14 N.E.2d 928
No. 26815Supreme Court of Ohio.
Decided April 27, 1938.
Wills — Election to take bars right to an intestate share, when — Section 10504-61, General Code.
Under the provisions of Section 10504-61, General Code (114 Ohio Laws, 357), if a surviving spouse elects to take under a will, such spouse shall be barred of all rights to an intestate share of the estate, and shall take under the will alone, unless it plainly appears from the will that the provision therein for the spouse was intended to be in addition to an intestate share.
APPEAL from the Court of Appeals of Cuyahoga county.
This action originated in the Court of Probate where the plaintiff filed a petition asking for a construction of her father’s will, and for a declaratory judgment determining the rights of all parties thereunder.
The will reads as follows:
“Santa Cruz, Calif. “R 1 — Box 302 C. “June 29, 1929.
“I, Warner L. Webster, being in good health and understanding of what the following is intended to convey, hereby cancel previous will deposited in County
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Recorder’s office, Cleveland, Ohio; I bequeath to my wife Ellen Coles Webster, the deed she gave me to 47 1/2 Acres in Santa Cruz Co. (not recorded by me.)
“I also bequeath to her (1/2) one-half interest in an 80 ft. lot on Detroit St. and Property Cor. Warren Rd. Clifton Blvd., both in the city of Lakewood, Ohio. The property last mentioned is leased on a (99) lease, so she is to have 1/2 (one-half) interest in said lease. To hold during her life time. The remaining one-half of these properties is to be placed in the hands of two trustees of the Ohio State University (and Mrs. Webster making a third trustee).
“The income of said 1/2 interests these trustees are to spend giving a 4 year course in said university to that one or as many as the fund will support at the most economical, yet healthful manner possible, of my children’s children or their descendants who are able to pass the entrance examinations. In case of more passing said examinations than the income will support, then the one or ones making the best showing to be first considered.
“At the death of Ellen Coles Webster then all her property so willed here is to be added to said scholarship fund. And Mrs. Webster’s place on the trustees to be filled by a vote of those who have benefited by this fund. In case they fail to agree the Probate Court of Cuyahoga county shall appoint one of the graduates so benefited.
“(Signed) Warner L. Webster.
“Witness — “Elva Coventry — Maryville, Tenn.”
The Court of Probate held that the trust which the testator attempted to create is void, and that the widow, the appellant, will have no interest in the trust property in the event that she elects to take under the will rather than under the statute.
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Upon appeal to the Court of Common Pleas the judgment of that court was the same.
This judgment was affirmed upon appeal to the Court of Appeals on questions of law.
The case is in this court by reason of the allowance of a motion to certify.
Messrs. Kastriner, Schweid Addams, Messrs. Ford Reece an Messrs. Miller, Kehres, Roller Kloppman, for appellees.
Mr. Richard de Nobel, for appellant.
WEYGANDT, C.J.
A reading of the will discloses the clear intention of the testator to give his widow a life estate in an undivided one-half interest in the Lake-wood property, and the other half of this property was intended to be held in a trust which the testator has attempted to create.
All parties to this action concede that the attempted trust is invalid because it is violative of Section 10512-8, General Code, which is the Ohio statute against perpetuities. Hence the decisive question here presented is as to the descent of the property that is intestate by reason of the fact that it is involved in the invalid trust. If the widow should elect to take under the will instead of under the statute, can she share in the intestate property?
This question is answered by the provisions of Section 10504-61, General Code (114 Ohio Laws, 357), which then read as follows:
“If the surviving spouse elects to take under the will, such spouse shall be thereby barred of all right to an intestate share of the estate, and shall take under the will alone, unless it plainly appears from the will that the provision therein for the spouse was intended to be in addition to an intestate share. But an election to take under the will does not bar the right to remain in the mansion of the deceased consort, or the
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widow to receive one year’s allowance for the support of herself and children, as provided by law, unless the will expressly otherwise directs.”
Many decisions are cited in the brief of the appellant, but they are of no assistance. All but one of them were announced before the enactment of this statute in the year 1931. It is the contention of the appellant that this recent statute relates to testamentary property alone. However, the language of this section is so clear and unmistakable as to require no interpretation. It provides simply that if the surviving spouse elects to take under the will, such spouse shall be thereby barred of all right to an intestate share of the estate. The meaning of this is plain, and it is emphasized by the further words that the spouse “shall take under the will alone, unless it plainly appears from the will that the provision therein for the spouse was intended to be in addition to an intestate share.” Likewise under the maxim expressio unius est exclusio alterius, further emphasis and clarity are impliedly furnished by the enumerated exceptions appearing in the next sentence to the effect that “an election to take under the will does not bar the right to remain in the mansion of the deceased consort, or the widow to receive one year’s allowance for the support of herself and children, as provided by law, unless, the will expressly otherwise directs.”
In view of the unambiguous and all-inclusive nature of this language this court is obliged to accord the statute full force and effect by holding that Section 10504-61, General Code, applies to all intestate personalty and realty in the testator’s estate. The judgment of the Court of Appeals must be affirmed.
Judgment affirmed.
MATTHIAS, DAY, ZIMMERMAN, WILLIAMS, MYERS and GORMAN, JJ., concur.
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