Watts v. Watts.
A testator devised to his wife, who was also appointed executrix, one-half his real estate in fee, and after giving to his children certain legacies in kind, and providing that his sons who remained at home and labored for the good of the family until they were of age, should be paid a sum of money, upon final settlement; gave “all the rest of his real estate” and “ all the rest and residue of his personal estate” to his wife, to be used by her for the payment of his debts and the good of the family as she might think best, until the youngest child became of age ; then all that was left on hand, except the household furniture, which is given to her absolutely, to be divided equally among all his children. The widow elected to take under the will, and qualified and acted as executrix. Meld: 1. That the widow, under this residuary clause, took said real and personal estate in trust, to be used for the payment of debts, and for the good of the family as she might think best, until the youngest child became of age, and the saméis thereby primarily charged with these burdens before resort can be had to other property disposed *481of by the will, or to the residuary estate, that should be left on hand when the estate for years terminated.
3. That a discretion is vested in her as to the manner in which she should use this property for the purposes named, and she is not accountable to the estate for the rents and profits of the real estate, which she has used for the good of the family, but is only chargeable with rents and profits applied as assets to the payment of debts, charges and legacies, or which she has diverted to other purposes than the good of the family.
3. The year’s allowance to the widow and minor children is a debt of the estate, which, on payment by the executrix, is a proper item of credit in her account. If paid, in whole or in part, out of assets of the estate, whether derived from personal estate or rents and profits received from this portion of the real estate, the amount so paid should be charged to her as assets.
4. If the personal property and the rents and profits of this real estate are used by the widow for the good of the family during the minority of the youngest child, she is not accountable therefor, even though, by the exercise of greater skill, prudence, and economy, she might have saved a fund out of which to pay the debts.
5. By accepting under the will, the widow did not become personally liable for the debts, beyond the assets which came to her hands applicable, in the exercise of the discretion vested in her, to their payment.
6. Upon every settlement of an account by an executor or administrator, all his former accounts may be so far opened as to correct any mistake or error therein, except as to matters in dispute between two parties which had been previously heard and determined by the court, which shall not again be brought in 'question without leave of the court. This includes the power to correct all errors or mistakes of the court, as well as of the executor or administrator, found in former settlements, whether as to items embraced in or omitted from such former accounts.
Error to tbe District Court of Huron county.
Nicholas Watts died about March 28, 1864, leaving the following last will and testament:
“ The last will and testament of Nicholas Watts. Considering the uncertainty of this mortal life, and being of sound mind and memory, do make and publish this, my last will and testament, in manner and form following:
“ First. I give and bequeath unto my beloved wife, Delila Watts, the north half of my lot of land on which I now live, known as lot No. 13, in New Haven township, Huron county, *482and state of Ohio, together with the appurtenances belonging to the same.
“ Next I give and bequeath my oldest daughter, Martha J. Loveland, when she is of age, ten sheep, or the value thereof, also two beds and bedding, and one cow, all of which she has had. I have also given to my oldest son, Henry M. Watts, ten sheep and one young horse; I also give and bequeath to my daughters, Roxana E. Watts, Amelia IT. Watts and Mary A. Watts respectively, each -when they become of age, one cow, ten sheep, and two beds and bedding, or the value thereof; and next I give and bequeath to my sons, Corydon Watts, Abner Watts.and Nicholas Watts, Jr., respectively, when they become of age, each one young horse, not less than three years old, and also ten sheep, provided the boys stay at home and labor for the good of the family until they are of age. Then in the final settlement of my estate, 1 give and bequeath to each of my sons the sum of $200 for their labor from the time they are eighteen years old until they are twenty-one years old. And lastly, as to the rest of my real estate, and also the rest, residue and remainder of my personal estate, goods and chattels, of what kind and nature soever, I give and bequeath unto my said beloved wife, Delila Watts, to be used by her for the payment of my debts and the good of the family as she may think best, until the youngest child becomes of age, the household furniture to belong to my wife exclusively. After my youngest child becomes of age all the property left and on hand to be equally divided amongst all my children, and finally I appoint my beloved wife sole executrix of this, my last will and testament.”
This will was duly probated. The plaintiff in error, Delila Watts, the widow of testator, elected to take under it, and was duly qualified and acted as executrix.
April 27, 1864, an inventory and appraisement of the personal property was filed in the probate court, amounting to $1,764. This property consisted of horses, cattle, and other chattels usually found on a farm, and suitable for its cultivation and use.
At the same time the appraisers set off to the widow and *483the three minor children under fifteen, $250 each, making in all $1,000 for their year’s support. The youngest child came of age May 10, 1874.
May 2, 1877, the executrix filed her “ third partial aecomvtP In this she charges herself with $636.28 and interest thereon, $3.18, collected in Pluron common pleas of Henry M. Watts, and credits herself with numerous items of taxes, debts, &c. The first item of credit is under date of June 1, 1872, “ Balance due to executrix on the last settlement of her account, $2,124.75.” On this item she credits herself with interest from that date to the date of filing the third account, May 2, 1877. To this account Henry M. Watts and Nicholas Watts, Jr., filed exceptions to the credit balance and interest thereon, to costs of suit in the Huron common pleas against Henry M. Watts, the expenses of said suit, and to all items of interest. These exceptions, on hearing, were overruled, and the account was approved, and the exceptors appealed to the court of common pleas.
On the hearing in the common pleas, the exceptions were again overruled, and the account was approved, finding there was due to the executrix $2,741, including interest up to the hearing. This is the balance after deducting the amount collected of said Henry M. Watts, for rent. A bill of exceptions was taken, showing that on the trial the exceptors, after putting said will and the inventory in evidence, showed, that the real estate described in the will as “ the rest of my real estate,” embraced a tract of one hundred and forty-two acres of which one hundred and twenty acres were arable, of all of which the said executrix as such, had the use from the death of testator to May 10, 1874, when the youngest child became of age. They then offered to prove, that in making up her accounts, the executrix had credited herself in her former accounts with $675.77, legacies paid and interest thereon,' also $1,000 the amount set off for the years’ support, and $480 interest thereon, but the court rejected the evidence.
It was also shown that she had accounted for no part of the rents and profits of said real estate, except the amounts collected of Henry M. Watts, to wit, $639.46, as before stated. *484They also offered to prove to the court that “ the net annual rents and profits of said real estate, which is described in said will as ‘ the rest of my real estate,’ were six hundred and fifty dollars per annum during the whole term, from March 28, 1864, to May 10, 1874, that said sum had been received by said Delila Watts and appropriated to her own use and support of herself and said minor children, until the youngest became of age. And that the same, with the personal property described in said inventory, was more than enough to pay all debts and legacies under said will, the year’s allowance to said widow and minor children, and to support and maintain said minor children and said widow until said youngest child should become of age.” Whereupon counsel on the part of said Delila Watts objected to the admission of said testimony or any part thereof, because, as they claimed under said will, the said Delila Watts as executrix, was not required by law to account for any part of said rents and profits. And the court then and there held that under said will the said Delila Watts as executrix, was not required to account for any pa/rt of said rents and profits, and sustained said objections, a/ud said testimony was by the court ruled out a/nd rejected, to which opinion and ruling of the court the said exceptors Henry M. Watts and Nicholas Watts then excepted.
The court then found the balance due the executrix as before stated. The exceptors then took the case to the district court on error, assigning, as grounds for reversal, 1st, that the common pleas erred in rejecting the evidence offered, and 2nd, that it erred in finding in favor of the executrix.
The district court found that there was error of the common pleas, in deciding that there was anything due the executrix, on any of the items of credit excepted to, on the ground that she was not entitled to such credit.
The district court further held, that there was no error in rejecting the evidence relating to the rents and profits, for the reason, that by the provisions of the will, the said Delila Watts was bound to pa/y all the debts and all proper charges, against the estate, including the legacies, and therefore was not bound to keep or render any account “ as to said property, rents and *485profits, further than to show, that the debts, charges and legacies have been paid.” The judgment of the court of common pleas was therefore reversed, and the cause remanded for further proceedings. To reverse this judgment, error is prosecuted by the executrix, in this court.
G. T. Stewart, for plaintiff in error:
I. The exceptions in this case are as to matters set out and specified in the accounts covered by the adjudications of the probate court in the two former settlements, and there is no impeachment attempted, nothing but bare exceptions filed, more than five years after the second judgment. The questions sought to be raised are res adjudieata. McAfee v. Phillips, 25 Ohio St. 314.
The district court erred in holding that there was error in the refusal of the court of common pleas to set aside the balance adjudged by the probate court at the previous settlement and to open up the former accounts by. admitting evidence as to facts existing at the time when that settlement was made and of which the exceptors had then full knowledge. The refusal of the common pleas court to do this was a matter of discretion, and cannot be assigned for error in a reviewing court. Stayner's case, 33 Ohio St. 481.
II. The district court erred in holding that Delila Watts “ was bound to pay all the debts and all proper charges against said estate and the legacies provided in said will.”
Her husband had fully and unconditionally given and devised to her their homestead, including the north half of lot 13, and all the household furniture. The appraisers had set off to her one thousand dollars more, for her year’s support and that of her three children under fifteen years of age. This was absolutely hers. She was not required to become executrix of the will. She could have accepted its provisions and declined its trusts. Her acceptance of the dTities imposed upon her as executrix was purely an act of maternal fidelity and self-sacrifice on her part. Under that trust, she gave all her time and labor for ten years, without compensation, and without a single inducement but the desire of her husband expressed in his will and *486the good of her children. She occupied her own house and farm and gave the children a home with her there. The whole care and education of the family devolved on her. Yet with no personal benefit in view, the district court held that by assuming the sacred trust and fulfilling it with this long and unselfish devotion, she personally incurred all the pecuniary burdens of the estate, and bound herself to pay -all debts, charges, and legacies against it.
The allowance to the widow for her support for the year is such a debt against the estate of her husband that resort may be had for the payment of the same, against land or its proceeds. Allen v. Allen, 18 Ohio St. 234.
Jacob Bcroggs and E. B. Finley, for defendant in error:
When the will of Nicholas Watts was admitted to probate, his-widow, the plaintiff in error, was required to make her election whether she would take under the will or under the statute. She had the full statutory time in which to make this election. It was the duty of the court to fully advise her of her rights under the statute, and of her rights under the will. She had the right to inquire for herself as to the relative value of these respective estates. . To this end she could have had the subject referred to a master for examination and report. The presumption is, that the court discharged its duty, and that she was fully instructed as to her rights. And it is also fair to presume that she investigated the matter for herself. She elected to take under the will; and with the construction given by the district court, no one conversant with the facts can say her election was not a wise one, and one highly profitable to herself. But whether profitable or unprofitable, she is bound by her election. She cannot have the benefits and evade the responsibilities of her act. The testator must have intended that all debts, legacies and charges should-be paid out of his personal property and its increase and the income of the one hundred and forty-two acre tract of land, for he provided no other fund. The testator could not have intended that his estate should be charged with the one thousand dollars set off by the appraisers for the year’s support of *487the widow and the three children under fifteen years of age; because in the will he provides for the support of his family, the widow and these minor children included. But if it were a debt or a charge against the estate, it was to be paid, as other debts, out of the property set apart for the payment of the debts. We think then that, by a fair construction of this will, when the widow elected to take under its provisions and received the property devised, she became bound for the payment of the debts and legacies at all events; that she was not required to keep an account further than to show that she had paid the debts, legacies and charges. We claim that the widow took an estate for years in the residue or remainder. 2 Black. Com. 143. The widow, by accepting under the will, and qualifying as executrix, and by taking charge of -the trust property, became a trustee as clearly as if she had made a formal declaration of acceptance of the trust. 1 Perry on Trusts, 333, 334, 337; 23 Ohio St. 272.
J ohnson, J.
The district court erred in holding that the widow, by accepting the provision made for her in the will, thereby became bound to pay all the debts, charges and legacies of said estate. It thus made her personally liable for these obligations imposed upon the property bequeathed to her, even though they exceeded the property she received. It was wholly immaterial whether the assets that came to her possession were sufficient for that purpose or not. As a deduction from this, that court further held that the, executrix was not bound to keep any account of rents and profits of the real estate further than to show that all the debts charges and legacies were paid, and therefore the common pleas erred in allowing any of credits excepted to, and, they might have added, any other credits, for it is held that by accepting under the will she assumed the debts, charges and legacies, even though these assets were insufficient to pay them.
The common pleas also erred in holding that she was not accountable for any part of the rents and profits, though used to pay the debts, costs and legacies for which a credit was allowed. The result of this was to allow the executrix *488credit for all debts, charges, legacies and taxes, even though paid out of rents and profits of the real estate not used by her for the good of the family. In effect this was to construe the will as a devise of the real estate to her for years with all its rents, issues and profits, free from all liabitities. This conflicts with the terms of the will, which give her this real estate and personal property “ to be used by her for the payment of my (his) debts and the good of the family as she may think best.” The judgment of the common pleas and district court are both erroneous, and must, therefore, be reversed.
As the proper mode of accounting depends on a construction of the will of the testator, and as this case must be remanded for a new trial, we have considered the question presented as to the character of the estate bequeathed to the widow by this residuary clause, and the duties and obligations imposed upon her as executrix. Had no will been made, all the property would have been subject to payment of the debts according to law, the personalty being primarily liable.
The will changes this somewhat. After giving to the wife the north half of the land in fee, and certain legacies in kind to his children when they come of age, those to the boys on condition that they stay at home and labor for the good of the family until that time, he gives to each of his sons in the final settlement of his estate two hundred dollars for their labor from the time they are eighteen until they come of age. Then follows the residuary clause of the will, out of which this controversy grows. It reads as follows:
“ And lastly, as to the rest of my real estate, and also the rest, residue and remainder of my personal estate, goods and chattels, of what kind and nature soever, I give and bequeath unto my said beloved wife, Delila Watts, to be used by her for the payment of my debts and the good of the family as she may think best, until the youngest child becomes of age, the household furniture to belong to my wife exclusively. After my youngest child becomes of age, all the property left and on hand to be equally divided amongst all my children, and finally I appoint my beloved wife sole executrix of this, my last will and testament.”
*489The “ rest of my real estate,” and “ the rest, residue and remainder of my personal estate,” are bequeathed to his wife, Delila Watts, <: to be used by Tier for the payment of my (his) debts, and the good of the family as she may thinh best, until the youngest child becomes of age, the household furniture to belong to my wife exclusively.” As executrix she assumed the duty of administering this estate, under the will, so far as necessary for the payment of debts, legacies and expenses. As a devisee or legatee she was the owner of the property thus given her to be used for the good of the family until the majority of the youngest child; then, after payment of all debts, legacies and proper charges, what was left and on hand, except the household furniture, was to be equally divided amongst all his children. As the youngest child would not reach majority until May 10, 1874, this was a devise of this real estate for a term of over ten years, to be used as therein directed, By operation of the statute the executrix might first exhaust the personal estate in her hands for the payment of debts, but a discretion was vested in her to use both real and personal estate for such payment, and-for the good of the family. The testator clearly intended to keep his wife and minor children together as a family until the youngest child became of age, for he makes the bequests to his three minor sons conditional upon their remaining at home and laboring for the good of the family. The executrix so understood the will, and acted accordingly. The property included in this residuary bequest to his wife was placed in her hands to be used as she might think best for the payment of his debts and the good of his family. As between it and any property specifically devised it was primarily liable, but as between the real and personal estate embraced in this clause a discretion was vested in her as to the manner she should use it for the purposes expressed.
If, in the execise of the discretion vested in her by the will, the rents issues and profits of this estate for years were used for the good of the family, then she is not chargeable therewith in her accounts as executrix out of which to pay debts, charges and legacies. The same is true of the personal estate that came into her hands, if kept for the use of the family. *490But this real estate, for the term of years it was placed in. her hands, and the rents and profits derived therefrom, as well as the personalty, exclusive of the household furniture, was charged with the payment of debts, as well as with the support and maintenance of the family, and if these rents and profits or any part of them was in fact used to pay these debts, charges and legacies, or if they were diverted by her to any other use or puipose than the good of the family, they were assets with which she should be charged, she being entitled to credit for all proper disbursements. It would be an abuse of the trust reposed in her by her husband, to allow her credit for the payment of all debts,charges and legacies, and not to charge her with the assets out of which she has paid the same in whole or in part.
This would cast upon the property, after the term for years had expired, all the obligations of the testator, and give the estate for years to the wife free from the debts, though not used by her for the good of the family.
As executrix, she was entitled to credit for all debts, charges and legacies that the estate is liable for, which she has paid, and she is also chargeable with all assets which came to her hands from rents and profits or otherwise, and were actually used by her in payment of the same, or which were by her diverted to other purposes than the good of the family. If the rents and profits of this real estate, which she received, were used by her for the good of the family, they should not be charged to her in this account, for the will vested in her this discretion. If, on the other hand, they were not so used, but were used as assets to pay these debts and legacies, or were diverted to other purposes than the will devoted them to, under such circumstances as amount to waste, or an abuse of her trust, she is accountable.
This does not involve an inquiry into the mode,and manner in which she has administered the trust reposed in her, further than to hold her accountable for an abuse of the trust, charging her with rents and profits actually received and used as assets in the payment of debts, or which she has diverted to other purposes than the good of the family. She is vested with a trust and confidence to be exercised in her discretion. The fee of this real estate, in case of deficiency of personal assets, is liable for *491these debts and legacies. If, in the exercise of the discretion vested in her, the executrix decided to use the rents and profits of the real and the personal estate, for the good of the family, and for the payment of the debts, instead of converting the same into money for that purpose, then the rents and profits not used by her for the good of the family became assets in her hands so far as necessary to pay debts. The heirs or devisees cannot charge her with the obligations against the estate, by merely showing that she accepted under the will, nor that, by the exercise of greater skill, prudence or economy, she might have kept the family and saved sufficient to pay these obligations. The net rents and profits received by her and not used for the good of the family are to be used in the payment of debts, legacies and charges. They are, for that purpose, assets for which she is accountable. If, in the exercise of her discretion, they have all been used for the good of the family, there is nothing to charge her with in her account as executrix, arising from this source, and the fee of this re'al estate is liable to her for all proper obligations she has paid.
II. In the common pleas, the exceptors offered to show that in her former accounts the executrix had credited herself with the $1,000 allowed for the support of herself and minor children for one year, together with interest thereon. $480, but the court refused to look into the former accounts and rejected this evidence.
It is settled, that the years’ allowance to a widow and minor children, is a debt of the estate (Allen v. Allen, 18 Ohio St. 234; Dorah's Adm'r v. Dorah's Ex'r, 4 Ohio St. 293); and that a widow, electing to take under a will containing provisions for her, expressed to be in lieu of dower and all other claims against the estate, is not barred of her years’ support provided by law out of the estate. Collier v. Collier, 3 Ohio St. 369; Bane v. Wick, 14 Ohio St. 505, 513. As a debt, it has a, preference over all others, except funeral expenses, those of the last sickness, and expenses of administration. 1 & S. C. 581.
This item was therefore a preferred debt, to be paid out of the assets, the same as other debts.
The family, for whose good, as well as for the payment of *492debts, this devise was made, consisted of the widow and three minor children under fifteen, for whom this years’ allowance was made, and other minor children. This allowance was not for the support of these other minor children. The provisions made in the will were for the whole family.
So far as the executrix, has drawn from the rents and profits of this real estate or the personal property, to support the widow and these minor children under fifteen, during that year, it operates as a reduction of this claim. The amount derived from this source should be charged as so much paid on this debt.
III. As to items of interest excepted to, we have not the data before us to determine whether she is entitled to it or not.
The general rule for charging or allowing interest in the accounts of executors and administrators are applicable. They should be applied in settling this question.
IY. One of the exceptions is to a balance of $2,124.75 due her on the last settlement. This is not an exception to any item in the present account, but rather to the correctness of a former account.
It is quite doubtful whether it' is sufficiently specific as to direct the attention to any item in the former accounts.
The statute, however, provides: “ That when an account is settled in the absence of any person adversely interested, and without actual notice to him, the account may be opened on his filing exceptions to the account at any time within eight months thereafter; and upon every settlement of an account by an executor or administrator, all his former accounts may be so far opened as to correct any mistake or error therein, excepting that any matter in dispute between two parties which lias been previously heard and determined by the court shall not again be brought in question by either of the same parties without leave of the court.” See also Stayner's case, 33 Ohio St. 481.
If, therefore, there was any error or mistake, either in the debit or credit side of the former accounts, not theretofore adjudicated between these parties, it was subject to correction in this account, whether that error or mistake consisted in omit*493ting proper charges or credits, or in including incorrect charges or credits, or whether made by the court or the executrix.
Judgments.of the district court and of the common pleas reversed, and cause remanded for further proceedings.