258 N.E.2d 277 (Ohio Com.Pl. 1970), 77193, Davis v. Davis

Docket Nº77193-C.
Citation258 N.E.2d 277, 24 Ohio Misc. 17
Opinion JudgeHENDERSON, Judge.
Party NamePauline R. DAVIS as Special Administratrix of the Estate of William V. Davis, deceased, Plaintiff, v. Pauline R. DAVIS et al., Defendants.
Attorney[24 Ohio Misc. 18] Brouse, McDowell, May & Bierce, Akron, for Pauline R. Davis. Obenour, Baker, Nehrer, Chapman & Coombs, Akron, for defendants Kriss V. Davis, Penny M. Boden, Marilynne P. Plavsity, Edwin L. Davis, Trustee. Robert N. Dineen, Youngstown, attorney and guardian ad litem for defendan...
Case DateApril 29, 1970
CourtCourt of Common Pleas of Ohio

Page 277

258 N.E.2d 277 (Ohio Com.Pl. 1970)

24 Ohio Misc. 17

Pauline R. DAVIS as Special Administratrix of the Estate of William V. Davis, deceased, Plaintiff,

v.

Pauline R. DAVIS et al., Defendants.

No. 77193-C.

Court of Common Pleas of Ohio, Mahoning County, Probate Division.

April 29, 1970

Page 278

[24 Ohio Misc. 18] Brouse, McDowell, May & Bierce, Akron, for Pauline R. Davis.

Page 279

Obenour, Baker, Nehrer, Chapman & Coombs, Akron, for defendants Kriss V. Davis, Penny M. Boden, Marilynne P. Plavsity, Edwin L. Davis, Trustee.

Robert N. Dineen, Youngstown, attorney and guardian ad litem for defendant William Davis, III, a minor.

OPINION

HENDERSON, Judge.

This is an action for a declaratory judgment brought by the Plaintiff Pauline R. Davis as special administrix in which the judgment of the court is sought as to who is entitled to the distribution of the estate. In an earlier opinion, this court, upon the application of Pauline R. Davis for appointment as executrix, reserved judgment upon the permanent appointment until the determination of whether the provisions for Mrs. Davis in the will were impliedly revoked by the divorce of the parties coupled with a property settlement. In the matter of the Estate of William B. Davis, deceased (Prob.Ct. Mah., 1969), 50 Ohio O.2d 37, 22 Ohio Misc. 14, 256 N.E.2d 281.

William V. Davis and Pauline R. Davis were married December 7, 1957. On October 17, 1959, William V. Davis executed his last will and testament in which he left $100 to each of his three adult children by a prior marriage, Kriss V. Davis, Penny M. Boden, and Marilynne P. Plavsity. In Item Five the testator provided as follows:

'I give, devise and bequeath all the rest, residue and remainder of my estate, both real and personal, of every kind, and description, which I may own or have the right to dispose of at the time of my decease, to my beloved Wife, Pauline R. Davis, to be hers, absolutely and forever.' [24 Ohio Misc. 19]

Item Six of the testator's will provided in part as follows:

'In the event that my Wife should predecease me or we should die as the result of a common accident, or should die within thirty (30) days of each other, then I give, devise and bequeath all the rest, residue and remainder of my estate to my Brother, Edwin L. Davis, of Columbus, Ohio, in trust, however, for the following uses and purposes, to-wit:

My Trustee, Edwin L. Davis, shall have and distribute the net income of said trust estate for the benefit of my Son, William Davis III, until such time as my son has obtained the age of twenty-five (25) years. When my Son has attained the age of twenty-five (25) years, my said Trustee is authorized to pay the balance of the trust fund to my Son and terminate the trust.'

The balance of Item 6 provides at length for the powers of the Trustee. In Item Seven, the testator appointed his wife Pauline R. Davis as executrix, and made an alternate appointment as follows:

'In the event that my Wife, Pauline R. Davis, should predecease me, or should we both die as the result of a common accident or catastrophe, or she prefers not to serve for any reason, then I make, nominate and appoint my Brother, Edwin L. Davis, as Executor of this, My LASTWILL and TESTAMENT, granting unto him the same powers and privileges previously granted to Pauline R. Davis and again request that no bond be required of my Executor.'

Testator's minor son William Davis III was born of his marriage with Pauline R. Davis.

On May 17, 1966 the decedent and Pauline R. Davis entered into a separation agreement which provided for a division of the properties of the parties, alimony for the wife and support for their child. Under the terms of Item 9 of the separation agreement, Pauline R. Davis released the decedent from all claims of inheritance. On June 5, 1967 the Court of Common Pleas of Mahoning County, Ohio granted the decedent a divorce, upon his petition, his wife having been served with summons

Page 280

but being in default [24 Ohio Misc. 20] of answer and not being present at the hearing. The decree of divorce found the separation agreement to be fair and equitable to both parties, approved it and made it a part of the decree.

Counsel for the testator's children by his first wife maintained that the provisions of the will for the benefit of his last wife are impliedly revoked by the divorce decree and property settlement, that the conditions under which the trust was provided for the benefit of the minor son (i. e., the prior or simultaneous death of the wife) never materialized, and that therefore all four children should take equally by intestate succession. It is further maintained by them that the alternate executor, Edwin L. Davis should be appointed executor since Pauline R. Davis under the circumstances is not a suitable person.

Counsel for the minor trust beneficiary maintain that if the residuary bequest to Pauline R. Davis has been impliedly revoked, then the residuary estate passes to the trust under Item 6 in accordance with the plain general intent or pattern of the testator; and that, furthermore, a gift over to the trust should be made by implication. Counsel observe that if the gift to the trust is not upheld a gross distortion of the manifest intent of the testator, and a complete frustration of his testamentary plan will have taken place.

Counsel for Pauline R. Davis concede that if the separation agreement is valid she cannot take under the will. They maintain, however, that the separation agreement is invalid, or, in the alternative, that Pauline R. Davis is entitled to rescind it, and that in either case the separation agreement does not revoke by implication the residuary provision for Pauline R. Davis, the divorced wife. Counsel urge that the separation agreement is invalid because it is not fair, reasonable or just in that it provides for a grossly inadequate property division for the wife-$12,000 in property and $23,000 of life insurance compared with an estimated gross estate of $180,000, and indefinite alimony provisions for the wife. Counsel urge that Pauline R. Davis was not represented by independent counsel when the contract was prepared and signed, that she did not fully [24 Ohio Misc. 21] understand it and did not freely sign it. Counsel further contend that because of decedent's failure to transfer title to a parcel of real estate and to perform other obligations of the separation agreement, the latter should be rescindable by her.

As pointed out in the court's earlier opinion, the law of Ohio is well established that a divorce, coupled with a full property settlement, is such a subsequent change in the circumstances of the testator that any legacy or bequest in a will executed during marriage for the benefit of the divorced wife is impliedly revoked. Younker v. Johnson (1954) 160 Ohio St. 409, 52 Ohio O. 320, 116 N.E.2d 715; O.R.C. Sec. 2107.33. But divorce alone, without a separation agreement executed during coverture, does not impliedly revoke a devise or bequest for either one of the divorced parties. Charlton v. Miller (1875) 27 Ohio St. 298; Codner v. Caldwell (1951) 156 Ohio St. 197, 46 Ohio O. 89, 101 N.E.2d 901; Lang v. Leiter (C.A., Wood, 1956) 103 Ohio App. 119, 3 Ohio O.2d...

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