
    Posegate v. South et al.
    
      Will — Devise of personalty 1o wife, with unconsumed remainder to heirs — •Estate of widow therein — Duty of executor under the will.
    
    A testator bequeathed all his personal estate, after the payment of his debts and funeral expenses, to his wife, and at her death, “said personal estate, or so much as shall be unconsumed, to be equally divided between ” his heirs, naming them. The wife survived the testator, and accepted the provision made for her in the will. The executor paid the debts and funeral expenses, and delivered the balance of the personal estate to the widow, and settled his accounts accordingly. The will did not require or direct the executor to collect or distribute the personal estate that might be left unconsumed at the death of the widow, or enjoin upon him any duty with respect thereto. Held:
    
    
      1. After the debts and funeral expenses were paid, the widow became entitled to the possession, use and enjoyment of the personal estate, with the right to consume the whole or any part of it; and it was the duty of the executor to deliver possession thereof to her.
    2. When the executor performed that duty, he administered the estate and executed his trust, and can not be held responsible for any use or disposition made by the widow, of such personal estate after it so lawfully came to her possession ; nor, can he thereafter be required to account therefor in the probate court.
    (Decided April 23, 1889.)
    Error to the Circuit Court of Clinton County.
    On the 25th day of March, 1885, Benjamin F. South and Charles P. South filed their motion in the Probate Court of Clinton County, for a citation against Isaac N. Posegate, executor of the last will and testament of Charles Posegate, deceased, to compel him to render an account. On the same day, the executor appeared, and answered that on the 6th day of August 1870, he made a final settlement of his trust, in said court, ou which settlement there was found to be then remaining in his hands, a balance of eight thousand one hundred and forty-six dollars, after the debts and expenses ofadministration were paid, which balance be then, in accordance with the last will and testament, turned over to Ann Posegate (the widow of the testator), who died in 1877, but who, before her death, consumed and disposed of the same, except enough to pay the expenses of her last sickness and funeral.
    This answer appears to have been treated by the probate court as an account, and Benjamin F. and Charles P. South filed exceptions to it; the ground of the exceptions being, as stated in the record, “that at the time of the death of Ann Posegate, to-wit: April 29th, 1877, said executor received and had in his hands, as such executor, the sum of eight thousand dollars, and that he still retains the same/’ and it was asked that he might be charged therewith, together with interest thereon. Upon the hearing, the probate court proceeded to state an account for the executor, and found there was in his hands the sum of four hundred and eighty-two dollars and eighty-five cents, which the executor was ordered to pay to Benjamin F. and Charles P. South, in equal proportions., From this order of the probate court, the two Souths took an. appeal to the court of common pleas, which, on the trial there, found that the estate of Charles Posegate had been fully settled, and distribution thereof made in conformity to the last will and testament, and rendered judgment against the appellants for costs.
    A bill of exceptions was taken, from which it appears that “the following state of facts was agreed upon by the parties, and given to the court as testimony :
    “That Charles Posegate, in the month of March, 1860, about the 19th day thereof, having four children, to-wit: I. N. Posegate, Mary Ann Woodmansee, Martha MeKibben and Sallie South, made a will as to his personal estate, devising same to his wife, Ann Posegate, during her life, and at her death to be equally divided among the four children above named, and appointing I. N. Posegate executor of said will. Sallie South died April 4th, 1861, leaving Charles. P. South and Benjamin F. South, her only children and heirs at law. Charles Posegate died July 17th, 1869, leaving a widow, Ann Posegate, and the above named I. N. Posegate, Mary Ann Woodmansee, Martha MeKibben, and the above named children of Sallie South, his only heirs at law.
    “Ann Posegate died April 29th, 1877. At the death of Charles Posegate, I. N. Posegate qualified as executor, and proceeded to settle his estate. After making full settlement, and paying all the liabilities of said estate of every kind, there remained in his hands the sum of $8,146.00, in money and notes, which he handed over to his mother, and she retained $746.00, the money 6n hand, and divided the rest between I. N. Posegate, Mary Ann Woodmansee and Martha MeKibben, giving to I. N. Posegate $3,800, his one-fourth and Sallie’s one-fourth, and Mary Ann Woodmansee and Martha MeKibben $1,800 each, same being one-fourth to each, for which they gave her their notes, and paid her interest on the same as long as she lived.”
    It also appears from the bill of exceptions, that in the life time of the testator, Isaac N. Posegate, for a consideration of six hundred dollars, purchased from Mrs. South her claim in the personal estate of her father, and took from her and her husband, a receipt acknowledging such purchase, and full payment therefor.
    The will of Charles Posegate, which was duly probated, and is made part of the bill of exceptions, omitting its merely formal parts, is as follows:
    “ First — It is my will that all my just debts and expenses of my last sickness and funeral expenses be paid.
    “Second — I give and devise to my beloved wife, Ann Pose-gate, in lieu of her dower, all my personal and chattel estate of every description that may be in my possession at the time of my death, after paying my debts and funeral expenses.
    “ Third — At the death of my said wife, the said personal estate, or so much as shall be unconsumed, to be equally divided between my lawful heirs, to-wit: Isaac N. Posegate, Mary Ann Woodmansee, Martha McKibben and Sarah Jane South.
    “ Fourth — I do hereby nominate and appoint Isaac N. Posegate executor of this, my last will and testament, hereby authorizing and empowering him to compromise, adjust, release, and discharge in such manner as he may deem proper, the debts and claims due me.”
    The circuit court reversed the judgment of the court of common pleas, on a petition in error prosecuted by Benjamin F. and Charles P. South, and the executor, Isaac N. Posegate, prosecutes error to this court to obtain the reversal of the'circuit court.
    
      Telfair & Telfair, for plaintiff in error.
    
      J. M. Kirk, for defendants in error.
   Williams, J.

The questions chiefly argued in the case, relate to the validity of the transfer by Mrs. South, of her expectancy in the personal estate of her father, to her brother Isaac N. Posegate. The defendants in error contend, that the attempted transfer is inoperative against them, first: because Mrs. South was, at the time, under the disability of coverture; .■and secondly, her father being then living, her interest in his estate was incapable of transfer. It is also claimed that Mrs. South having died before'her father, her children, by force of the statute, (sec. 5971 R. S.) took directly under the will, and not from her.

Unless, however, at the death of the widow, it became the •duty of the executor to collect and distribute the unconsumed personal estate given her by the will, an account thereof •could not be enforced against him in the probate court; •and whether such duty devolved upon, the executor in the execution of his trust, is naturally the first question demanding consideration.

No statutory election by the widow to take under the will of her deceased husband, is shown by the record. It discloses however, that she actually accepted the provision made for her in the will, by receiving, using, and controlling the property bequeathed to her, as fully as she could, if she had appeared in the probate court for that purpose, and declared her election, which is the equivalent of an election made in •conformity to the statute. Baxter v. Bowyer, 19 Ohio St. 490. The bequest contained in the second item of the will, is absolute, and, unaffected by any other provision of the will, would vest in the widow, the unqualified ownership of the property •bequeathed to her. If it be conceded, that the third item, which, at her death, gives the personal estate, or so much thereof as shall be unconsumed, to the testator’s children, so ■qualifies the previous bequest, as to reduce the estate given by it to the widow, to one for life, it must also be admitted, that it is a life estate with the right to the possession, use, enjoyment and consumption of the property by her, without restriction, either upon the mode of its use and enjoyment, or the extent of its consumption ; for, it is only so much as shall remain unconsumed at the death of the widow, that is given over to the children, and no limitation is found in the will, upon the nature of the use to which she may subject the property, and her power to consume it. is uncontrolled. Such right of use, enjoyment and consumption, necessarily implies the right to the possession of the property, since, vdthout its possession, it could neither be used, enjoyed or consumed. The duty of the executor, under the will, therefore was, after the payment of the debts and funeral expenses of the testator, to deliver possession of the personal estate to the widow.

It may be, that a court of equity, would have compelled the widow to furnish the legatees of the remainder, an inventory of the property received by her from the executor ; and, that a proceeding might have been maintained by them against her to require security against its improper disposition, likely to defeat their estate in it. It has sometimes been held, that equity will assist the donee in remainder, to whom a gift of personal property is made after the decease of another who is to have it only for life. And it may also be, that no disposition which the widow could make of the property, otherwise than such as resulted from its use and comsumption, would be effectual as against the children to whom the unconsumed remainder is bequeathed, and, that a remedy is open to them, to‘ charge the person receiving it under such unauthorized disposition, like that pursued in the case of Huston v. Craighead, 23 Ohio St. 198. But we are of opinion, no duty was imposed upon the executor, to exact an inventory from the widow when he delivered the personal estate to her according to the requirement of the will, or to institute proceedings to protect the donees in remainder; nor, is he responsible for any disposition made of the property by the widow after it lawfully came to her possession, or thereafter accountable for it, in his representative capacity. It can not be claimed, that any express duty is enjoined by the will upon the executor, with respect to the estate in remainder. He is not required or directed to take charge of the unconsumed personalty, and divide it among the children. It is given by the will directly to them, to be equally divided among them. Upon this point the case is not distinguishable from Flickinger v. Saum, 40 Ohio St. 591. There, the testator devised and bequeathed his real and personal estate, after the payment of his debts, to his wife for life, remainder to be qually divided between the heirs of his children. The executor paid the debts, and delivered the balance of the personal estate to the widow. It was held the executor had no remaining duty to perform, and that it was not his duty to divide the estate in remainder. It is said in the opinion by Martin, J., that after the executor paid the debts; (there being no legacies to pay), he had no right to retain the assets. The devise to the widow was of all the personal property, and was in its nature specific. The assent by the executor was a relinquishment of all claim to the property, and perfected the title of the widow and remainder men.” And see Ratcliff v. Warner, 32 Ohio St. 334.

In the case now under consideration, the bequest to the wife is of all the testator’s personal estate. The debts and funeral expenses were paid by the executor. There were no legacies to be paid. The executor had no right to withhold from the widow, the personal estate remaining in his hands, and nothing remained for him to do but deliver its possession to her, and settle his accounts. This, according to the agreed statement of facts contained in the bill of exceptions, the executor did, and we think the court of common pleas correctly held, that the estate was finally settled and distributed in conformity to the will. As this conclusion is decisive of the case, we leave undecided the questions argued, concerning the validity, and effect of the transfer by Mrs. South of her expectancy, and the rights of the defendants in error in the property. Those questions could not properly be determined in the proceeding prosecuted by them in the probate court, nor in any other which that court has jurisdiction to entertain.

Judgment of the circuit court reversed, and that of the common pleas affirmed.  