Dueeey, P. J.
This is an appeal on questions of law from an order of the Probate Court of Franklin County. James M. Hengst, executor of the estate of Grace C. Nitschke, deceased, applied, under Section 2113.37, Revised Code, for authority to expend $3,000 as a payment to the Greenlawn Cemetery Association for a perpetual fund to care for the lot on which the decedent is buried. Authority was granted. Appellants are legatees under three specific bequests in the decedent’s will.
Section 2113.37, Revised Code, provides:
“The Probate Court in settlement of an executor’s or administrator’s account may allow as a credit to the executor or administrator a just amount expended by him for a tombstone or monument for the deceased and a just amount paid by him to a cemetery association or corporation as a perpetual fund for caring for and preserving the lot on which the deceased is buried. It is not incumbent on an executor or administrator to procure a tombstone or monument or to pay any sum into such fund.”
The decedent’s will left a large number of specific bequests. Items II, III and IY provide:
“Item
II. I give and bequeath to the Greenlawn Cemetery Association, five thousand dollars ($5,000) for perpetual care of the Sarah Crawford lot, known as Section 66-257.
11 Item
m. I give and bequeath to the Greenlawn Cemetery Association, two thousand dollars ($2,000) for perpetual care of the Nitschke family lot, Lot 11, Section 49, on which the mother of my husband, Charles F. Nitschke, is buried.
“Item
IV. I give and bequeath to the Oakwood Cemetery Association, Warren, Ohio, two thousand ($2,000) for perpetual care of the James Crawford lot, on which my father, William H. Crawford, is buried.”
Item V is a very substantial specific bequest to a Gladys Griffin of extensive property and cash. Item VI is a specific bequest to a Mary Van Houten of $3,000 cash and personal property. Items VII and VIII are specific bequests to appellants Georgia Nitschke Smith and Clara Nitschke Brush of $15,000 and certain personal property to each. Items IX through XIV are specific bequests of varying substantiality to a number of relatives and friends. Item XV is a specific bequest to appellant James W. Nitschke of certain real estate, $5,000 in cash and certain personalty. Item XVI is a specific bequest in trust for certain relatives of stock in Columbus Properties, Inc., having an appraisal value of $48,000.
Item XVII is a residuary clause which also contains the following provision:
“In the event there are not sufficient assets under this item to pay all debts and expenses of administration and it is necessary to allocate same against specific legacies or devises, I direct that no deduction therefor be made from the specific bequests to Gladys Griffin, Mary S. Van Houten and from the bequest of stock in Columbus Properties, Inc.” -
Item XVTII provides:
“In this will I make special provision for James W. Nitschke, Georgia Nitschke Smith and Clara Nitschke Brush to compensate them to some extent for inequalities in distributions made by their uncle, James W. Nitschke and their aunt, Clara S. Nitschke during their lifetime or in their respective wills. I am especially indebted to James W. Nitschke, devisee herein, because of his having resided with me nine years after the death of my husband during which period and since he has been of great help and comfort.”
The gross estate was appraised at $200,769.21. However, the net estate available for distribution was insufficient to pay
all of these specific bequests in full (and obviously, therefore, there is no residuary). In the absence of a provision in the will, the specific bequests would abate proportionately, but under Item XVII the three cemetery bequests (Items II, III and IV) and the appellant’s three bequests (Items VTI, VIII and XV) all fall in the same category,
i. e.,
they are to be abated prior to those named in Item XVII. Following these instructions, the executor made a tentative abatement of these specific cash bequests by paying only 40 per cent. In amounts, this was: (1) Greenlawn Cemetery (Item II) $2,000; (2) Greenlawn Cemetery (Item III) $800; (3) Oakwood Cemetery (Item IV) $800; (4) Georgia N. Smith (Item VII) $6,000; (5) Clara N. Brush (Item VIII) $6,000; (6) James W. Nitschke (Item XV) $2,000.
It now appears that the amount left in the estate to pay the remaining 60 per cent ($26,400) of these specific bequests is only $4,352.43. The $3,000 allowed by the Probate Court for cemetery lot care would be paid out of that fund and, therefore, operate to enhance the abatement by reducing the already grossly inadequate amount available.
An expenditure under Section 2113.37, Revised Code, is an entirely permissive matter 'rather than in any sense a necessary administrative expense. It is, therefore, a matter in the sound discretion of the court, and subject to review if that discretion is abused. The statute permits the expenditure of a “just amount,” and is limited to the lot on which the decedent is buried.
Grace Nitschke, in life, purchased a burial lot, apparently containing space for four graves. Both the decedent and her husband are buried there. The lot carries with it an obligation of the cemetery association to provide minimum care in the form of cutting the grass and general maintenance. The hearing on the application indicates that while alive the decedent liad a considerable interest in the care and maintenance of the grave of her husband and other relatives, frequently visiting the cemetery and personally seeing to some of the maintenance.
. In determining if there has been an abuse of discretion, consideration should be given to all the circumstances. Assuming that the allowed payment would be taken as a satisfaction of the bequest of Item II, the total endowment of Greenlawn
for the care of decedent’s lot alone, in addition to minimal care, would amount to $5,000 out of an estate of over $200,000. Viewed in that light alone, the amount does not seem excessive. Bearing in mind the decedent’s interest in the care of cemetery lots, evidenced by the testimony of her habits, and by the three bequests to cemetery associations, the order appears reasonable.
However, there are other circumstances that must be taken into account.
1. It is apparent that the executor could not provide this additional amount to Greenlawn under the terms of the will. To do so would create an illegal preference not permitted by the terms of the will or by law.
2. The payment operates to reduce
specific
bequests already substantially abated, rather than to reduce the general estate.
3. Among the specific bequests so injured are two bequests for cemetery lot care. The testimony on decedent’s habits was not limited to the specific lot in question, but showed a general interest and concern with the burial lots of her family. The will provisions reinforce this.
4.
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Dueeey, P. J.
This is an appeal on questions of law from an order of the Probate Court of Franklin County. James M. Hengst, executor of the estate of Grace C. Nitschke, deceased, applied, under Section 2113.37, Revised Code, for authority to expend $3,000 as a payment to the Greenlawn Cemetery Association for a perpetual fund to care for the lot on which the decedent is buried. Authority was granted. Appellants are legatees under three specific bequests in the decedent’s will.
Section 2113.37, Revised Code, provides:
“The Probate Court in settlement of an executor’s or administrator’s account may allow as a credit to the executor or administrator a just amount expended by him for a tombstone or monument for the deceased and a just amount paid by him to a cemetery association or corporation as a perpetual fund for caring for and preserving the lot on which the deceased is buried. It is not incumbent on an executor or administrator to procure a tombstone or monument or to pay any sum into such fund.”
The decedent’s will left a large number of specific bequests. Items II, III and IY provide:
“Item
II. I give and bequeath to the Greenlawn Cemetery Association, five thousand dollars ($5,000) for perpetual care of the Sarah Crawford lot, known as Section 66-257.
11 Item
m. I give and bequeath to the Greenlawn Cemetery Association, two thousand dollars ($2,000) for perpetual care of the Nitschke family lot, Lot 11, Section 49, on which the mother of my husband, Charles F. Nitschke, is buried.
“Item
IV. I give and bequeath to the Oakwood Cemetery Association, Warren, Ohio, two thousand ($2,000) for perpetual care of the James Crawford lot, on which my father, William H. Crawford, is buried.”
Item V is a very substantial specific bequest to a Gladys Griffin of extensive property and cash. Item VI is a specific bequest to a Mary Van Houten of $3,000 cash and personal property. Items VII and VIII are specific bequests to appellants Georgia Nitschke Smith and Clara Nitschke Brush of $15,000 and certain personal property to each. Items IX through XIV are specific bequests of varying substantiality to a number of relatives and friends. Item XV is a specific bequest to appellant James W. Nitschke of certain real estate, $5,000 in cash and certain personalty. Item XVI is a specific bequest in trust for certain relatives of stock in Columbus Properties, Inc., having an appraisal value of $48,000.
Item XVII is a residuary clause which also contains the following provision:
“In the event there are not sufficient assets under this item to pay all debts and expenses of administration and it is necessary to allocate same against specific legacies or devises, I direct that no deduction therefor be made from the specific bequests to Gladys Griffin, Mary S. Van Houten and from the bequest of stock in Columbus Properties, Inc.” -
Item XVTII provides:
“In this will I make special provision for James W. Nitschke, Georgia Nitschke Smith and Clara Nitschke Brush to compensate them to some extent for inequalities in distributions made by their uncle, James W. Nitschke and their aunt, Clara S. Nitschke during their lifetime or in their respective wills. I am especially indebted to James W. Nitschke, devisee herein, because of his having resided with me nine years after the death of my husband during which period and since he has been of great help and comfort.”
The gross estate was appraised at $200,769.21. However, the net estate available for distribution was insufficient to pay
all of these specific bequests in full (and obviously, therefore, there is no residuary). In the absence of a provision in the will, the specific bequests would abate proportionately, but under Item XVII the three cemetery bequests (Items II, III and IV) and the appellant’s three bequests (Items VTI, VIII and XV) all fall in the same category,
i. e.,
they are to be abated prior to those named in Item XVII. Following these instructions, the executor made a tentative abatement of these specific cash bequests by paying only 40 per cent. In amounts, this was: (1) Greenlawn Cemetery (Item II) $2,000; (2) Greenlawn Cemetery (Item III) $800; (3) Oakwood Cemetery (Item IV) $800; (4) Georgia N. Smith (Item VII) $6,000; (5) Clara N. Brush (Item VIII) $6,000; (6) James W. Nitschke (Item XV) $2,000.
It now appears that the amount left in the estate to pay the remaining 60 per cent ($26,400) of these specific bequests is only $4,352.43. The $3,000 allowed by the Probate Court for cemetery lot care would be paid out of that fund and, therefore, operate to enhance the abatement by reducing the already grossly inadequate amount available.
An expenditure under Section 2113.37, Revised Code, is an entirely permissive matter 'rather than in any sense a necessary administrative expense. It is, therefore, a matter in the sound discretion of the court, and subject to review if that discretion is abused. The statute permits the expenditure of a “just amount,” and is limited to the lot on which the decedent is buried.
Grace Nitschke, in life, purchased a burial lot, apparently containing space for four graves. Both the decedent and her husband are buried there. The lot carries with it an obligation of the cemetery association to provide minimum care in the form of cutting the grass and general maintenance. The hearing on the application indicates that while alive the decedent liad a considerable interest in the care and maintenance of the grave of her husband and other relatives, frequently visiting the cemetery and personally seeing to some of the maintenance.
. In determining if there has been an abuse of discretion, consideration should be given to all the circumstances. Assuming that the allowed payment would be taken as a satisfaction of the bequest of Item II, the total endowment of Greenlawn
for the care of decedent’s lot alone, in addition to minimal care, would amount to $5,000 out of an estate of over $200,000. Viewed in that light alone, the amount does not seem excessive. Bearing in mind the decedent’s interest in the care of cemetery lots, evidenced by the testimony of her habits, and by the three bequests to cemetery associations, the order appears reasonable.
However, there are other circumstances that must be taken into account.
1. It is apparent that the executor could not provide this additional amount to Greenlawn under the terms of the will. To do so would create an illegal preference not permitted by the terms of the will or by law.
2. The payment operates to reduce
specific
bequests already substantially abated, rather than to reduce the general estate.
3. Among the specific bequests so injured are two bequests for cemetery lot care. The testimony on decedent’s habits was not limited to the specific lot in question, but showed a general interest and concern with the burial lots of her family. The will provisions reinforce this.
4. The decedent went to considerable lengths in Item XVII to express her special concern and feeling of obligation toward the three individual legatees injured by the allowance of this expenditure.
The referee noted that Item II is placed ahead of the other bequests and inferred some special intent from its placement. We cannot discern any significance in its placement unless it be the opposite. The decedent made a special provision for determining abatement and placed all six bequests in the same relative position. If one is to look at the will, Item XVII would also seem to evidence an intent to prefer the three individuals over the three cemetery bequests. But, of course, as a matter of law, that cannot be done here. The comment of the referee would appear to indicate that he took into account that which he could not do under the will and law,
i. e.,
the creation of a preference as opposed to determining a “just amount.” It is interesting to note that the court entry recites that the payment is to “complete the endowment” of Greenlawn.
Finally, the decedent’s lot will receive minimal care, plus an endowment for special care of $2,000 already paid by the
executor, and will be entitled to receive an additional amount for endowment proportionate to the other bequests. Under the peculiar circumstances here, the ultiiization of the statutory provision amounts to an evasion of the abatement provision of the will and is counter to the expressed intent of the testator as indicated by the detailed structure she established for the distribution of her estate.
The order of the Probate Court is reversed, and the cause is remanded for further proceedings according to law.
Judgment reversed.
Duffy, J., concurs.