Pfau v. Moseley
| Decision Date | 28 December 1966 |
| Docket Number | No. 40031,40031 |
| Citation | 222 N.E.2d 639,9 Ohio St.2d 13 |
| Parties | , 38 O.O.2d 8 PFAU, Admr., Appellant, v. MOSELEY, Appellee. In re ESTATE of MOSELEY. |
| Court | Ohio Supreme Court |
Syllabus by the Court
Where an authenticated copy of a will, executed and proved according to the laws of the state of the decedent's domicile, has been admitted to record pursuant to Section 2129.05, Revised Code, and where it is not established that the widow who was domiciled in that state had claimed anything under that will or otherwise elected to take thereunder and where the testator owned real estate in Ohio at his death, such widow has the right, with respect to that Ohio real estate, to elect not to take under the testator's will but to take under the Ohio statute of descent and distribution (Section 2105.06, Revised Code), even though no such election is permitted by the law of the state of the testator's domicile at death.
On April 9, 1963, an authenticated copy of the last will and testament of William E. Moseley was presented to the Probate Court of Hamilton County and was admitted to record pursuant to Section 2129.05, Revised Code.
On April 15, 1963, Alfred Pfau was appointed and qualified as ancillary administrator with the will annexed.
On June 11, 1963, an application was filed on behalf of the testator's widow for issuance of a commission to take the widow's election as to whether she would take under the will or under the statute of descent and distribution, and such a commission was issued.
On July 1, 1963, the commissioner filed his report, and the widow filed a written election not to take under the will but to take under the provisions of Section 2105.06 of the Revised Code ().
On September 17, 1963, the ancillary administrator filed a motion to strike that election from the docket and declare that election null and void.
At the hearing, the following statement of facts was agreed upon:
'William E. Moseley died in 1961, domiciled in New Jersey. His widow, Margaret A. Moseley, was also domiciled in the state of New Jersey at the time of her husband's death, and still is domiciled there. The original probate of Mr. Moseley's will was had in New Jersey. Mrs. Moseley took action to contest and prevent the probate of the will but the validity of the will was sustained by the New Jersey courts on February 13, 1963. Under said will there was bequeathed to the widow a monthly income of $25 for life.
'The laws of New Jersey do not give a surviving spouse the right to elect whether to take under the will or under the law and in said state the widow must take what, if anything, the will gives her. 1 The estate in Ohio consists of real estate mainly, together with some rent due.
There was also evidence proffered by the ancillary administrator that the widow as survivor of the testator succeeded to over $3,214.43 in bank accounts in the name of the testator and of the widow, and to $30,476.91 of real estate in New Jersey held by the testator and the widow as tenants by the entirety.
The record indicates that the Ohio real estate owned by testator at his death had a value of about $20,000.
It is conceded that testator died without issue.
The Probate Court overruled the motion to strike the widow's election and held that the widow was entitled to one-half of the testator's real estate situated in Ohio.
On appeal, the Court of Appeals affirmed.
The cause is now before this court on appeal from the judgment of the Court of Appeals, pursuant to the allowance of a motion to certify the record.
Alfred Pfau, Cincinnati, for appellant.
James H. Eastland, Jr., Cincinnati, for appellee.
The order of the Probate Court deals only with Ohio real estate. No one before the court is complaining because it did not also deal with personal property. The only reference in the record to personal property is to rents received from the Ohio real estate. Such rents, if collected after the testator's death, would represent and be disposed of as real estate. Barlow v. Winters National Bank & Trust Co., Trustee (1945), 145 Ohio St. 270, 61 N.E.2d 603, 160 A.L.R. 423. There is nothing in the record tending to show that such rents were not collected after the testator's death. Therefore, we are not required in the instant case to express any opinion and we express none on whether the widow's election in Ohio would have any effect whatever on personal property owned by testator at his death.
Also, there is nothing in the record to indicate that the widow has or will make any claim to anything under the testator's will. Cf. Kinney, Election in Ohio by a Surviving Spouse (1940), 34 et seq.; annotation, Conflict of Laws regarding election for or against will (1936), 105 A.L.R. 271, 280; Goodrich, Conflict of Laws (Scoles Ed. 1964), 338, Section 170; Reporter's note to Restatement of the Law 2d, Conflict of Laws, Tentative Draft No. 5, Section 253 (1959).
Thus, the question to be determined may be stated as follows:
Where an authenticated copy of a will executed and proved according to the laws of the state of the decedent's domicile has been admitted to record pursuant to Section 2129.05, Revised Code, and where it is not established that the widow who was domiciled in that state has claimed anything under that will or otherwise elected to take thereunder and where the testator owned real estate in Ohio at his death, does such widow have the right, with respect to that Ohio real estate, to elect not to take under the testator's will but to take under the Ohio statute of descent and distribution (Section 2105.06, Revised Code) even though no such election is permitted by the law of the state of the testator's domicile at death. 2
For the following reasons, our conclusion is that she does. Cf. Crabbe, Admr. v. Lingo (1946), 146 Ohio St. 489, 495, 67 N.E.2d 1, where it was assumed that a nonresident surviving spouse could elect not to take under a will probated in another state when ancillary administration was being had but it did not appear that such election could not have been made in the state where the will had been probated.
Appellant's argument may be summarized as follows:
1. 'The right of a surviving spouse to elect' to take or elect not to take under the will of her deceased husband is 'unknown to the common law.'
2. The statutes of Ohio providing therefor 'are in derogation of a centuries old right to receive property under a will and should, therefore, be strictly construed against' giving such surviving spouse a so-called right to elect against the will.
3. No Ohio statute expressly gives a surviving spouse the right to so elect with regard to a will admitted to probate in another state and thereafter admitted to record in Ohio.
4. Section 2107.39, Revised Code, applies only '(a)fter the probate of a will.'
5. A will cannot be probated in Ohio if it has previously been admitted to probate in the state of the testator's domicile. Section 2107.11, Revised Code.
6. There is a specific provision for election in the instance of a will made in a country other than the United States and its territories and admitted to record in Ohio (Section 2129.07, Revised Code) but no comparable provision for a will made in another state and so admitted.
7. To allow election by a surviving spouse in Ohio against a will probated in another state where the testator and the surviving spouse were domiciled and where such spouse had no right to elect against the will would (a) create needless conflicts with administration of estates by the domiciliary state and (b) frustrate the intentions of those domiciled in the other state who would be familiar with its law and not with the law of Ohio.
The last argument is more than outbalanced by the desirability of having the title to Ohio real estate determined, where possible, by Ohio statutory provisions rather than by the statutes and law of another state. Such other state can have no interest in Ohio land comparable to the interest that Ohio has in that land. Those who own, acquire and dispose of Ohio land must necessarily look to the law of Ohio. For Ohio to then permit the law of another state to govern the title to Ohio land would eliminate the certainty, uniformity, predictability and convenience that there would be if it made that title dependent only upon its own internal law. The stipulation made in the instant case is a good example of the confusion and uncertainty that would be generated. See footnote 1, supra, and related text.
If Ohio internal law were held not to apply, no one would seriously contend that the law of any state other than the domicile of the decedent should govern the dower interest of a surviving spouse in Ohio real estate, any interest in Ohio real estate provided by statute in lieu of the dower interest therein, or the right of such spouse to protect such interests in Ohio real estate by electing not to take under a will. However, domicile is not always readily determinable, especially now that it has become so easy for people to move from a home in one state to a home in another state and to own and maintain homes in more than one state.
To permit the law of a state other than the state where land is located to govern or be an important factor in determining the title to such land would destroy the certainty and convenience so desirable in determining the title to land.
This desire for certainty and convenience is a strong reason for...
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