In re Est. of McMillan

18 Ohio C.C. Dec. 645, 8 Ohio C.C. (n.s.) 294

• Court: Muskingum Circuit Court
• Decided: June 15, 1906
• Status: Published

Opinion

McCARTY, J.

This matter comes before us on appeal from the common pleas and probate courts.

The statute authorizes certain property to be held exempt by a widow in her own name. This the appraisers of the estate of Diwer McMillan failed to do in the first instance, and being called together again and instructed as to their duties, they went out to make a different appraisement; hence the question arises as to the rights of the widow and the rights of the executors under the will. A demurrer has been interposed to the answer of the executors by Mary A. McMillan, by Eli Border, her guaSdian, which answer reads as follows:

“Now come the executors of the last will and testament of the said Diwer McMillan, deceased, and for answer to the application of Mary A. McMillan, by Eli Border, her guardian, to recall the appraisers, etc., of said estate and make allowances under the provisions of Rev. Stat. 6038, 6039, 6040, 6041 (Lan. 9578, 9579, 9580, 9581), say:

1 ‘ That the said Mary A; McMillan on the fourteenth day of October, 1897, without cause deserted her husband and lived apart and separate from her husband during the remainder of his life-time, to wit, seven years; that said separation was a voluntary act of the said Mary A. McMillan, and was misconduct on her part, and the family relationship of husband and wife did not exist at the time of the death of the said Diwer McMillan, and had not from said fourteenth day of October, 1897, and that the right of the widow to said year’s allowance does not exist, for the reason that the family relation as above stated did not exist at the time of the death of the said Diwer McMillan, and for the further reason that an agreement was made between the said Diwer McMillan and the children of the said Mary A. McMillan, on the twenty-third day of October, 1897, whereby it was agreed that the said Diwer McMillan should be relieved of any claim on account of support of said Mary A. McMillan so long as she might remain away from his home. Wherefore, •these executors pray that the inventory filed by said appraisers be approved and that the application for recalling the appraisers, etc., be overruled and for such other relief as is proper.”

To- this answer a demurrer was interposed which raised the question as to whether the answer sets forth facts sufficient to constitute a defense on the part of the appraisers,for not setting apart a year’s support.

This brings us to another question, viz., Is the widow entitled, in lier own right, to certain things without administration; has she,a right to a year’s support and certain articles of personal property? The question was fully argued, heard, and disposed of in the probate court, and a petition in error was filed in the common pleas court, which court sustained the demurrer.

Revised Statutes 6038 (Lan. 9578) is in this language:

“When any person shall die, leaving a widow, or minor child, or -children, under the age of fifteen years, the following property shall not be deemed assets nor administered as such, but shall be included and stated in the inventory of the estate and signed by the appraisers, without appraising the same:

“First — One family sewing machine, to be retained by said widow absolutely as her own property, and all spinning wheels, weaving looms, and stoves set up and kept in use by the family.

‘ ‘ Second — The family bible, family pictures, and- school books used by or in the family of the deceased, and books, not exceeding one hun-dred dollars in value, which were kept and used as part of the family library before the decease of such person.

“Third — One cow, or if there be no cow, household goods, to be selected by the widow, or if there be no widow, by the guardian or next friend of such minor child or children, not exceeding forty dollars in value, or if there be no household goods such as the widow or guardian or next friend may desire to select, then forty dollars in money; all sheep to the number of twelve, their valuation not to be greater than seventy-five dollars, and the wool shorn from them, and the yarn and cloth manufactured by the family; all flax in possession of the family intended for the use thereof, and yarn or thread cloth manufactured therefrom.

“Fourth — All the wearing apparel and ornaments of the family .and of the deceased, all the beds, bedsteads, and bedding, cooking utensils, and tableware necessary for the use of the family, one clock, one side-saddle, and any other articles.of personal property not to exceed one hundred dollars in value, which the widow, or if there be no widow, the guardian or next friend of such minor child or children, may select, to be valued by the appraisers. ’ ’

It is said here in argument that there was some controversy between husband and wife, and it was perhaps mutually agreed by them that they would live apart and not cohabit together as husband and wife any further, which they continued to do for about the period of seven years. It is contended that relations between them as parts of the same family ceased to exist, and it is also said that the wife at one time brought an action for divorce; there was an answer to this petition praying for •divorce, but there was never any divorce granted. Therefore, when this husband died, he left this woman as his widow, there being no legal separation, and as his widow she would be entitled to a year’s support and the articles of personal property as I have stated.

In the note under Rev. Stat. 6038 (Lan. 9578) is the following:

“The allowance to the widow for her support for the year, is such a debt against the estate of her husband that resort may be had, for the payment of the same against land conveyed away by the deceased for the purpose of defrauding his creditors.”

There are several decisions along this line, holding, in effect, that until a wife and a husband are divorced, the wife is, at the husband’s death, entitled to a year’s support and the articles of personal property mentioned in the statute.

We have, therefore, concluded that the answer set up by the executors does not constitute a defense to the cause of action stated in the application of Mary A. McMillan, and we shall affirm the decision of the common pleas court, and we sustain the demurrer to said answer.

Donahue and Taggart, JJ., concur.