Weaver v. King

Citations

• 21 Ohio C.C. Dec. 199

Syllabus

<p>ELECTION OF WIDOW — EXECUTORY DEVISE.</p> <p>1. Presumption of Issuance of Citation and Election of Widows.</p> <p>Where all the records of the prohate court were' destroyed by fire subsequent to the probate of a will and the settlement of an estate, there being no direct evidence whether or not the widow was cited to elect or made any election to take under the will, a court will presume that' the required citation was issued and that the widow elected to take the more valuable estate.</p> <p>2. Widow Takes Estate by Executory Devise.</p> <p>A will provided that the testator’s real estate should pass to his wife and child in the same manner as provided by statute, and then provided :-y “in the event of the death of my said son without lawful issue, leaving my said wife surviving him, then in that case, all my property, real and personal, remaining, shall pass and go to my said wife as her sole and separate property.” The son having died in infancy subsequent to the death of testator the widow' under the above quoted clause of the will took the estate in fee simple by way- of executory devise.</p> <p>3. Whether Widow Takes Executory Devise by Failing to Elect to Take Under Will.</p> <p>In case the widow had elected not to take under the will and thereafter the son had died without lawful issue, whether or not the widow, notwithstanding such election, would have taken the estate in fee simple, by way of executory devise, quaere.</p> <p>[Syllabus by the court.]</p>