69 Ohio Law. Abs. 102 | Oh. Ct. Com. Pl., Tuscarawas | 1954
OPINION
This is a suit in equity by Avaline Smith, surviving spouse of the late William G. Smith, in which plaintiff seeks to have the election made by her in the Probate Court of this county on March 31, 1953, to take under the statute of descent and distribution and against the will of the late William G. Smith,
The estate of the said William G. Smith, according to the inventory and appraisement, amounts to over $309,000.00, and it appears that part of said property consisting of shares of stock and cash was transferred and delivered to the First National Bank of Akron as trustee under a certain revocable living trust agreement on April 17, 1951, at which time the said William G. Smith made and executed his last will and testament. By this will the balance of testator’s estate was directed to be placed in said trust, and certain dispositions were then made by testator out of said trust property to his widow and other beneficiaries.
When plaintiff made her election in the Probate Court, she appeared with her attorney who advised her before the Probate Judge that it would be to her best financial interest to take at law and against the will of her late husband. When asked by the Probate Judge whether she understood her rights under the will and her rights under the law, she replied that she did, whereupon the Probate Judge did not attempt to explain said will and her rights thereunder. At this point it should be made clear that this Court is not necessarily required to determine in these proceedings how much more profitable it would be to the plaintiff under the will than at law. Suffice it to say that the parties have agreed, and evidence was introduced in support of that agreement, that the plaintiff would receive at least $11,000.00 more under the will than she would get at law, thereby showing conclusively that plaintiff’s election to take at law was made without adequate, complete and full information as to her relative property rights. She had the inventory before her and thereby knew the nature, extent and amount of the estate in which she would participate, but the mistake was made in trying to determine under which election she would benefit the most. The question is whether under these circumstances this is such a mistake of law and fact against which a court of equity will grant relief. No fraud is involved and no rights of innocent parties have intervened.
There is no question as to the Court’s jurisdiction in the matter. It is well recognized that this is the type of case that courts of common pleas will take cognizance of. In Davis v. Davis, H Oh St 386, it was held: “Such election, when made and recorded, can be vacated only on petition to the court
The contesting defendants assume the position that the plaintiff, having relied upon the advice of her attorney in making her election, is now irrevocably bound thereby, notwithstanding the fact that she was misled by his advice to her detriment. They also assume the position that when she made her election she expressly waived the explanation enjoined by statute upon the Probate Judge with respect to the provisions of the will and her rights under it, and by law in the event of a refusal to take under the will. They further assume the position that this mistake is one of law and that equity may not be invoked to grant relief with respect thereto.
Before proceeding further with an analysis of the legal questions involved, it should be pointed out that under paragraphs 18, 19, 20 and 22 of the agreed statement of facts, the essential material facts are set forth which briefly are as follows: 1.—The plaintiff personally appeared in the Probate Court with her attorney and in the presence of the Judge made her election to take at law. 2.—The Judge, upon being advised by her and her attorney that she understood her rights under the will and at law, stated that he would not then attempt to explain the will to her and her rights thereunder and at law, and thereupon entered her election to take at law. 3.—The difference between what she would receive at law and under the will is $11,000.00—, that is, she would receive at least $11,000.00 more under the will than she would get at law.
The election of a widow to take at law or under the will of her deceased spouse is controlled by §10504-55 et seq, GC, §2107.39 et seq, R. C., and §10504-59 GC, §2107.48 R. C. provides: “When the election is made in person the court shall explain the provisions of the will, the rights, if any, under it and by law, in the event of a refusal to take under the will.” One thing is therefore certain from the agreed statement of facts and the evidence introduced:—the plaintiff in making her election relied upon incorrect advice of her counsel as to what she would receive under the will, or at law, and the Probate Judge did not make any further explanations of her rights, so we are now confronted with the question—will a court of equity permit her to rescind her election under such circumstances.
It is a general rule that equity will permit an election to be rescinded if made without full knowledge of the elector’s rights and the condition of the estate. There are not many Ohio authorities bearing on this proposition and the Court has been unable to find any Ohio authority with an identical factual situation, but in the case of Mellinger v. Mellinger, 73 Oh St 221,
In Millikin v. Welliver, 37 Oh St 460, it was held on page 466 that: “In order that acts of a widow shall be regarded as equivalent to an election to waive dower, it is essential that she act with a full knowledge of all the circumstances and of her rights, and it must appear that she intended, by her acts, to elect to take the provision which the will gave her. These acts must be plain and unequivocal, and be done with a full knowledge of her rights and the condition of the estate. A mere acquiescence, without a deliberate and intelligent choice, will not be an election. It is believed no case can be found where the facts are held sufficient to amount to an election to waive the widow’s rights under the law, unless they are of such a marked character and of such long duration as will clearly and distinctly evince a purpose to take the provisions of the will, and to operate as an effectual equitable bar to dower.”
Can it be said that the plaintiff acted in this case with a full knowledge of all the facts and circumstances, and the law applicable thereto? Neither she nor her attorney were cognizant of the fact at the time of her election that she would receive $11,000.00 less than if she had taken under the will. Of course, had she known this at the time of her election, equity would hardly grant her the relief sought. It was so held in Bell v. Henry, 121 Oh St 241, but this case also recognizes the general rule that an election may be set aside where it is shown that the widow has not been made fully cognizant of her rights in case she takes under the provisions of the will, or under the law, in the event of her refusal to take under the will.
While it is a well known maxim that ignorance of the law excuseth no one, there are, nevertheless, certain exceptions
The contesting defendants insist, however, that because the
In re McFarlin, 9 Del. Ch. 430, 75 Atl. 281, we have another case where a widow, acting upon the advice of her attorney, made an election under a misapprehension of her antecedent legal rights, and the Court stated the rule as follows: “Where an election is made under a misapprehension of the law as to her right of dower, even although the mistake resulted from the erroneous advice of her counsel, a widow so electing to take the provisions made by law in lieu of that made for her under her deceased husband’s will may be allowed to retract her election, where no rights of third persons who would be injured by a revocation have intervened. Precedents for the
After having reviewed all the authorities cited herein, together with the authorities cited in the briefs of counsel for the several parties in the case, it is the conclusion of the Court that the plaintiff, at the time of making her election, was not fully or correctly informed as to her respective rights at law under the will of her deceased husband; that she was not negligent, but acting upon such advice and information as she then had she made a mistake in taking at law rather than under the will of her deceased husband which would nave given her at least $11,000.00 more in property and money than she would get at law; that there are no intervening rights of other persons which could in any manner be adversely affected by a change in her election; and that plaintiff is entitled to the equitable relief prayed for.
It will therefore be the order of the Court that plaintiff’s election to take at law and against the will of her deceased husband, William G. Smith, be set aside, vacated and held for naught.