Though I concur in paragraph two of the syllabus, I dissent from subdivision (a) of paragraph one of the syllabus and from the judgment.
It is true that defendant believed in good faith that she had been the wife of and was the widow of decedent, but, nevertheless, she was never legally married to him for the reason that plaintiff, who was the mother of his three children, was his legally wedded wife. As a result, plaintiff was unquestionably entitled to at least a widow's allowance and, under the statutes of descent and distribution, one-third of decedent's estate.
Defendant received all decedent's net estate, including the portion to which plaintiff was entitled, because of defendant's representation to the Probate Court that she had been decedent's wife and was his widow. That representation was untrue and though innocently made, in my opinion it was more than a mere mistake. Upon the ground of public policy, defendant's representation should be held to constitute constructive fraud and, therefore, Section 10506-40 (d), General Code (114 Ohio Laws, 372), as it was applicable to this case, would have applied and the four-year statute of limitation, Section 11224, General Code, would not have started to run against the plaintiff until her discovery of the constructive fraud appearing in this case. *Page 62
I am of the opinion that when a decedent's genuine widow has been deprived of her rights in his estate as a result of representations by another woman who was never legally married to decedent, even though this latter woman may be entirely innocent of an intent to defraud, a constructive fraud has been practiced upon the Probate Court.