804 N.E.2d 1044 (Ohio Com. 2003), 2002003629, Fifth Third Bank v. Harris

Docket Nº:2002003629.
Citation:804 N.E.2d 1044, 127 Ohio Misc.2d 1, 2003-Ohio-7361
Opinion Judge:JAMES C. CISSELL, Judge.
Party Name:FIFTH THIRD BANK, Trustee v. HARRIS et al. [*]
Attorney:James Chalfie, Cincinnati, for spouse and children. James Chalfie, for spouse and children. Christine Buttress, for adult adoptees. Douglas Hart, for trustee. Colleen Laux, guardian ad litem for unborn heirs.
Case Date:June 24, 2003
Court:County Court of Ohio
 
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Page 1044

804 N.E.2d 1044 (Ohio Com. 2003)

127 Ohio Misc.2d 1, 2003-Ohio-7361

FIFTH THIRD BANK, Trustee

v.

HARRIS et al. *

No. 2002003629.

Probate Court of Hamilton County, Ohio.

June 24, 2003.

Page 1045

[127 Ohio Misc.2d 2] James Chalfie, Cincinnati, for spouse and children.

Christine Buttress, Cincinnati, for adult adoptees.

Douglas Hart, Cincinnati, for trustee.

Colleen Laux, Cincinnati, guardian ad litem for unborn heirs.

JAMES C. CISSELL, Judge.

{¶ 1} This matter came on to be heard on April 28, 2003, on the complaint of Fifth Third Bank, as trustee of the Laura S. Lawwill Irrevocable Living Trust, for instructions and declaratory relief regarding the interpretation of the living trust agreement. Present were counsel for the trustee; counsel for Lisa Roland (surviving spouse of Richard Lawwill) and Ashley and Richard Lawwill Jr. (children of Richard Lawwill Sr.); counsel for JoAnne and William Harris (adult adoptees of Benjamin Lawwill); and counsel for the unborn heirs of the beneficiaries of the trust agreement. The trustee has asked this court for instructions as [127 Ohio Misc.2d 3] to whether the Harrises, as adult adoptees, are legally entitled to share in the trust estate as children of Benjamin Lawwill. The trustee also has asked for instructions as to the legal effect of the power of appointment contained in the trust, which was exercised by Richard Lawwill in his last will and testament in favor of his wife.

{¶ 2} Laura S. Lawwill executed her living trust agreement on November 16, 1956. She died in 1984. She was survived by her son, Benjamin Lawwill, who is still living. Benjamin Lawwill is the natural father of Richard Lawwill Sr. (d.o.b. 8/17/61), who died after reaching 21 years of age on June 2, 2002. Richard Lawwill Sr. was survived by his wife, Lisa Paul Roland, and two children, Richard Lawwill Jr. and Ashley Lawwill, who are both now adults.

{¶ 3} The relationship between Benjamin Lawwill and his son was strained. Richard Lawwill Sr. was eventually to receive the entire trust estate because he was Benjamin's only child. The court finds that Benjamin devised a method to dilute the share of the trust estate his son Richard would receive by adopting the Harrises.

{¶ 4} On May 6, 2002, Benjamin Lawwill adopted two adults. They are JoAnne Harris, then age 32 (d.o.b. 9/25/70), and William Harris, then age 54 (d.o.b. 3/25/48), in the state of Texas. The Harrises are husband and wife. Benjamin Lawwill met William Harris in 1975 and JoAnne Harris in approximately 1997, when she married William Harris. Neither adoptee was a minor child at the time of the adoption, nor were they minors when they met Benjamin Lawwill. Neither is mentally retarded or permanently disabled.

{¶ 5} The trust agreement states at Item First:

"The Trustee shall hold and invest the assets of the trust for the following purposes:

"1. To pay to, or expend for the benefit of, the child or children of Benjamin Lawwill, the son of trustor, so much net income or of the principal as in the judgment and discretion of the Trustee may be required for the maintenance, support, education and comfort of any such child.

"2. Upon the youngest child of Benjamin Lawwill then surviving reaching the

Page 1046

age of twenty-one years, the Trustee shall distribute the assets then remaining in its hands to the then surviving issue of Benjamin Lawwill, per stirpes.

"3. In case of the death of any child of Benjamin Lawwill prior to distribution of the trust, the Trustee shall hold or distribute the share which he would have received as distribution to such of his surviving spouse or issue as he may by his Last Will and Testament have appointed in accordance with the terms of such appointment. * * *"

{¶ 6} The trust agreement further provides at Item Seventh, Paragraph 1:

[127 Ohio Misc.2d 4]"The term 'issue' or 'lineal descendant' as used herein shall include adopted children and their issue."

{¶ 7} In 1980, the Trustee brought an earlier...

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