657 N.E.2d 531 | Ohio Ct. App. | 1995
Appellant, Howard D. Reddick, Executor of the Estate of Paul F. Reddick, appeals from the judgment entry of the Hancock County Court of Common Pleas, Probate Division, ordering him to pay the decedent's surviving spouse, appellee, E. Delores1 Reddick, allowance for support.
Paul F. Reddick ("decedent") died testate on May 7, 1991. His survivors include appellee and the decedent's two adult children. Appellee is not the natural mother of the children. On May 8, 1991, decedent's will was admitted to probate and appellant was appointed as executor. An inventory and appraisal were filed on July 26, 1991. A notice for the inventory hearing was published beginning August 3, 1991 and the trial court approved the inventory on August 19, 1991.2
Appellee received her citation to elect to take against or under the will on August 28, 1991. Appellee then filed a motion on September 26, 1991, requesting an extension of time for her election. In its judgment entry of September 27, 1991, the trial court granted the extension of time for election until November 1, 1991.3 *490
On September 7, 1993, appellee filed a motion to vacate the judgment entry of September 27, 1991 regarding the November 1, 1991 deadline and requesting a hearing on her exceptions to the inventory. Appellee filed another motion, requesting allowance for support pursuant to R.C.
A pretrial conference was held on September 16, 1994. In its September 19, 1994 judgment entry, the trial court ordered the parties to file memoranda of law on the sole question of "whether a testamentary instrument can by its terms bar the surviving spouse from receiving his or her family allowance." The trial court, in its judgment entry, dated October 11, 1994, found that the decedent may not do so.
It is from this judgment entry that appellant asserts the following assignment of error:
"The trial court erred to the prejudice of appellant by holding that a decedent may not through testamentary language bar a surviving spouse from the $25,000.00 allowance under Ohio Revised Code §
First, appellant asserts that since appellee failed to timely elect to take against the will, she is presumed to take under the will. As such, he maintains that the language contained in the will clearly bars her from receiving allowance for support. In the alternative, appellant contends that if appellee is permitted to take against the will, decedent's will still expressly bars the statutory allowance for support.
A spouse must make an election to take either under the will or against the will within a one-month period after the service of a citation to elect. R.C.
R.C.
Thus, in the instant case, determining whether appellee has taken under the will is instrumental in deciding whether decedent can, through testamentary language, bar the allowance for support. The record shows that the trial court granted appellee an extension of time until November 1, 1991 in which to file an election to take under or against the will. The record contains no election or request to extend the deadline beyond that date prior to its expiration. Nor does the record contain any judgment entry which grants an additional extension. Thus, according to R.C.
Furthermore, decedent's will reads:
"I give and bequeath to my wife, E. Delores Reddick, the sum of One and 00/100 Dollars ($1.00) to be hers absolutely, said bequest to be in lieu of any statutory allowance for support, right to remain in the mansion house or other statutory provisions."
This language is unambiguous and clearly meets the requirements of R.C.
The judgment entry of the Hancock County Court of Common Pleas, Probate Division, is reversed and the cause is remanded.
Judgment reversed and cause remanded.
THOMAS F. BRYANT, P.J., and EVANS, J., concur.