Dissenting:
I am not insensible to the appeal which the cause of the widow makes in this case as against the distant relatives who claim against her. If her right could be determined purely upon equitable principles there is much to be said in favor of her taking the whole of her husband’s estate. ’ This equitable principle cannot control. The whole matter is one of statutory interpretation. Strong facts may make bad law and the danger is that a rule of interpretation which may' be equitable *576in this one case will prove to be unjust in the great mass of cases to which the controlling statutes apply.
No one has an inherent right to inherit property nor has the relict any such right to a share of the deceased spouse’s intestate estate. They get only that which the law says they may receive. State ex Taylor v Guilbert, 70 Oh St 229. The widow’s “right to elect is .a creature of statutory law and we must look to the statutes creating it, alone, for the estoppel it is to work— Carder v Board of Commissioners, 16 Oh St 367. The Legislature had the full power to define the'extent to which the widow in this case should share in any property of the deceased when she elected to take under §10504-55 GC.
We take no exceptions to the rule established before the effective date of the new probate code that an election by the widow to take under a will did not bar her rights in intestate property. Bane v Wick, 14 Oh St 505, Carder v Bd. of Commissioners, 16 Oh St 353, Doyle v Doyle, 50 Oh St 330, and we also recognize that the general rule is that where there is no residuary clause in the will, lapsed legacies or devises will go to those entitled to take under the laws of descent and distribution. Patton v Patton, 39 Oh St 590, Woolley v Paxson, 46 Oh St 307.
The Legislature by the enactment of •§10504-55 GC, has limited the total estate to which the widow shall succeed, if she elects not to take under the will and this is defined as not to exceed one-half of the net estate. The statute formerly read, one-half of the estate and “net” was added in the last amendment to §10504-55. Under the present section, in Weller v Weller, 32 N. P. (NS) 329, it has been held that the net estate is that part of the estate which is left after the debts and costs of administration have been paid and includes intestate as well as testate property. This was the construction that was given the section even before amendment. The majority opinion, though not clear, seems to imply that the term “net estate” only has reference to that which is made the subject of disposition in the will.
The Legislature has heretofore definitely limited the extent to which a widow shall take who elects not to take under the will as being her dower and such share of the personal estate of the deceased consort as she or he respectively would be entitled to by law in case the deceased consort had died intestate, leaving children — former §10511 GC. It is now limited by §10504-55 GC, to the share of real estate and personal property which the widow would take if there was but one child.
Sec. 10504-61 GC, effective January 1, 1932, defining the rights of a widow when she elects to take under the will, expressly provides that she shall thereby be barred of all right to a share of the intestate estate unless she comes within the exception provided by the statute and makes Bane v Wick and Oglesbee v Miller, cited by the majority, of no effect now.
It is my judgment that the plaintiff cannot maintain the claim which she asserts in this case, either upon the letter of the controlling statute or upon the adjudications which are pertinent thereto. The express language of §10504-55 GC, measures the full extent to which the widow shall share as surviving spouse, subject only to such sections as may specifically give her preference as surviving widow. It would seem that the language, “in the event of the election to take under the statute of descent and distribution such spouse shall táke not to exceed one-half of the estate” is definite and conclusive.
In the situation here presented the testator by will at his death, if the widow had accepted thereunder, had made but one effective provision, namely, the life income for his widow. Now, it is urged that the widow, electing to destroy this specific provision and to take under §10504-55 GC, may not only defeat the terms of the will but may also by law receive all of his estate. This to us seems untenable and contrary to the spirit of the present Probate Code under which the rights of a widow have been zealously guarded and materially increased.
*577It is urged by the plaintiff that the extent to which she takes by her election under §10504-55 GC, has no relation and is no bar to her participation as an heir under §10503-4 GC. That to permit the defendants to assert a right under the last named section would enable those who come under (8) of the §10503-4 GC, to take priority over the widow who comes under (4) of said section. The answer to this claim is that, although the widow does take by her election under §10504-55 GC, and not under the statute of descent and distribution, the extent to which she takes is defined in §10504-55, and she no longer is permitted to participate by virtue of §10503-4.
The construction which we adopt is in our judgment not only supported by Zizelman v Mayer, 27 Oh Ap 512, but also by Miller v Miller, 129 Oh St 230, and particularly the first and second syllabi.
Second Syl.—
“The phrase ‘under the statute of descent and distribution, as used in. §10504-55 GC and §10504-60 GC, does not mean that the surviving spouse is actually placed within the operation of the statute of descent and distribution, (§10503-4 GC), but such phrase is used as merely definitive or descriptive of the share to be taken by the surviving spouse within a limitation of not to exceed one-half of the estate.” (Emphasis ours).
Judge Zimmerman in this case in several places in the opinion indicates that the full extent to which the widow shall take upon election, to take under the statute of descent and distribution, not under the will, is fully measured by §10504-55 GC. He stresses at page 233 that the terms of §10503-4 GC have application only when a person dies intestate. It cannot be said that the decedent here died intestate though it may be said that some of his estate would pass as intestate property. • At page 235, the writer of the opinion quotes from §10504-55 GC, and emphasizes that portion which limits the extent to which the spouse shall take to not to exceed one-half of the estate and at the bottom of page 235—
“Sections 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 nad died intestate and the taking was clearly under the statute of descent and distribution. The argument (236) 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 not more than one-half as prescribed by §10504-55 * * * The property which Clara J. Miller received from the estate of her husband did not come to her by reason of his intestacy, but because he left a will, the provisions of which she was conclusively presumed to have rejected. This conclusive presumption amounting to actual rejection, §10504-55 asserts itself, whereby one-half of the estate was all she could or did receive.” (Emphasis ours).
In the Miller C0,se it was conceded by the losing party that if the widow took by election it was to a restricted degree, under §10503-4, the statute of descent and distribution. Page 235 of the opinion. Miller v Miller could very easily have been decided to the effect that when the widow elected she took under the statute of descent and distribution. The section uses this language, namely, that she shall elect “whether to take under the will or under the statute of descent and distribution”. Thus, that which the law says she shall elect to take, if not under the will, is under the statute of descent and distribution. But if she did take under the statute of descent and distribution the following part of the statute defines *578what she shall so take, namely, “not to exceed one-half of the net estate”.
Both parties cite and comment upon Holt v Miller, 133 Oh St 418. We are familiar with this case because it was reviewed by this court and our decision is reported in 26 Abs 395, 2 OO 357, 26 Abs 461. The question in this case was whether or not under the terms of the will under consideration the widow of the testator could be considered an heir. We, of course, held that she could. After this case was decided and application for re-hearing was filed it was claimed that our holding was-contrary to the judgment in Miller v Miller, supra. Upon the question we said 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 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.”
It will be noted that the opinion of the full court of the effect of §10504-55 as to the quantum of the estate which a widow would take thereunder, if electing to take under the statute of descent and distribution, was the same then as now expressed in this dissent.