459 N.E.2d 898 | Ohio Ct. App. | 1983
This matter is before us on the appeal of defendant-appellant, Edward A. Heffernan, from a judgment entry of the Franklin County Court of Common Pleas, Probate Division, authorizing the sale pursuant to R.C.
Mary W. Heffernan died on September 26, 1981, leaving defendant and four other adult children as the sole beneficiaries under her will.
The will was admitted to probate on October 22, 1981, and plaintiff, Ann Duffy, was appointed executrix of the will. The will devised the decedent's sole property, her residence, in equal shares to her children.
On July 2, 1982, the executrix filed a complaint in probate court seeking an order authorizing the sale of the decedent's real estate pursuant to R.C.
Defendant Edward A. Heffernan filed an answer stating, interalia, that R.C.
Following a brief hearing on plaintiff's complaint, the trial court found that R.C.
Defendant Edward A. Heffernan raises the following three assignments of error in support of his appeal:
"1. The trial court erred by ordering sale of testator's [sic] homestead property in opposition to the expressed intent of the testator [sic].
"2. It was error for the trial court to grant judgment to the plaintiff based on inapplicable law and since plaintiff otherwise failed to substantiate a case.
"3. The trial judge abused his discretion by disallowing defendant below to admit any evidence at trial and violating his Fourteenth Amendment rights to due *274 process and equal protection under the laws."
As the first and second assignments of error are interrelated, we will dispose of them together. R.C.
"(B) An executor, administrator, or administrator with the will annexed may commence an action in the probate court, on his own motion, to sell any part or all of the decedent's real estate, even though it is not required to be sold to pay debts or legacies. The court shall not issue an order of sale in the action unless one of the following categories applies:
"(1) At least fifty per cent of all the persons interested in the real estate proposed to be sold have consented to the sale; and, prior to the issuance of the order, no written objection is filed with the court by any person or persons who hold aggregate interests in the interest of the decedent in the real estate proposed to be sold, that total in excess of twenty-five per cent; and the court determines that the sale is in the best interest of the decedent's estate."
Because Mary W. Heffernan died and her will was admitted to probate before the effective date of R.C.
Upon the death of Mary W. Heffernan, her children, who were the defendants in this case, all acquired rights to the real estate owned by her at the time of her death, and those rights were subject to disfeasance. R.C.
"(A) The reenactment, amendment, or repeal of a statute does not, except as provided in division (B) of this section:
"(1) Affect the prior operation of the statute or any prior action taken thereunder;
"(2) Affect any validation, cure, right, privilege, obligation, or liability previously acquired, accrued, accorded, or incurred thereunder;
"* * *
"(4) Affect any investigation, proceeding, or remedy in respect of any such privilege, obligation, liability, penalty, forfeiture, or punishment; and the investigation, proceeding, or remedy may be instituted, continued, or enforced, and the penalty, forfeiture, or punishment imposed, as if the statute had not been repealed or amended."
At the time of decedent's death and at the time her will was admitted to probate, R.C.
The action of the probate court was, therefore, in violation of R.C.
We hold that an executor or administrator *275
may not use R.C.
The third assignment of error is overruled because any error that may have been committed by the trial court is non-prejudicial to defendant as the result of our disposition of the first two assignments of error.
For the foregoing reasons, the judgment of the trial court is reversed and the cause is remanded for further proceedings consistent with this opinion.
Judgment reversed and cause remanded.
WHITESIDE, P.J., and NORRIS, J., concur.