
    MILLER, Gdn. v. ALLEN, Exr. et.
    Ohio Appeals, 2nd Dist., Franklin Co.
    No. 1584.
    Decided March 16, 1927.
    First Publication of this Opinion.
    1271. . WILLS AND LEGACIES — Where widow elects to take under law, her rights in estate are determined and provisions of will in her behalf are superceded.
    1197. TRUSTS AND TRUSTEES — 593. Guardian and Ward — Trustees, under will with power to manage estate and expend such portion of net income as, in their opinion, may be necessary for maintenance and education of minor child, have authority to determine amount to be expanded. Such amount must be paid to guardian.
    Appeal from Common Pleas.
    T. C. Stillwell, Mt. Vernon, for Miller.
    James A. Allen and James N. Linton, Columbus, for Allen.
   FERNEDING, J.

This case is here on appeal. It involve - generally, a construction of the last will of James Ross, duly probated in this county, although in a more particular way it involves 'but two questions.

First, did the trust, created under the will, terminate by reason of the widow declining to accept under the will and electing to take under the law, and subsequently remarrying?

Second, if the trust did not terminate, do the trustees have the right to fix the amount payable fiom the estate for the maintenance and education of the minor son, or does the guardian have the exclusive right to fix such amount, and must said amount, if it is -to be allowed by the trustees, he payable to the guardian, or shall the trustees personally expend such money for such purposes ?

There are three sections of the will which are in controversy. The first of these bequeaths all of decedent’s property, except household goods, to trustees with full power to sell and convey. The second directs the trustees, after paying all proper charges and expenses incident to the management and maintenance of the trust property, to pay such portion of the net proceeds as, in their opinion, niay be proper and necessary, to the widow, during the minority of the son, unless he decease before reaching his majority, in which event the net proceeds are to he paid to the widow during her life, unless she, in the meantime, has remarried or shall thereafter remarry. In the event of the remarriage of -the widow during the minority of the son, such portion of the net income of the estate as, in the opinion of the trustees, may he necessary, shall be expended by them for his maintenance and education. The third item provides for the conveyance to the son, upon reaching his majority, of all of the trust estate, subject to an annuity, with which said estate shall be charged, of the sum of 50% of the net proceeds thereof, to be paid by the son to the widow, during her natural life, unless she has or does remarry.

James Boss died Nov. 30, 1923, leaving, surviving him, his widow and minor child James Boss, Junior, aged eight years. The widow elected to take under the law, and has remarried. The widow has been appointed, and is now acting as, guardian of said minor child.

We are of opinion that, by reason of the widow’s election to take under the law, her rights in the estate are determined and the provisions of the will in her behalf are thereby superceded.

We think, however, that the trust, created by the will and imposed upon the trustees, in all other respects, except as to the interest of the widow, is continuing, and it becomes the duty of such trustees to make reasonable allowance for the maintenance and education of said minor child, commensurate with the amount and net income of the estate and the reasonable necessity for the maintenance and education of said minor child. The amount allowed for the support and education of the minor son should be made payable to, and expended by, the guardian, in this case the mother.

Decree accordingly.

(Kunkle and Allread, JJ., concur.)  