ON REHEARING
Decided Dec 16, 1937
By THE COURT:Submitted on application of Clinton Howard Miller for rehearing.
The 'application concedes that it is filed after rule but suggests an unusual situation, namely, that our judgment is in conflict with the decision of the Court of Appeals of the First District in Miller v Miller, Admr, et al, 49 Oh Ap 220, 3 O.O., 170. However, this case was admitted by the Supreme Court and there decided, 129 Oh St 230, 2 O.O., 45, resulting in an affirmance of the judgment of the Court of Appeals for the same reasons as announced in the opinion of the Court of Appeals. It thus follows that if there is conflict between our judgment and the decision in the Miller ease in the Court of Appeals of the First District, there is likewise conflict between our decision and that of the Supreme Court. If this be true, we would readily reconsider our decision and reverse our former holding.
However, a careful examination of the opinions in the case of Miller v Miller, Admr., et al., is convincing that they do not require a different holding in this court. Without undertaking to state the facts, 'which were somewhat involved, suffice to say that the courts in the Miller case were not determining whether or not a widow may in Ohio at this, time answer the general description of heir or heir-at-law, but determining the manner in which the widow took in the Miller case. The conclusion of the courts was that Clara J. Miller, widow of Harry B. Miller had taken from him by reason of failing to make election under his will not under §10503-4 GC which is the general statute of descent and distribution, but by virtue of §10504-55 GC, which limited her to not more than one-half of her former husband’s estate. The Supreme Court specifically held in the situation there appearing that §10503-4 GC came into play as
“Merely definite or descriptive of the share to be taken‘by the surviving spouse within a limitation of not to exceed one-half of the estate.”
The court in nowise held that a widow who did take under §10503-4 GC would not be an heir. On the contrary, the court at page 235-6, speaking through Zimmerman, Judge, says that:
“By its terms this section (10503-4 GC) is limited to the distribution and descent of property when its owner dies intestate. Secs 10504-55 and 10504-60 GC, are concerned with the property of an owner who dies testate. They give the relict of a testate property owner the right to reject his or her will and to take a share of his or her property which may often be less than if the owner had died intestate and the taking was clearly under the statute of descent and distribution.”
“The argument is therefore persuasive that the phrase ‘under the statute of descent and distribution’ appearing in the last ■ mentioned sections is not there used in such sense as to place the relict directly under the operation of §10503-4 GC, but rather in the sense that such section shall be used as a measuring stick to determine the amount of the estate which shall be taken, within an absolute limitation of *467not more than one-half as prescribed by §10504-55 GC.”
Judge Ross in the opinion in the Appellate Court, page 226, marked the-distinction to be made because the widow had taken under §10504-55 GC, etc., instead of §10503-4.
He there stated:
‘ Were the relict to take under §10503-4 GC by reason of the intestacy of her deceased spouse, an entirely different situation might be presented.”
' It seems to us conclusive that the courts 3-ecognized that one who succeeds to an interest under §10503-4 GC, or 10503-5 GC, would take by descent which would place him within the designation of “heir.”
Without further discussion, we are of oj.inion that no conflict appears in the Miller judgments and our decision in this ease. The application for rehearing, will therefore be overruled.
BARNES, PJ, HORNBECK and GEIGER, JJ, concurring.