Burlovic v. Farmer

162 Ohio St. (N.S.) 46
CourtOhio Supreme Court
DecidedJune 23, 1954
DocketNo. 33823
StatusPublished

This text of 162 Ohio St. (N.S.) 46 (Burlovic v. Farmer) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burlovic v. Farmer, 162 Ohio St. (N.S.) 46 (Ohio 1954).

Opinions

Hart, J.

The appellants, the administrator and the surviving spouse, first contend that Sections 8000 and 10512-3, General Code (Sections 3103.06 and 2131.03, Revised Code), when considered together, do not prevent Martha Burlovic, as surviving spouse, from avoiding or disafSrming, on the sole ground of infancy, the separation agreement.

Section 8000, General Code, provides as follows:

“A husband and wife can not by any contract with each other alter their legal relations, except that they may agree to an immediate separation, and make provisions for the support of either of them and their children during the separation.”

Section 10512-3, General Code, provides:

“Any antenuptial or separation agreement to which the decedent was a party shall be deemed valid unless action to set it aside is begun within six months after the appointment of the executor or administrator of the estate of such decedent, or unless within such period of time the validity of such agreement is otherwise attacked.”

The defendants claim further that Section 8023, General Code (Section 3109.01, Revised Code), providing that “all persons of the age of twenty-one years and upward, who are under no legal disability, shall be capable of contracting * * * and, to all intents and purposes be of full age,” is in effect a codification of the fundamental rule that the contracts of a minor are voidable subject to certain specific exceptions which have been created by express statutory enactment where public policy so demands. Among such specific exceptions may be noted Section 8023-1, General Code (Section 3109.2, Revised Code), allowing the purchasing and mortgaging of a home by a minor spouse who is a war veteran; and Section 11181, General Code (Section 3101.1, Revised Code), allowing females between the ages of 16 and 21 years and males between [50]*50the ages of 18 and 21 years to enter into marriage contracts with the consent of their parents. It is claimed that in such excepted cases the public welfare is served in the interest of family life as opposed to the effect of a separation contract.

As closely related to the above contention, the defendants claim also that Section 10512-3, General Code, above quoted, placing a limitation upon the rescission of a separation agreement does not apply to such an agreement which is void or voidable for reasons other than the minority of the parties, and that other reasons made the separation agreement of Martha Burlovic voidable and rescindable notwithstanding the limitation of the statute. They claim that they did not have an opportunity to show such voidability and rescind-ability for reasons other than minority because of the allowance of the motion for judgment in her favor.

The Court of Appeals took the position that although, under the provisions of Sections 8000 and 10512-3, General Code, a separation agreement between husband and wife is not voidable solely on the ground of the infancy of either party thereto, yet Section 10512-3, General Code, prescribes a period of time after the death of a party thereto within which the surviving spouse must assert the invalidity of a separation agreement and that an action for disaffirmance or rescission by such surviving spouse must be commenced within the period of time prescribed by this statute, or be forever barred. This court is in accord with this view.

In the first place, under the clear terms of the statute the scope of the personnel of those who may embrace its privileges and who likewise are subject to its limitations is without limitation or exception. It provides that "any antenuptial or separation agreement * * * shall be deemed valid unless action to set it aside is begun within six months * * * or unless within [51]*51such period of time the validity of such agreement is otherwise attacked.”

Defendants do not make any claim that an infant wife may not lawfully enter into a separation agreement or that separation agreements are not subject to legislative and judicial sanction. Their sole contention is that the limitation of Section 10512-3, General Code, does not apply where a party to such agreement is under 21 years of age. No legislative authority or judicial precedent is cited in support of this contention.

The very legislative setting of the statute in question negatives the idea that the limitation therein contained does not have universal application. Section 10512-3, General Code, is a part of the title which comprehends a separate and complete body of administrative law applicable to the settlement of decedents’ estates. The title contains its own separate statutory periods of limitations and saving clauses for persons under disability.

Section 10512-2, General Code, provides:

“The term ‘legal disability’ as used in this act shall include the following: (a) persons under the age of twenty-one years; (b) persons of unsound mind; (c) persons in captivity; (d) persons under guardianship of the person and estate or either.”

The General Assembly, in enacting the Probate Code and in making exceptions therein for persons under disability, -did so in clear, specific and unambiguous language thereby negativing any suggestion of exceptions by implication. Such express specific exceptions and provisions may be found in Sections 10501-21 and 10501-24, General Code, relating to service of summons; in Section 10504-32, General Code, relating to will contests ;• in Sections 10504-55 to 10504-65, General Code, relating to right of election of a surviving spouse; in Section 10502-2, General Code, relating to [52]*52dower right of a minor as a grantee of land; in Section 10503-16, General Code, relating to inheritance of a posthumous child; in Section 10504-49, General Code, relating to inheritance by after-born or pretermitted heirs; and in Section 10507-4, General Code, relating to notice concerning appointment of guardians and certain proceedings in the guardianship.

Section 10512-3, General Code, with its limitation, in line with other cognate sections of the Probate Code, was clearly enacted as a matter of necessity to facilitate the prompt settlment of estates and conformance to the time schedule provided therefor.

Furthermore, statutes of limitation, in line with the limitation contained in Section 10512-3, General Code, generally apply to and constitute a bar against all persons indifferently without regard to disabilities, unless such operation is excepted by an express saving clause. Favorite v. Booher’s Admr., 17 Ohio St., 548. And this is true whether the contractual right or obligation involved is void or voidable. For instance, where a forged will is admitted to probate, its validity can not be questioned by an action to contest after the expiration of the statutory period within which an action to contest it may be instituted, although other remedies may be available. See Seeds v. Seeds, 116 Ohio St., 144, 150, 156 N. E., 193, 52 A. L. R., 761, and Petitt v. Morton, 38 Ohio App., 348, 176 N. E., 494, affirmed 124 Ohio St., 241, 177 N. E., 591.

In the case of Favorite v. Booher’s Admr., supra,

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Related

Petitt v. Morton
176 N.E. 494 (Ohio Court of Appeals, 1930)
Kane v. Kane
67 N.E.2d 783 (Ohio Supreme Court, 1946)
Bolles v. Toledo Trust Co.
27 N.E.2d 145 (Ohio Supreme Court, 1940)
Radaszewski v. Keating
49 N.E.2d 167 (Ohio Supreme Court, 1943)
Seeds v. Seeds
156 N.E. 193 (Ohio Supreme Court, 1927)
Morton v. Petitt
177 N.E. 591 (Ohio Supreme Court, 1931)
Juhasz v. Juhasz
16 N.E.2d 328 (Ohio Supreme Court, 1938)

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Bluebook (online)
162 Ohio St. (N.S.) 46, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burlovic-v-farmer-ohio-1954.