of vested dower rights which were abolished at the same-time and to supplement the compensatory increase granted a spouse under the statutes of descent and distribution, changed at the same time. See comment under Section 10509-54 in the Pagers Ohio General Code, and Vol. IV, Ohio BAR, page 412.

It, _ therefore, appears that the wording of the ante-nuptial ‘ agreement is peculiarly apt in specifically covering dower rights and cláims to a distributive-share of the estate.

Further, the antenuptial agreement clearly declares its provisions to be in lieu of any and all rights or claims to a distributive share of the personal estate now owned or hereafter acquired, and in lieu of any and all claims or rights in and to the estate which may arise or accrue by virtue of the marriage.

The language is all-inclusive, and leayes no room for construction by a court and clearly covers the provisions of that section.

The chief contention made is that it is against public-policy to deny this set-off to the widow, even in the-face of this antenuptial agreement, found by the Probate Court and this court to be fair, reasonable and valid, and fully performed by the decedent for some-16 years.

In Section 10504-61,' General Code, the Legislature,. inter alia, has provided that election of a spouse to take under a will does not bar the exemption under Section 10509-54, General Code, unless the will expressly otherwise directs. The public policy has thus been declared to permit the bar by will and there appears to be even stronger reason to uphold the bar of an antenuptial' agreement found fair, reasonable, and fully performed for some 16 years. We cite Atwood, Exr., v. Miller, 24 Ohio Opinions, 398, 10 Ohio Supp., 131, although a Probate Court case, finding language in the will, far less clear and convincing than the wording of the antenuptial agreement here, sufficient to bar the money exemption. And by his will this decedent expressly confirms this antenuptial agreement and requests it be carried out to the letter. By inference, at least, Juhasz v. Juhasz, 134 Ohio St., 257, 16 N. E. (2d), 328, 117 A. L. R., 993, is consistent with holding the antenuptial agreement to be a bar. The validity of an antenuptial agreement was involved there, and the court found it was not properly attacked within the time limit set by Section 10512-3, General Code, and, therefore, was valid, and not subject to attack, so that the lower court’s refusal to set off the 20 per cent exemption was permitted to stand.

If the widow may still claim the exemption in the face of a valid antenuptial agreement, the limitation of time fixed by the Legislature within which to attack such agreements is, at least, with .reference to the 20 per cent exemption, rendered meaningless.

We, therefore, conclude that the antenuptial agreement, found to be fair, reasonable and by the decedent fully performed for some 16 years, is sufficient to preclude the widow from receiving the exemptions provided by Section 10509-54, General Code, and is a •complete bar to setting them off to her.

For these reasons, the judgment is reversed and final judgment here rendered for the appellants.

Judgment reversed.

Matthews, P. J., Ross and Hildebrant, JJ., concur in the syllabus, opinion and judgment.  