Nichols v. French

• Citation: 83 Ohio St. 162,93 N.E. 897
• Parties: NICHOLS v. FRENCH.
• Decision Date: 20 December 1910
• Court: United States State Supreme Court of Ohio

83 Ohio St. 162
93 N.E. 897

NICHOLS
v.
FRENCH.

Supreme Court of Ohio.

Dec. 20, 1910.

Error to Circuit Court, Portage County.

Proceedings by one French, administrator of James H. Nichols, for an order to sell realty to pay debts, in which decedent's widow interposed, claiming an allowance in lien of homestead. There was a judgment denying such allowance and awarding dower, and the widow brings error. Judgment denying an allowance in lieu of homestead affirmed, and judgment awarding dower reversed.

The record to be reviewed was made in the court of common pleas, to which an appeal had been taken from the probate court, and the record of the circuit court, where the former record was reviewed. The proceeding was instituted by the defendant in error, who alleges that he is the duly appointed and qualified executor of the estate of James H. Nichols, deceased, but, as no will appears in the record, we assume that he is the administrator of the estate of James H. Hichols. The proceeding was for an order to sell the real estate of the decedent to pay his debts; the personal estate being insufficient for that purpose. The plaintiff in error, Anna B. Nichols, is the widow of James H. Nichols. In her answer she waived the assignment of dower by metes and bounds and consented to the sale of the premises, and asked for the payment to her out of the proceeds of sale of $500 in lieu of a homestead, and also of the value of her dower in the entire proceeds of the sale, not diminished by the amount required to discharge the admitted lien of a mortgage upon the premises. Whether she is entitled to allowance in lieu of homestead and whether she is dowable of the entire proceeds, or only of the surplus remaining after the discharge of the mortgage, are questions controverted in the case.

The material facts are as follows: A former wife of James H. Nichols had died intestate and seised in fee of these lands, which thereupon descended to her two children. Thereafter James H. Nichols, father of the children, purchased the lands from them and executed the mortgage mentioned for the purchase money. Thereafter, on the 14th of November, 1899, he intermarried with the plaintiff in error, and they lived together upon the premises until May, 1905, when, in consequence of disagreements, they separated permanently, she going to reside with her parents, and not thereafter residing upon these premises. No children were born of this marriage. This proceeding was instituted February 9, 1909. The court of common pleas adjudged to the widow $500 in lieu of a homestead and dower in the entire proceeds of the sale. On a proceeding in error to the circuit court there was a reversal of the judgment making an allowance in lieu of a homestead, and an affirmance of that awarding her alimony in the entire proceeds of sale. Mrs. Nichols files a petition in error here, asking for a reversal of the judgment of the circuit court as to the allowance in lieu of a homestead, and the defendant in error files a cross-petition in error, asking a reversal of the judgment of the circuit court in awarding dower in more than the surplus.

Syllabus by the Court

When one dies intestate leaving a widow, who, having separated from him, is permanently residing elsewhere, and the...