Burzych v. Drabik , 1925 Ohio Misc. LEXIS 970 ( 1925 )

WILLIAMS, J.

Frank Burzyeh died intestate in 1914, seized in fee simple of a parcel of real estate in Toledo. At his death he left a. widow, Katarzyna Burzyeh, the plaintiff in this action, and also an adopted daughter Louise Bonk. The estate of the said- Frank Burzyeh was never administered, nor the year’s support of the widow filed. She paid the funeral expenses and other charges against the estate.

In 1917 she conveyed this real estate to Eva Drabik, upon the promise of herself and her husband that she, the widow, could continue to reside on the property during the rest of her lifetime and that they would provide for and support her during her natural life.

This action was brought by the widow to set aside that conveyance on the grounds that the Drabiks had not complied with the contract.

The Lucas Common Pleas declined to set aside the conveyance but took an accounting-of the amount with which the Drabiks were chargable and made same a charge upon the real estate and ordered a compliance with the contract in the future. The Drabiks appealed, contending that the court had no power to order support in the future, but could only rule on setting aside the conveyance. The Court of Appeals held:

1. In view of the fact that the petition contained a prayer “for such other and further relief as may be deemed equitable and proper,” the order for support and continued residence on said property was within the power of the court.

2. The widow,- having only a dower interest in the residence property, the finding of the court that there was a balance of $1500 due her is too large, and this amount will be reduced to $1000.

3. Such charge of $1000 should be made a charge upon said real estate.

4. In accordance with the terms of the contract, the widow is entitled to exclusive possession of the premises during her natural life.

Decree accordingly.