Nichols v. French

Citations

• 83 Ohio St. (N.S.) 162

Syllabus

<p>Residence property of intestate sold to pay mortgage lien, etc.— Widow who had separated from deceased — Not entitled to allowance in lieu of homestead — Section 5437, Revised Statutes— Widow of purchase money mortgagor — Dowable only of- surplus after mortgage satisfaction.</p> <p>1. When one dies intestate leaving a widow, who having separated from him, is permanently residing elsewhere, and the property on which he resided is brought to sale for the payment of a mortgage lien thereon and for the payment of his debts, she is not entitled to an allowance out of the proceeds in lieu of homestead, the widow’s right in that regard being fixed by Section 5437, Revised Statutes, which confines the right to “a widow composing a part of the decedent’s family at the time of his death.” (Elliott v. Plattor, 43 Ohio St., 207, approved and followed.)</p> <p>2. The widow of a purchase money mortgagor, mortgage given before marriage, and property sold by executors to pay the mortgage debt is not dowable of the whole proceeds, but only of the surplus remaining after satisfying the mortgage. (Culver et al., Exrs., v. Harper, 27 Ohio St., 464, approved and followed; Kling v. Ballentine, 40 Ohio St., 391, and Mandel v. McClave, 46 Ohio St., 407, distinguished.)</p>