concurring:
I concur in the judgment to the extent and for the reasons herein stated.»
I recognize that the trial judge in the Miller case has some inferential support for his well considered opinion.
It is common knowledge among our profession that the new Probate Code guarded, broadened and increased the rights of a widow in the property of her deceased husband, and its letter and spirit require that it be given any reasonable interpretation which is favorable to her.
If the widow’s interest in the situation here presented is to be measured in money only then an estate consisting of little *470money and several tracts of real estate would require that the real estate be sold. This, in many instances, would be tragic in view of the present disparity between interest which can be secured on money and the increment to be realized from real estate.
In our present economic condition, a denial to the widow of any fixed interest in realty because of her election not to take under her husband’s will affects her to her marked pecuniary disadvantage and instead of effectuating the manifest broad purpose of the Code, thwarts it.
The term “net estate”, as employed in §10504-55 GC, has no limitation in the section which would restrict the widow to a distributive share measured in money.
Dower, with few exceptions, is abolished by the new code but the right which the widow now enjoys takes the place, in part, of her dower right under the former statutes. Her dower was a vested estate in realty and before she should be denied such interest in the real estate of her deceased consort under §10504-55 GC, that interpretation should be unmistakably re-required by the section. I can not so read it.
The Probate Code Committee of the Ohio State Bar Association in its comment respecting the dower section, as first enacted, §10502-1 GC, said, in part:
“Under the section now proposed (§10502-1 GC) the following would be the net result:
(a) Under the proposed statute of Descent and Distribution the surviving spouse will receive one third outright of all real and personal property owned by decedent spouse at date of death (one half if there is only one child). This will take the place of vested dower. (Emphasis ours.) i
The former section relating to election by the widow, §10566 GC, provided that she should elect
“Whether to take such provision (as made for her in the will of her deceased consort) or to be endowed of the lands of the deceased consort and take the distributive share of the personal estate.” (Emphasis ours.)
If the settled legislative policy, as manifested by the foregoing comment and quoted section of the code, is to be completely changed such purpose should clearly appear.
*471Under the new act, the provision of §16504-55 GC is:
“to elect whether to take under the will or under the statute of descent and distribution. (Emphasis ours.)
The Miller case determined the effect of §10503-5 GC, as then effective, on the rights of the parties to money which the decedent had received from her husband’s estate by reason of a presumed election to take under the statute of descent and distribution, by virtue of §10504-60 GC. The Supreme Court held that the surviving spouse was not by her election placed “within the statute of descent and distribution,” §10503-4 GC, such phrase being merely descriptive of the share which she was to take but that she received her interest in her husband’s estate under §§10504-55 and 10504-60 GC.
Neither the Miller nor the Davidson case decides what quality of interest or estate in real property of her deceased husband who died testate, a widow takes who has made an election to take under the statute of descent and distribution. The Miller case decides what estate the widow has not but it does not determine what estate she has. She is taken out of §10503-4 GC; she is placed under §10504-55 GC, but the opinion goes no further and certainly does not settle the question here presented.
Admittedly the Miller and the Davidson cases are disconcerting but a development in legislation since these decisions, and probably influenced by them, is most significant and, in my opinion, decisive of the principal question presented on this appeal, viz; the quality of the estate, real and personal, which the widow is to receive. I refer to §10503-5, 114 O. L. 340, effective August 22, 1941, a year before the death of the testator in the instant case which, as amended, reads:
“When a relict of a deceased husband or wife dies intestate and without issue, possessed of identical, real estate or personal property which came to such relict from any deceased spouse by deed of gift, devise, bequest or descent or by virtue of an election to take under the statute of descent and distribution, then such estate, real and personal, except one-half thereof which shall pass to and invest in the surviving spouse, if any, of such relict, shall pass to and invest in the children of the deceased spouse from whom such real estate or personal prop*472erty came or their lineal descendants, per stirpes * * (Emphasis ours.)
The emphasized language “identical” instead of “any” qualifying “real estate” and beginning “by virtue of an election to take” and ending with “distribution” are the amendments to the section. The section as now framed discloses other and further important operative facts. It now refers not only to real estate or personal property which came frpm the deceased spouse, as before provided in the section, but also which came to the widow by virtue of her election to take under the law. The statute now includes any and every method of devolution by which the widow can take the real property and every manner by which she may receive the personal property from her deceased consort. The conclusion is inescapable that the section now contemplates that a relict of a deceased husband who died testate, by her election to take under the statute of descent and distribution §10504-55 GC, does take real estate and not the appraised value thereof in money. Such construction is mandatory if the widow is to have any estate in real property upon which the amendments to the section can operate.
I am, therefore, of the opinion that in the light of the narrow questions decided in the Miller and Davidson cases and especially in view of the amendment to §10504-55 GC, the widow, the appellant, takes one-half of the net estate, real and personal, of her deceased husband and that she has a vested interest in fee in the real estate.