*156DISSENTING OPINION
By BARNES, PJ.It appears that the widow under the authority of the above quoied section selected personal property of the total value of $130.00. She then demanded in cash the sum of $966.91. This amount together with the $130.00 totalled $1096.91 and equaled 20% of the total value of the estate. It is tile claim of counsel for the widow that her cash demand of $966.91 should be turned to her and not listed as assets of the estate. In effect, this would mean by reason of the insufficiency of funds that no part of the items totalling the $584.86 would be paid. The determination of this question requires a construction of §10509-54 GC.
In Schmehl, Exr. v Schmehl et, (Probate Court, Cuyahoga County) 5 O. Opinions 244, the opinion by Judge Brewerly supports the. conclusions of the trial court in the instant case. Because of the difference in facts, we get very little, if any, aid from any of the other cited cases. 'So far as the personal property of the value of .$130.00 selected by the widow, Mrs. Helen M. Howett. there is no controversy. Referring to §10509-54 GC, it will be observed that the early lines of the section read as follows:
“If selected as hereinafter provided shall not bo deemed assets of administrator as such but must be included and stated in the inventory of the estate.”
The personal property which the widow may select, as set out in the majority opinion, not exceeding in value 20% of the appraised value of the . property real and personal comprised in the inventory.
The last paragraph of the section provides for the alternative in the event the personal property so selected by the widow is of less value than the total amount which may be selected. Under this contingency it provides that the surviving spouse shall receive such sum of money as shall equal the difference between the value of the personal property so selected and the 20%. The provision where money is selected differs from the first part of the section wherein the statement is made that the property shall not be deemed assets. The difference can most readily be shown by quoting the statute verbatim-.
“And such sum of money shall be a charge on all property real and personal belonging to the estate prior to the claims of all unsecured, creditors of the deceased or of his estate.”
This provision of the section wherein it says that the money shall be a charge on all property real and personal belonging t-o the estate is quite different than the former provisions of the section wherein it says that the selected property shall not be deemed assets of the estate. The provision for selected property refers to the specific enumerated items which the widow is authorized to select.
This last paragraph, of the section not only provides that the sum of money shall be a charge on all property real and personal belonging' to the estate but further provides that sum so authorized to be paid is prior to the claims of unsecured creditors of the deceased or of the estate. There is no inference left except that this sum is not prior to the claims of secured creditors of the deceased of the estate. (Emphasis mine). In the instant case the mortgage was a secured claim against the deceased. The itemized list of claims total-ling $584.86 are preferred claims of the estate. They are made such by the express provisions of §10509-121 GC.
It is my conclusion that the Probate Court was correct in his determination as to the distribution of the funds remaining in the hands of the executor, and therefore, the judgment should be affirmed.