Kincaid v. Dawson (87 Ohio App. 299, 1950)

Wiseman, J.

This is an appeal on questions of law from a judgment of the Probate Court of Franklin County, refusing to set aside a land sale proceeding in the estate of Benjamin F. Dawson, deceased. On the representation that decedent died intestate, the Probate Court appointed an administrator for the estate, who brought an action to sell the real estate to pay debts. The record shows that, after the sale of the real estate was consummated and the proceeds of the sale distributed, a will of the decedent was presented and duly probated, whereupon the appointment of the administrator was vacated and an administrator de bonis non with the will annexed was appointed, who instituted a proceeding to set aside the land sale proceeding.

When an executor or an administrator ascertains that the personal property is insufficient to pay the debts of tbe deceased,-, .together with tbe allowance to tbe widow, it is bis duty to bring an action to sell the real estate. Section 10510-2, General Code; Yates v. Yates, 27 Ohio Law Abs., 633. The allowance to the widow for a year’s support was a debt against the estate. Davidson v. Miners & Mechanics Savings & Trust Co., Exr., 129 Ohio St., 418, 195 N. E., 845. Likewise, tbe claim of tbe Division of Aid for tbe Aged of tbe state of Ohio was a debt against the estate of the decedent. Section 1359-7, General Code.

There was no personal property. Consequently, it was tbe duty of the administrator to sell tbe real estate to pay tbe allowance to tbe widow and tbe claim of the Division of Aid for tbe Aged. Whether the decedent died testate or intestate tbe widow under the facts in this case was entitled to a year’s allowance. Tbe land sale proceeding is not invalidated by reason of tbe fact that tbe appraised value of tbe real estate was less than tbe total amount due tbe widow as an exemption and year’s allowance.

Tbe real estate owned by tbe decedent descended to bis heirs under tbe intestate laws of the state or passed to them under tbe provisions of bis will, subject to tbe right of the fiduciary to bring tbe land sale proceeding' for -the purpose of tbe payment of the debts of-'the estate. Tbe land sale proceeding divested tbe heirs of their interests in such property. Carr, Gdn., v. Hull, 65 Ohio St., 394, 62 N. E., 439.

Under the provisions of Section 10509-24, General Code, a land sale proceeding brought by the administrator is considered to be valid and binding on tbe administrator de bonis ñon with tbe will annexed. We affirm tbe judgment of the trial court finding that there was no showing of good cause for setting aside the land sale proceeding.

Judgment affirmed.

Miller, P. J., and Hornbeck, J., concur.