Wolverton v. Paddock

Preble Circuit Court

Wolverton v. Paddock

2 Ohio Cir. Dec. 279

DecidedNovember 15, 1888

StatusPublished

This text of 2 Ohio Cir. Dec. 279 (Wolverton v. Paddock) is published on Counsel Stack Legal Research, covering Preble Circuit Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wolverton v. Paddock, 2 Ohio Cir. Dec. 279 (Ohio Super. Ct. 1888).

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Opinion

Stewart, J.

•The only question for determination in this case is, whether a widow whose husband is not, at the time of his decease, the owner of a homestead, and who is not herself the owner of a horhestead, is entitled to an allowance in lieu of a homestead out of her husband’s estate. The correct decision of this question depends [280]*280bpon a proper construction of -the statutes of this state, with such light thereon as may be given by the decisions of our courts.

Foos & Fisher and M. L. Holt, for plaintiff. J. W. King, for defendant.

The only provision in relation to the setting off of a homestead in cases of sale of the real estate of an intestate by the administrator to pay debts, is found in sec 6155, Rev. Stat.; (83 O. L., 105). Under that section, if the deceased left a homestead and a widow or minor children, or both, entitled to have a homestead set off, pursuant to the provisions of sec. 5437, then the court shall order the appraisers to first set off and assign such homestead. Such appraisers, however, are not authorized to set off such homestead unless the premises about to be sold, or a part of them, constitute the homestead of the intestate. Section 5438, Rev. Stat.

But it is claimed that the language of sec. 5441, is broad enough to authorize the allowance to a widow of $500.00 in lieu of a homestead, when, as in this case, she is not the owner of a homestead.

The language of this section is no broader than that of sec. 5435, and in the case of Taylor v. Thorn, adm’r, 29 O. S., 569, it was held that the exemptions referred to in sec. 5435 (S. & C. 1145, sec. 4), related to property belonging to the widow, and not to that belonging to the estate of her deceased husband. It was further held in the same case that the only right to a homestead in the lands of a decedent belonging to his widow is created by sec. 5437 (S. & C. 1145, sec. 3).

It is clear that the provisions of sec. 5441 only apply to exemptions to the widow out of her own property against her own debts, and. that she is not entitled to any allowance in lieu of a homestead out of her husband’s property.

It follows that the judgment of the court below was right, and it will be affirmed.

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Stewart, J.

•The only question for determination in this case is, whether a widow whose husband is not, at the time of his decease, the owner of a homestead, and who is not herself the owner of a horhestead, is entitled to an allowance in lieu of a homestead out of her husband’s estate. The correct decision of this question depends [280]*280bpon a proper construction of -the statutes of this state, with such light thereon as may be given by the decisions of our courts.

Foos & Fisher and M. L. Holt, for plaintiff. J. W. King, for defendant.

The only provision in relation to the setting off of a homestead in cases of sale of the real estate of an intestate by the administrator to pay debts, is found in sec 6155, Rev. Stat.; (83 O. L., 105). Under that section, if the deceased left a homestead and a widow or minor children, or both, entitled to have a homestead set off, pursuant to the provisions of sec. 5437, then the court shall order the appraisers to first set off and assign such homestead. Such appraisers, however, are not authorized to set off such homestead unless the premises about to be sold, or a part of them, constitute the homestead of the intestate. Section 5438, Rev. Stat.

But it is claimed that the language of sec. 5441, is broad enough to authorize the allowance to a widow of $500.00 in lieu of a homestead, when, as in this case, she is not the owner of a homestead.

The language of this section is no broader than that of sec. 5435, and in the case of Taylor v. Thorn, adm’r, 29 O. S., 569, it was held that the exemptions referred to in sec. 5435 (S. & C. 1145, sec. 4), related to property belonging to the widow, and not to that belonging to the estate of her deceased husband. It was further held in the same case that the only right to a homestead in the lands of a decedent belonging to his widow is created by sec. 5437 (S. & C. 1145, sec. 3).

It is clear that the provisions of sec. 5441 only apply to exemptions to the widow out of her own property against her own debts, and. that she is not entitled to any allowance in lieu of a homestead out of her husband’s property.

It follows that the judgment of the court below was right, and it will be affirmed.

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Bluebook (online)

2 Ohio Cir. Dec. 279, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wolverton-v-paddock-ohcirctpreble-1888.