In re Hinton's Estate
| Decision Date | 07 May 1901 |
| Citation | 64 Ohio St. 485,60 N.E. 621 |
| Parties | In re HINTON'S ESTATE. |
| Court | Ohio Supreme Court |
Error to circuit court, Belmont county.
In the matter of the estate of Amanda L. Hinton, deceased. On the 27th day of December, 1898, Joseph T. Hinton departed this life intestate, leaving Amanda L. Hinton, his widow, and Maud Hinton, over 15 years of age, and four other children, under the age of 15 years, his only heirs. An administrator was appointed on his estate, and there was set off to the widow and said four children under the age of 15 years the sum of $30 each for one year's support, and also certain personal property named in the inventory. On the 26th day of July, 1899, said Amanda L. Hinton died intestate, leaving said five children her only heirs at law; said four children being still under the age of 15 years. Theodore Chappell was duly appointed administrator of her estate, and the appraisers set off to said four minor children for one year's support the sum of $150 to each, and also some of the personal property which had been set off to the widow by the other administrator, as being exempt under the statute. Thereupon George W. Hance, the duly-appointed guardian of said Maud Hinton, who was over 15 years of age, filed exceptions to said inventory, claiming that said four children under 15 years of age were not entitled to a year's support out of the estate of their mother, and were not entitled to have said personal property set off to them under the statute, as not being assets of their mother's estate. The probate court sustained the exceptions, and the administrator appealed to the court of common pleas, where the case was heard upon an agreed statement of facts, from which the above facts are taken. The common pleas overruled the exceptions. Thereupon the guardian of Maud filed his petition in error in the circuit court, and that court reversed the judgment of the common pleas and held the exceptions well taken. Thereupon the administrator of the estate of Mrs. Hinton filed his petition in error in this court, seeking to reverse the judgment of the circuit court and for an affirmance of the common pleas. Reversed.
Syllabus by the Court
1. Where the facts are conceded or agreed upon in a trial, the judgment of the court, rendered upon such facts, may be reviewed in a higher court by petition in error, without a motion for a new trial.
2. Children under 15 years of age are entitled to have set off and allowed to them, out of the estate of their deceased mother, sufficient provisions or other property, or money, to support them for 12 months, in like manner as they are entitled to such support out of the estate of their deceased father.
Petty & Crew, for plaintiff in error.
G. A. Colpitts, for defendant in error.
BURKET, J. (after stating the facts).
There was a motion made in the common pleas court to dismiss the appeal taken by the administrator, for the reason that he filed no appeal bond. The motion was overruled, and exceptions taken. There was no error in overruling this motion. The record shows that the administrator was duly appointed and qualified. He therefore gave bond in this state for the faithful discharge of his duties. The record also discloses that his appeal was in the interest of the trust and not for his own interest. In such cases no bond is required under section 6408, Rev. St.; but he shall be allowed an appeal by giving written notice to the court of his intention to appeal within the time limited for giving bond. He gave written notice of appeal, and thereby availed himself of the statute, and was not required to give an appeal bond.
There was also a motion filed in the circuit court by counsel for the administrator to strike the bill of exceptions, taken in the common pleas, from the files, for the reason that no motion for a new trial was filed in that court. The circuit court overruled the motion, and an exception was noted. There was no error in overruling this motion, for the reason that a motion for a new trial was not necessary. The facts were agreed upon. That is conceded; and all that was necessary was for the court to apply the law to the conceded facts. There was no evidence to be weighed or considered, the only question being whether the court rendered the right judgment upon the facts as conceded and agreed upon by both parties. In such cases a motion for a new trial is not necessary. Brown v. Mott, 22 Ohio St. 149; McGonnigle v. Arthur, 27 Ohio St. 251, 257.
Having disposed of these questions of practice, we come now to the real contention in the case. The administrator of the estate of Mrs. Hinton claims that the children under 15 years of age are entitled under the statute to have set off to them a year's support and other personal property out of the estate of their mother, as well as out of the estate of their father,-that is, that they are entitled to such allowance out of each estate; while the guardian of Maud claims that the children under 15 years of age are entitled to such year's support and other personal property out of the estate of the father only, and, having had set off to them a year's support and other personal property, not deemed assets under the statute, out of the estate of their father they are not entitled to a second such allowance out of the estate of their mother, even though she died possessed of a separate estate. The first statute in this state providing for a year's support was section 43 of the act relating to the administration of estates of deceased persons, passed March 23, 1840 (Swan & C. Rev. St. p. 574), and provided as follows: ‘ When a man, having a family, shall die leaving a widow or a minor child, the following articles shall not be deemed assets.’ Then follows a list of personal property. This section 43 was amended March 12, 1861 (58 Ohio Laws, p. 45), and provided that, ‘ when any man shall die leaving a widow or minor child under the age of fifteen years,’ etc. It changed the list of property not to be deemed assets, and for the first time provided for property to the amount of $100 to be retained by the widow and children. This section 43 was again amended April 9, 1863 (60 Ohio Laws, p. 67), so as to read as follows: ‘ That when any person shall die leaving a widow or minor child under the age of fifteen years, the following...
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