Cleveland Trust Co. v. Clancy

— 98 — OPINION By SKEEL, PJ. This appeal comes to this Court on questions of law from a final order of the Probate Court of Cuyahoga County, entered on August 26, 1949, in which the Probate Court on application of the Executrix of the estate of the widow of Thomas E. Croke, deceased, increased the year’s allowance from $750.00, fixed by the appraisers of the within estate, to $5000.00, or $4250.00 in addition to the amount awarded by the appraisers. Thomas E. Croke died testate on April 18, 1948. By the terms of his will he provided in part that his widow, in addition to other benefits, was to have the entire net income of the estate during her life and after her death the testator’s daughter was to receive the residue. Item II of the will provided: “II. The provisions herein made for my wife, Mary J. Croke, shall be in lieu of her dower and distributive share of my estate but not in lieu of any other rights or benefits conferred by law upon surviving wives.” The record discloses that appraisers were appointed as provided by law and also a suitable person to advise the widow of her rights under the will and also under the law of descent and distribution. Before the appraisers set off the widow’s allowance the widow died. The date of her death was July 31, 1948. She survived her husband by three months and thirteen days. After her death the appraisers set off, to-wit, on July 20, 1949, the widow’s allowance in the sum of $750.00. The estimated net value of the estate was $77,963.00. On August 2, 1949, the executrix of the estate of the widow, Mary J. Croke, filed exceptions to the year’s allowance, together with a motion to increase such allowance. The exception and motion came on for hearing on August 26, 1949, and upon consideration the court vacated the award of the widow’s allowance entered by the appraisers in the sum of $750.00 and increased the same to $5000.00. The application filed by the executrix of the estate of Mary J. Croke, provided in part as follows: — 99 — “Now comes Anna Clancy, Executrix of the Estate of Mary J. Croke, deceased, widow of Thomas E. Croke, deceased, and respectfully represents that the appraisers of the personal estate of said Thomas E. Croke, allowed the sum of Seven Hundred and Fifty Dollars ($750.00) of money for the support of said Mary J. Croke for one year; that said sum is and would- have been wholly insufficient to support said Mary J. Croke, for a period of twelve (12) months, and that she would have required an additional sum of Four Thousand Two Hundred and Fifty Dollars ($4250.00); that said Mary J. Croke was at the time of the death of her husband seventy-four years of age and in ill health, and incapable of taking care of herself and required medical attention and constant nursing care.” The year’s allowance as set forth in Schedule G, was in part as follows: “The said decedent leaving Mary J. Croke, widow who died July 31, 1948, and no children under the age of eighteen years, we do set off and allow to her sufficient provisions or other property to support her for twelve months from the decedent’s death, to-wit, * * * And there not being sufficient personal property, or property of a suitable kind, we certify that the sum of Seven Hundred and Fifty Dollars in money, is necessary for the support of such widow and children distributed as follows: Total money and property allowed $750.00.” The sole question presented here is whether or not the right to a “full year’s” allowance survives the death of the widow before the expiration of a year from the date of the death of the husband and before the appraisers have set off such allowance as provided by §10509-74 GC. Sec. 10509-74 GC provides: “Year’s Allowance to Widow and Children: The appraisers also shall set off and allow to the widow, and children under the age of eighteen years, if any there be, or if there be no widow, then to such children, sufficient provisions or other property to support them for twelve months from the decedent’s death but such allowance shall be set off to such children only when necessary for their support, taking into consideration the father’s primary duty to care for his children. The probate judge shall have authority to fix the year’s allowance, if the appraisers fail to do so, or if for any reason — 100 — there is no appraisal. If the widow, or such children, after decedent’s death, and previous to such allowance, have consumed any part of the estate for their support, the appraisers shall take that into consideration in determining the amount of the allowance. Any allowance granted to children shall be held by the surviving parent or by the guardian, with power to use it for the children’s support.” Thé face of the record as above set forth discloses clearly that when the appraisers set off the widow’s allowance the amount was fixed at $750.00, for the reason that the widow had survived her husband for a period of about three months. The order of the Probate Court granting the widow’s executrix’s motion for an increase of the widow’s allowance to $5000.00 was made on the basis of what would have been necessary had the widow lived for the full year following the death of her husband. The answer to the question here presented must be one of first impression, as it seems never to have been decided in this State. It is suggested that the case of Dorah’s Admr. v. Dorah’s Execx., 4 Oh St 292, is determinative of this question. Such, however, is not the case. In the case of Dorah’s Admr. v. Dorah’s Execx., supra, certain property of the value of $42.87 and an additional sum of $157.13 were set off to the widow as and for her year’s allowance. Shortly thereafter and before the expiration of the year, the widow died and this action was instituted by her administrator to enforce the payment of the balance due. The court found for the plaintiff. Paragraphs 1 and 2 of the syllabus provide: “1. The death of a widow to whom an allowance has been made under Sections 45 and 46 of the administration law, before the expiration of the year, and before it has all been expended in her support, does not bar the right of her executor to recover the amount unpaid, from the executor of her husband.” “2. Such allowance confers a vested right of property and is not divested by her death, or by any other contingency, occurring after the amount has been fixed and allowed by the proper tribunal.” However, syllabus 3 provides: “3. Whether upon petition for such cause, the amount might be diminished by the probate court under section 48— quaere?” — 101 — And on page 297 of the opinion, Judge Ranney says: “We have not found it necessary to consider whether the probate court might, upon a petition filed under section 48, take into consideration such circumstances, transpiring after the action of the appraisers, as tended to show that the amount ought to be increased or diminished; or whether the court should be confined to the consideration only of the correctness of the decision made by them, and we therefore express no opinion upon that subject.” So the court expressly makes no finding on the question here presented. The case of Barn v. Wick, 14 Oh St 505, is likewise of no help to either party to this controversy. In that case the widow’s allowance was not set off during her lifetime but she did survive her husband by much longer than a year. The court held: “That where the appraisers neglect to set off and allow to such widow her year’s support as required by the statute, and she, after the expiration of the year, dies, without having waived or relinquished her right to such allowance, the same survived to her personal representatives.” The ruling of this case simply finds that the right to a year’s allowance after the death of her husband, is an obligation of her husband’s estate and if she survives the full year, upon her death thereafter her legal representatives may enforce the obligation due from her husband’s estate. The husband owes the obligation to support his wife out of his property or labor. (Sec. 7997 GC). Sec. 10509-74 GC, simply places this obligation on his estate for a period of one year after his death whether the wife has any other means of support or not. The right which is here provided is support and not a distributive share of the husband’s estate. The supreme court in the case of In re Estate of Metzger, 140 Oh St 50, at page 53, said: “* * * Under this wording, both §10509-74 and §10509-57 GC, would appear primarily to contemplate the usual situation where a widow and minor children live for a considerable time following the death of the decedent and the allowances made are essentially for their use, comfort and enjoyment.” — 102 — See also: Steward v. Barry, Admr. 102 Oh St 129 It must be further noted that by the provisions of §10509-121 GC the widow’s allowance is third in order of payment, being preceded only by the court costs and funeral expenses not in excess of three hundred dollars. In this section the-payment is designated as “support.” It must logically follow, therefore, that if after the husband dies his wife dies also within the period of one year, the obligation of support must end as of the date of her death, and such fact should be considered in setting off the widow’s-allowance for support if her death occurs before the appraisers act under §10509-74 GC. Or, if they have acted. in setting aside her year’s support, such finding becomes a vested right in her which can be enforced after her death,. subject to being modified by proper action if taken under the provisions of §10509-77 GC, which provides: “Sec. 10509-77 GC. On petition of the widow or other-person interested, the probate court may review the allowance made to the widow or children, and increase or diminish, it, and make such order in the premises as it deems right.”- For the foregoing reasons the order of the Probate Court increasing the widow’s allowance from $750.00 to $5000.00 is reversed and the cause remanded for further proceedings according to law. Exc. Order see journal. McNAMEE, J. Concurs (see concurring opinion) HURD, J. dissents (see dissenting opinion)