In re Estate of ROGERS

160 N.E.2d 442, 81 Ohio Law. Abs. 10, 1959 Ohio Misc. LEXIS 335

Opinion

OPINION

By TOBIN, J.

This cause came on to be heard on the application of the Executrix for instructions. A request had been made by the surviving spouse to make her election to take under the will or under the law of §2107.39 R. C. Said request was made prior to the filing of the Inventory and Appraise ment and Schedule of Claims. The Executrix asked for instructions as to whether or not this could be done.

Sec. 2107.39 R. C., reads as follows, in so far as pertinent: “After the probate of a will and filing of the Inventory and Appraisement and the Schedule of Debts, the Probate Court on motion of the Executrix or on its own motion, shall issue a citation to the' surviving spouse to elect whether to take under the will or under §2105.06 R. C.”

The question involved is whether this can be done prior to the filing of the Inventory and Appraisement and Schedule of Debts. The Court answers in the affirmative if the surviving spouse waives, which is fier right, not to elect until such time as the Inventory and Appraisement and Schedule of Debts have been filed. The Court’s reasoning is as follows: The requirement to have the inventory and appraisement, and Schedule of Debts is a safeguard for the surviving spouse so that he or she would have a clear picture of the net value of the estate and thus be in position to make a better decision whether to take under the will or under the law. This, however, being a right given to the surviving spouse, it is such a right that he or she may waive if desired. Upon such waiver in writing, the Court will permit an earlier election.