OPINION
By GEIGER, J.
This is an appeal on questions of law from a judgment of the Probate Court in favor of plaintiff.
The legal question for determination appears from the pertinent parts of the agreed statement of facts. Edgar Goodfellow died November 30, 1938, testate, leaving surviving him his widow, the plaintiff. The Goodfellows had no children. Nancy T. Goodfellow, mother of testator, died March 20, 1938, eight months before the testator. The testator left no children, brothers or sisters or parents surviving him or lineal descendants of any of them. All the defendants, excepting the Fifth Union Trust Company of Cincinnati, Ohio, trustee, are lineal descendants of testator’s paternal or’maternal grandparents. The will of decedent with two codicils was probated December 21, 1938. Testator by the will of date October, 1928, by Item II thereof, made a specific bequest of $5,000.00 to his mother, by Item III gave certain personal effects to his wife, and by Item IV the residuary estate was placed in trust, and the First National Bank & Trust Company of Springfield, Ohio, named trustee. Testator directed that the trustee pay to his widow the sum of $50.00 per week, and gave it authority in its discretion to pay a greater sum for the benefit of the widow, if required. The item further provided that upon the death of Stella Goodfellow the trust should terminate and the trustee pay, transfer and deliver over the trust funds to testator’s mother, Nancy T. Goodfellow. The will made no other or further provision.
The first codicil of date May 29, 1931, revoked the $5,000.00 bequest made by testator to his mother, and provided that it should become a part of his residuary estate and pass by the terms of his will.
At the time plaintiff filed her petition she had not made her election under [571]*571§10504-55 GC, and sought a declaratory judgment determining her rights under the will. Subsequently, plaintiff, as surviving spouse of defendant, made her election to take under the statute of descent and distribution.
It is the claim of the plaintiff, which was supported by the trial judge, that, by virtue of her election under §10504-55 GC, she took one-half of decedent’s estate, and that by virtue of §10503-4(4) GC, she took the whole of the remaining one-half of said estate as the surviving spouse. The bequest to testator’s mother having lapsed, there are no children of testator or their lineal descendants and no surviving parent or parents of the intestate.
It is the claim of defendants-appellants that the widow by her election under §10504-55 GC, is' limited to not to exceed one-half of the net estate of decedent.
We have been favored by the extended and well considered decision of the trial judge, who was of opinion that the case of Miller v Miller, 129 Oh St 230, was decisive of the question presented in favor of the plaintiff, and that it inferentially overruled the case of Zizelman v Mayer, 27 Oh Ap 512, upon which defendants placed considerable reliance.
Sec. 10504-55 GC, provides that after the probating of the will a citation shall issue to the surviving spouse, to' elect whether to take under the will or under the statute of descent and distribution, “but in the event of election to take under the statute of descent and distribution, such spouse shall take not to exceed one-haif of the net estate”.
It is agreed that the spouse here elected “to take under the statute of descent and distribution”. The question is — does the further language “such spouse shall take not to exceed one-half of the estate” define and limit the extent to which she may take at all, or — is she entitled as an heir-at-law under §10503-4 GC, to take all of the' remaining one-half of the estate of decedent? Flaintiff’s claim is that upon the death of decedent’s mother the residuary remainder given to her by the will lapsed, and that after the election of plaintiff to take her share under §10504-55 GC, the whole of decedent’s estate became undisposed of and was intestate property, and that the devolution of the other half was controlled-by §10503-4 GC. j
Counsel for the respective partiesl present considerable argument purposed to establish that the intent of the testator may be determined from the language of the will and codicils, the circumstances attending the execution and subsequent thereto.
We are satisfied that, on the question which we are called upon to decide, we receive no assistance whatever from the will itself. It may be urged with much force that the testator, having spoken specifically respecting the extent to which he desired his widow to share in his estate it would be foreign to his intention to permit her to receive a greater part. On the other hand — it is said that testator indicated a purpose to give his estate to his wife because the relatives who now claim are only remotely related to him and he revoked the $5,000.00 bequest to his mother, placed it in his residuary estate, made no addition to or modification of his will after his mother’s death. Both of these claims are conjectural and not at all helpful in the problem with which we are confronted.
The matter to be determined is a question of law and although the assignments of errors are numerous they may be encompassed in the proposition that the judgment is contrary to law.
Much time and attention in the later briefs are given to a controversy on the question of the intestacy of decedent.
There is no question that he died testate, but the remainder in h>s residuary estate having lapsed it must pass as [572]*572intestate property, and if the widow is not restricted by her election, she will also take as an heir-at-law.
(To this point the above decision was written by Hornbeck, PJ., who now finds himself unable to concur in the , decision reached by the majority of the Court. From this point the opinion is written by Geiger, J., Hornbeck, PJ. writing a dissent).
The proper solution of the question presented in this case depends upon the correct interpretation of §10504-55 GC, relating to the election by a surviving spouse. There is no difficulty with the section except as to what may be the correct interpretation of the provision “but in the event of election to take under the statute of descent and distribution such spouse shall take not to exceed one-half of the net estate”. Must this provision be interpreted as controlling the final devolution of the estate of a testator who has made a provision for the surviving spouse, which is specifically rejected, as in this case?
Sec. 10504-61 GC, provides that if the surviving spouse elects to take under the will such spouse shall be thereby barred of all rights to the intestate’s share of the estate and shall take under the will alone, unless it plainly appears that the provision was intended to be in addition to the intestate estate. The spouse in this case refused to take under the will.
Before we can correctly determine the effect of the positive provision of §10504-55 GC, that upon election to take under the statute such spouse shall take “not to exceed one-half of the net estate”, we must determine, if possible, to what the “net estate”, mentioned in the statute, refers.
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OPINION
By GEIGER, J.
This is an appeal on questions of law from a judgment of the Probate Court in favor of plaintiff.
The legal question for determination appears from the pertinent parts of the agreed statement of facts. Edgar Goodfellow died November 30, 1938, testate, leaving surviving him his widow, the plaintiff. The Goodfellows had no children. Nancy T. Goodfellow, mother of testator, died March 20, 1938, eight months before the testator. The testator left no children, brothers or sisters or parents surviving him or lineal descendants of any of them. All the defendants, excepting the Fifth Union Trust Company of Cincinnati, Ohio, trustee, are lineal descendants of testator’s paternal or’maternal grandparents. The will of decedent with two codicils was probated December 21, 1938. Testator by the will of date October, 1928, by Item II thereof, made a specific bequest of $5,000.00 to his mother, by Item III gave certain personal effects to his wife, and by Item IV the residuary estate was placed in trust, and the First National Bank & Trust Company of Springfield, Ohio, named trustee. Testator directed that the trustee pay to his widow the sum of $50.00 per week, and gave it authority in its discretion to pay a greater sum for the benefit of the widow, if required. The item further provided that upon the death of Stella Goodfellow the trust should terminate and the trustee pay, transfer and deliver over the trust funds to testator’s mother, Nancy T. Goodfellow. The will made no other or further provision.
The first codicil of date May 29, 1931, revoked the $5,000.00 bequest made by testator to his mother, and provided that it should become a part of his residuary estate and pass by the terms of his will.
At the time plaintiff filed her petition she had not made her election under [571]*571§10504-55 GC, and sought a declaratory judgment determining her rights under the will. Subsequently, plaintiff, as surviving spouse of defendant, made her election to take under the statute of descent and distribution.
It is the claim of the plaintiff, which was supported by the trial judge, that, by virtue of her election under §10504-55 GC, she took one-half of decedent’s estate, and that by virtue of §10503-4(4) GC, she took the whole of the remaining one-half of said estate as the surviving spouse. The bequest to testator’s mother having lapsed, there are no children of testator or their lineal descendants and no surviving parent or parents of the intestate.
It is the claim of defendants-appellants that the widow by her election under §10504-55 GC, is' limited to not to exceed one-half of the net estate of decedent.
We have been favored by the extended and well considered decision of the trial judge, who was of opinion that the case of Miller v Miller, 129 Oh St 230, was decisive of the question presented in favor of the plaintiff, and that it inferentially overruled the case of Zizelman v Mayer, 27 Oh Ap 512, upon which defendants placed considerable reliance.
Sec. 10504-55 GC, provides that after the probating of the will a citation shall issue to the surviving spouse, to' elect whether to take under the will or under the statute of descent and distribution, “but in the event of election to take under the statute of descent and distribution, such spouse shall take not to exceed one-haif of the net estate”.
It is agreed that the spouse here elected “to take under the statute of descent and distribution”. The question is — does the further language “such spouse shall take not to exceed one-half of the estate” define and limit the extent to which she may take at all, or — is she entitled as an heir-at-law under §10503-4 GC, to take all of the' remaining one-half of the estate of decedent? Flaintiff’s claim is that upon the death of decedent’s mother the residuary remainder given to her by the will lapsed, and that after the election of plaintiff to take her share under §10504-55 GC, the whole of decedent’s estate became undisposed of and was intestate property, and that the devolution of the other half was controlled-by §10503-4 GC. j
Counsel for the respective partiesl present considerable argument purposed to establish that the intent of the testator may be determined from the language of the will and codicils, the circumstances attending the execution and subsequent thereto.
We are satisfied that, on the question which we are called upon to decide, we receive no assistance whatever from the will itself. It may be urged with much force that the testator, having spoken specifically respecting the extent to which he desired his widow to share in his estate it would be foreign to his intention to permit her to receive a greater part. On the other hand — it is said that testator indicated a purpose to give his estate to his wife because the relatives who now claim are only remotely related to him and he revoked the $5,000.00 bequest to his mother, placed it in his residuary estate, made no addition to or modification of his will after his mother’s death. Both of these claims are conjectural and not at all helpful in the problem with which we are confronted.
The matter to be determined is a question of law and although the assignments of errors are numerous they may be encompassed in the proposition that the judgment is contrary to law.
Much time and attention in the later briefs are given to a controversy on the question of the intestacy of decedent.
There is no question that he died testate, but the remainder in h>s residuary estate having lapsed it must pass as [572]*572intestate property, and if the widow is not restricted by her election, she will also take as an heir-at-law.
(To this point the above decision was written by Hornbeck, PJ., who now finds himself unable to concur in the , decision reached by the majority of the Court. From this point the opinion is written by Geiger, J., Hornbeck, PJ. writing a dissent).
The proper solution of the question presented in this case depends upon the correct interpretation of §10504-55 GC, relating to the election by a surviving spouse. There is no difficulty with the section except as to what may be the correct interpretation of the provision “but in the event of election to take under the statute of descent and distribution such spouse shall take not to exceed one-half of the net estate”. Must this provision be interpreted as controlling the final devolution of the estate of a testator who has made a provision for the surviving spouse, which is specifically rejected, as in this case?
Sec. 10504-61 GC, provides that if the surviving spouse elects to take under the will such spouse shall be thereby barred of all rights to the intestate’s share of the estate and shall take under the will alone, unless it plainly appears that the provision was intended to be in addition to the intestate estate. The spouse in this case refused to take under the will.
Before we can correctly determine the effect of the positive provision of §10504-55 GC, that upon election to take under the statute such spouse shall take “not to exceed one-half of the net estate”, we must determine, if possible, to what the “net estate”, mentioned in the statute, refers. Does it mean the “net estate” that is disposed of by the will, or does it mean the entire “net estate” of the testator — irrespective of whether he has attempted to or has in fact disposed of his entire estfue, or has, due to lapses or for other i casons, in fact only disposed of a part of his estate leaving the rest to be disposed of as the law provides in case of intestate property?
The court below in his very carefully considered opinion states, in substance, that it is very difficult for him to conceive why the testator would want his estate to go to very remote relatives rather than to his wife who had lived with him for many years and assisted him in the accumulation of his wealth. The court was of the opinion that the case of Zizelman v Mayer, 27 Oh Ap 512, is no longer the law of Ohio, in view of the decision of the Supreme Court in the case of Miller v Miller, 129 Oh St 230. The court arrives at the conclusion that by virtue of Miller v Miller, there is no question that the wife takes one-half of the net estate as surviving spouse and not under the statute of descent and distribution— §10503-4 GC. The court concludes that under the case of Oglesbee v Miller, 111 Oh St 426, the widow is an heir of her deceased husband.
To whatever extent the judgment of the court below may have been influenced by his conclusion that the testator did not intend to prefer his distant relatives over his living wife, that conclusion would, in our judgment, be without weight, in view of the positive provisions of the statutes that she should, under the condition of her election, be confined to one-half the net value of the estate.
The view of the court, however, does give us occasion to examine the legislative intent.
There is no question that the testator died testate, but the remainder of the residuary estate having lapsed, it must pass as intestate property.
In Miller v Miller, 129 Oh St 230, the court holds that the phrase used in §10504-55 and §10504-60 GC, does non mean that the surviving spouse is actually placed within the operation of the statute of descent and distribution, but is used as merely definitive or descriptive of the share to be taken by the surviving spouse within a limitation of not to exceed one-half of the estate, and that the actual taking of a. share by the surviving spouse is under [573]*573810504-55 and §10504-60, and that §10503-5 relating to the descent of an estate has no application.
It will be at once perceived that the case of Miller v Miller does not have under examination a case such as the one at bar, but was exclusively concerned with the question as to whether the estate passed under the half and half statute.
It is proper to consider the fact that the election statute is within the chapter covering wills, and might, therefore, well be considered as having reference exclusively to the disposition of testate property. If there be other legal principles relating to devolution of property, whether testate or intestate, which conflict with the statutory provision as to the right to inherit not exceeding one-half of the estate, then we can properly resort to such principle — especially if we are dealing with intestate property.
It is well to examine fundamental principles which have been followed in this state for many years.
Crane v Doty, 1 Oh St 279, contains an interesting discussion of the principles which control the devolution of property. It is there held—
“A testator can not, by any words of exclusion used in his will, disinherit one of his lawful heirs, in respect to property not disposed of by his will. Such words can not be used to control the course of descent, so as to carry the property to his other heirs.
They can not be used to raise an estate by implication in favor of his other heirs; there being no attempt in the will to dispose of the property or to create any interest therein.” (Emphasis ours).
The case is interesting. Briefly, the testator made certain bequests to his children. The will contained no residuary clause. After the payment of the debts and the specific bequests, there remained a considerable amount of his estate undisposed of. The testator provided as to certain of his children that after being paid the specific bequest theji should receive “no more of my estate”. The court points out that the law has always allowed to every person of mature age absolute dominion over all he may possess, to dispose of it by last .will and testament, saving the rights of the widow and creditors, but it is very clear that even the expressed intention of the testa-, tor can not be regarded in the absence-of such disposition. If the. owner fails: to designate who shall succeed to his) property, the law steps in and supplies! the omission and casts it upon the1 heir-at-law.
“That the expressed intention of the testator that his heir should not take, can not be regarded, in the absence of any other disposal of the property, seems to have been early settled in England * * * . It may be disposed of by will; but if it is not, the law disposes of it to all the children alike. All dominion of the owner over it ceases with his life. To allow a testator to leave his property undisposed of, and by will to control the course of descent and distribution, would be to allow him to repeal the law of the land. It must go by devise or descent; and in either mode it goes entirely uncontrolled by the other; and it is impossible to con-' ceive of an estate created by a mixture of the two.”
We. will not quote further from this case as wre deem it of sufficient importance to receive definite attention.
See Bane v Wick, 14 Oh St 505.
This case is of much interest and so nearly fits the situation that we refrain from quoting, with the hope that it may be read. We realize that it was decided before the limitation now in §10504-55, and that it may well be urged that it is without authority under the present statutes. • Nevertheless, we are of the opinion that the principles enunciated are applicable and that its authority may not be likely disregarded.
Mathews v Krisher, 59 Oh St 562, opinion by Shauck, J., holds the stat[574]*574ute of descent operates upon all intestate property, and the course which it indicates can be changed only by a testamentary disposition. This case is also of prime importance as establishing principles which seem to us to apply to any intestate property that may be involved in this action.
Oglesbee v Miller, 111 Oh St 426, holds:
“2. All intestate property passes by virtue of and in accordance with the statute of descent and distribution: the course thereby prescribed can be changed only- by testamentary disposition. (Mathews v Krisher, 59 Oh St 562, approved and followed.)
3. Personal property undisposed of by will passes to the husband, where the testatrix left no children or their legal representatives, even though by provision of the will such property had been bequeathed to the husband for and during his natural lifetime, or so long as he remained unmarried.”
These cases seem to us to be of compelling importance in the devolution of intestate property such as that involved in this estate. We would have no difficulty in finding that they were ■applicable and would cast the intestate property of the testator upon his spouse if it were not for the limiting provisions of §10504-55 GC, to the effect that such spouse shall take “not to exceed one-half the net estate”.
If the Legislature had intended that the limitation relating to the widow’s election should render inoperative the principles of the last two cases and those further cited, it would have so indicated in the amendment.
We cite the following cases as appropriate to the question — some sustaining our position and some opposing it:
Miller v Miller, 49 Oh Ap 220.
Armstrong v Armstrong, 11 O. C. C. (NS 474.
Zizelman v Mayer, 27 Oh Ap 512.
We find an interesting editorial by Lawrence U. Jeffries in the Cincinnati Law Review, Volume 2, p. 310, as to the effect of an election to take against a will on a relict spouse’s right as an heir-at-law. The writer analyzes and criticizes the decision of Zizelman v Mayer, 27 Oh Ap 512. While this is not a decision of a court, it presents very cogent reasons why the case cited is not a correct exposition of the law.
We think that the Legislature in amending the statutes so as to comply with the new Probate Code and the new statutes of descent and distribution, placed the limitation of one-half the net estate in the section to take the place of those provisions which have been extant in reference to the effect of rejection of a provision of the will which at various times gave the widow the right to be endowed of the lands of her husband upon rejection of the provisions of the will or the right to take that portion of the - estate had the husband died intestate leaving children. Due to the fact that dower has been abolished, the provision as to what the widow would take has been altered to harmonize with the statute as amended. At the time of the decision of Miller v Miller, the effect of the failure to elect within the statutory time was a conclusive presumption to an election to take under the statute of descent and distribution. Since that case the statute (§10504-60) has been amended so that it now provides that if the spouse fails to make the election such spouse “shall be conclusively presumed to have elected to take under the will”. In other words, when Miller v Miller was decided, the presumption was that the spouse failing to elect should be conclusively presumed to have elected to take under the statute of descent and distributipn. Now the presumption is that she takes under the will.
[575]*575[574]*574Should we hold that the remote next-of-kin should inherit the balance of the property after the wife has taken one-half, we are confronted with numerous inconsistencies. Sec. 10503-4 GC, subdivision 4, provides that if there are no children and no surviving parent [575]*575then “the whole to the surviving spouse”. Is this section to be discarded because of the provision in the election section that the spouse should take only one-half of the net estate? That would be to repeal the provisions of §10503-!, and change the devolution of the property through an act of a disappointed spouse rather than by the act of the testator himself. This would be contrary to the holding in Crane v Doty, 1 Oh St 279, where the testator definitely endeavored to limit the amount of the estate to go to certain of his children.
The question might arise as to what would have happened had the widow in this case elected to take under the will. To whom would the property which became intestate by the death of the testator's mother have gone? Certainly there could have been no intention upon the part of the testator that it would go to a group of heirs remotely related to him wiio were in a classification of §10503-4, more remote than subdivision 4, which provides that it should go to his wife.
His relatives now seeking one-half of the estate are remote, none being closer than second cousins. His wife might have been, as a matter of fact, his own second cousin. Could it then be said that because of this exclusive provision ox the statute that she could not inherit from her husband on account of consanguinity which made her equally related to him with the others who seek a portion of his estate?
It might well happen that at the time the testator made his will he made provisions for his wife unsatisfactory to her and also provisions for his then living child or children. Such child or children may predecease him, thus lapsing the legacy and the widow would thereby be forbidden to take any more than one-half of his estate and the balance of it be distributed to remote heirs, simply because the widow may not have been satisfied with the provisions made for her in relation to her then living children. Such a situation would be intolerable.
We think the solution to this whole matter is that it relates entirely to testamentary disposition of estates, its purpose being to limit a widow who declmes to take the provision made by her husband to not more than one-half of the estate in lieu of the provision made for her in the rejected will, as against the other devisees and the legatees named in the will who may be children of herself and her deceased husband or' other designated beneficiaries.
If we hold that the provision of this statute relates to all intestate property and permits parties remotely related to the testator to come in and take a part of his estate to the exclusion of his wife, who has a special priority over such remote relatives by virtue of subdivision 4 of a statute which definitely provides for descent and distribution, we have applied the provisions of §10504-55 in a manner never intended by the Legislature, in that it provides a devolution of a decedent’s property in a way never intended by him and not so disposed of by a will and never so disposed of by the statute until the intervention of the election of the widow. This would be quite out of harmony with the rules announced in Crane v Doty and in Bane v Wick, supra.
Judgment of the Court below affirmed. Cause remanded.
BARNES, J., concurs in judgment.
HORNBECK, PJ., dissents.