Witteman's Estate, In re, 39008
| Decision Date | 07 July 1965 |
| Docket Number | No. 39008,39008 |
| Parties | , 32 O.O.2d 49 In re ESTATE of WITTEMAN. |
| Court | Ohio Supreme Court |
Syllabus by the Court
1. After nine months following the appointment of the fiduciary initially charged with the administration of an estate under a will, a surviving spouse, who remains alive and competent, is precluded by Section 2107.39, Revised Code, from making a valid election to take against the will of his deceased spouse, unless, before the expiration of the nine month period, he requests and is allowed further time for making the election.
2. If a surviving spouse remains alive and competent and, within nine months after the appointment of the first fiduciary charged with the administration of the estate under the will of the deceased spouse, no citation is issued and served upon him to elect whether to take under the will or under Section 2105.06, Revised Code, and within such nine-month period he also fails voluntarily so to elect, he will be conclusively presumed to have elected to take under the will, regardless of whether or not the inventory, appraisement and schedule of debts are filed.
Appellant Herbert A. Witteman is the surviving spouse of Blanche M. Witteman who died on December 26, 1960. By last will and testament she devised her real estate, upon which the parties resided at her death and which is the only substantial asset of the estate, to appellant for life 'or so long as he remains my widower.' After his death or upon his remarriage, it passes to testator's nephew, appellee James D. Doddroe, who was named in the will as executor, but never appointed as such.
Although filed in the Probate Court of Franklin County in January of 1961, the will was not admitted to probate until August 29, 1961. Prior to that date, Witteman served as special administrator of the estate, whereupon one H. P. Fagan was appointed administrator with the will annexed but resigned on December 4, 1961, without filing an inventory.
On December 15, 1961, the court appointed the present administrator w. w. a., John W. Dunkle, who filed the first inventory and appraisement in the estate on March 15, 1962. Appellee's exceptions to that inventory and appraisement were, on July 30, 1962, overruled by the Probate Court. Upon motion of the administrator and despite the absence of a schedule of debts, that court contemporaneously issued a citation under Section 2107.39, Revised Code, ordering the appellant to elect whether to take under the will or under Section 2105.06, Revised Code.
On August 15, 1962, appellant filed his election to take under the statute. On October 1, 1963, the court overruled a motion to strike the election from the files and granted the surviving spouse leave 'to file a waiver of right to elect accruing after the filing of the schedule of debts, or to refile his election after the schedule of debts had been filed herein.'
From this order, Doddroe appealed to the Court of Appeals which, in reversing the judgment of the lower court and remanding the cause for further proceedings, held that (1) the election having been made more than nine months after the appointment of the first administrator w. w. a., the surviving spouse was, under Section 2107.41, Revised Code, conclusively presumed to have elected to take under the will; and (2) the Probate Court erred in overruling the exceptions to the appraisement and 'denying a reappraisal.'
From that judgment, appellant surviving spouse appealed to this court, pursuant to the allowance of a motion to certify the record.
Jack Lett, Grove City, for appellant, Herbert A. Witteman.
Raymond A. Bichimer and William G. Corson, Columbus, for appellee, James D. Doddroe.
Those portions of the Ohio statutes relevant to the first question presented are:
Section 2107.39, Revised Code: * * *' (Emphasis added.)
Section 2107.41, Revised Code: 'If the surviving spouse * * * fails to make the election provided by section 2107.39 of the Revised Code * * * such spouse shall be conclusively presumed to have elected to take under the will * * *.'
The contrast between the present language and the relevant portions of the statutes as they read before 1932 is enlightening. 1 1 It appears that before 1932, the citation by the court, if issued at all, had to issue forthwith upon the probate of the will and, therefore, the periods within which the election was required to be made were definitely ascertainable.
The existing statutes, by comparison, fail expressly to prescribe a time limit beyond which a citation may not issue. And, by the use of the phrase, 'after the appointment of the executor or administrator.' they fail to contemplate the appointment of a special administrator or the appointment of successive administrators, as in this case, and thus fail to provide that degree of certainty and stability which the Recodification Act of 1953 sought to achieve.
Out of this confusion, the Court of Appeals decided that the election herein was invalid, since it was made more than nine months after...
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