Barlup v. Holloway
| Decision Date | 20 January 1971 |
| Citation | 25 Ohio App.2d 44,266 N.E.2d 241 |
| Parties | , 54 O.O.2d 77 BARLUP, Appellant, v. HOLLOWAY et al., Appellees. |
| Court | Ohio Court of Appeals |
Syllabus by the Court
1. Where an antenuptial agreement places restraints upon a testator and where such testator neglects to comply properly with such provisions in his will, and the widow, within nine months following the appointment of the executor, brings an action in a declaratory judgment proceeding to determine the validity of such antenuptial agreement and seeks the advice of the court, such declaratory judgment action is a 'proceedings for advice' as is contemplated in R.C. 2107.39.
2. In such event the widow has three months after the final disposition of such declaratory judgment proceedings within which to make her election as to whether she will take under the statute of descent and distribution or whether she will take under the will.
John B. Kelly, Bellefontaine, for appellant.
Smith & Smith, Bellefontaine, for appellees.
This is an appeal from the action of the Probate Court for Logan County in dismissing a petition for declaratory judgment. The plaintiff and her deceased husband, Walter H. Barlup, were married, each for the second time, on October 23, 1955. Prior to that marriage the plaintiff and her intended husband entered into an antenuptial agreement on October 8, 1955.
This antenuptial agreement provided among other things that the husband was to execute a will by which he would give to the plaintiff his residence in Perry Township, Logan County Ohio, valued at $12,000 for and during her natural life and at her death the residence was to go in fee simple to his daughter by the previous marriage.
The antenuptial agreement further provided as follows:
The petition for declaratory judgment asserts that Walter H. Barlup did on the 4th day of January, 1956, cause to be prepared and executed a will, being his last will and testament as admitted to probate in the Probate Court of Logan County, Ohio. It is admitted that the petition for declaratory judgment was filed within nine months from the appointment of the executor. The petition further alleges that the last will and testament of Walter H. Barlup contains no provision granting to the plaintiff as the sole survivor any personal property accumulated by the said Walter H. Barlup subsequent to his marriage to the plaintiff. The petition further prays for a declaratory judgment as to the validity of said purported antenuptial agreement; that it be declared null and void and not binding in that it was never fully performed by Walter H. Barlup, and the petition further alleges that until the court determines the validity of the antenuptial agreement the plaintiff is unable to make her election in the probate court as to whether she would take under the statute of descent and distribution or whether she should take under the will.
A hearing was had in the Probate Court upon the above matters, and the matter was taken under advisement by the court; but in the meantime and after the nine months within which plaintiff had to make an election had expired the defendants filed a motion to dismiss the petition upon the grounds that the nine months plaintiff had to make an election had expired without her making such an election and that she was, therefore, conclusively presumed to have elected to take under the will, and that the matters involved were, therefore, moot.
The Probate Court sustained that motion and dismissed the petition upon the grounds that an action in declaratory judgment to construe an antenuptial agreement, being 'an instrument with legal significance of its own,' was not a 'proceedings for advice' as is contemplated in the second paragraph of R.C. 2107.39, and further held that such 'proceedings for advice' was only such a proceeding as is contemplated in R.C. 2107.40.
R.C. 2107.39 provides that the election of the surviving spouse shall be made within one month after service of a citation to elect, or if no citation is issued then such an election shall be made within nine months after the appointment of the executor or administrator. Such section further provides that on a motion filed before the expiration on such nine months and for good cause shown, the court may allow further time for the making of such an election. The second paragraph of such section provides as follows:
'When proceedings for advice or to contest the validity of a will are begun within the time allowed by this section for making the election, such election may be made within three months after the final disposition thereof if the will is not set aside.'
R.C. 2107.40 provides:
'At any time before the period of the election provided by Section 2107.39 of the Revised Code has expired, the surviving spouse may file a peition in the probate court or in the court of common pleas making all persons interested in the will defendants thereto, asking a construction of such will in favor of such spouse, and for the judgment of the court.'
The Probate Court and the appellant herein rely strongly upon the cases of In re Estate of Witteman, 3 Ohio St.2d 66, 209 N.E.2d 427, and In re Estate of Wolfel, 3 Ohio App.2d 11, 209 N.E.2d 594 decided by this court in 1965. In my opinion neither of these are pertinent to the issues presented in this case. Witteman decided that...
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