Bishop v. Fullmer

• Decision Date: 06 February 1960
• Citation: 112 Ohio App. 140,175 N.E.2d 209
• Parties: , 16 O.O.2d 60 BISHOP, Exr., Appellee, v. FULLMER et al., Appellees; Wissler, Appellant.
• Court: Ohio Court of Appeals

Page 140

112 Ohio App. 140

175 N.E.2d 209, 16 O.O.2d 60

BISHOP, Exr., Appellee, v. FULLMER et al., Appellees; Wissler, Appellant.

Court of Appeals of Ohio, Third District, Defiance County.

Feb. 6, 1960.

Syllabus by the Court

1. Where a testator in his will makes a devise of real property, thereafter the testator is adjudged 'an incompetent person by reason of advanced age and physical disability' and, prior to his death, the real property is sold by the guardian, whether the sale of the property operates as an ademption of the devise depends on the testator's mental competency and testamentary capacity to make a new will, at the time of the sale and continuing until his death. If the testator was mentally incompetent and had no such testamentary capacity, the devise is not adeemed by the sale; if he did, then the devise was adeemed.

2. In such case, in an action by the executor for instruction as to whether such sale by the guardian operated as an ademption of the devise contained in the will, the refusal of the court to consider the evidence tending to establish, and to answer an interrogatory respecting, the testator's mental competency to make a new will at the time the real property was sold and at all times thereafter until his death, is prejudicial error.

Alner D. Ryan, Defiance, for appellant.

Reeder C. Hutchinson, Defiance, for plaintiff-appellee.

Randall F. Fullmer, Cleveland, for defendant-appellees.

MIDDLETON, Judge.

This is an appeal on questions of law from the judgment of the Probate Court construing item one of the will of John A. Burke, which reads as follows:

'I give and devise to my son, Donald Burke, the farm on which I reside, containing 60 acres, described as follows: Being the north half of the west half of the southwest quarter of Section 25 and the west half of the southwest quarter of Section 25, in Town 5, north of Range 4 east, in Tiffin Township, Defiance County, Ohio. And in the case of the death of my son Donald, before I do depart this life I desire the said property go to my sister, Cora Wissler.'

The following undisputed facts are disclosed by the record. The son, Donald Burke, named in item one of the will, died prior to the death of the testator. In January 1956, in an action in the Probate Court, John A. Burke was found to be 'an incompetent person by reason of advanced age and physical disability.' Subsequent to the appointment of a guardian the real estate described in item one of his will was sold by the guardian for the sum of $7,800. The sole asset of decedent's estate is the identical money derived from the sale of the real estate remaining at the death of the testator. The plaintiff, as executor of the estate of John A. Burke, deceased, filed this action to obtain the instruction of the court as to the true construction of item one of the will and his duties with regard to the distribution of the remaining assets of the estate. Upon motion, the judgment entered on the first trial was set aside and a new trial ordered. Upon the retrial, all evidence received related solely to the mental capacity of the decedent at the time of the sale of the real estate by the guardian and subsequent thereto until decedent's death. At the conclusion of the second trial, the defendant, Cora Wissler, requested the court to state in writing the conclusions of fact separately from the conclusion of law and to answer the following interrogatory, to wit:

'Was John A. Burke mentally competent to make a new will at the time his farm was sold by his guardian or at any time thereafter until his death?'

Pursuant to said request, the court filed what is designated 'written conclusions of fact and answer to interrogatory.' In the findings the court stated:

'There is only one question raised in this proceeding: Was there an ademption of the devise contained in item one of the will of John A. Burke. At the original hearing, held in December, 1958, the court permitted evidence to be introduced touching upon the mental competency of John A. Burke. This evidence was permitted to be intorduced under favor of Roderick v. Fisher, 97 Ohio App., 95 [122 N.E.2d 475, 51 A.L.R.2d 762,] although at the time of such hearing the court did not believe such testimony was competent.

'In the court's opinion, rendered December 30, 1958, the court did not take into consideration the evidence tending to establish the mental competency of the decedent, John A. Burke, and at that time rendered the opinion that item one of the will was adeemed. However, on March 2, 1959, upon a motion filed by the defendant, Cora Wissler, the court granted a new trial solely on questions of law. And the court found, as in his first original opinion, that item 1st of said will is adeemed. This opinion was rendered under favor of the Bool case [Bool v. Bool] decided May 23, 1956, and reported in 165 Ohio St., 262 [135 N.E.2d 372, 61 A.L.R.2d 440.]

'The question of whether or not there was an ademption is the only finding of fact required to be made and that was answered in both opinions rendered by the court.

'Coming now to the interrogatory, the court respectfully declines to answer for the reason that it is not pertinent to the issues in the case and cites in support thereof, the Bool case heretofore referred to.'

Thereafter, judgment was entered, finding item one of decedent's will was a specific devise of the farm, and that it 'is adeemed as a matter of law by virtue of the extinction of the thing devised and that since said will contains no residuary clause, it is ordered that whatever remains of the proceeds of the sale of said farm, after the payment of the just debts of the estate and the proper expenses of its administration, be distributed by the plaintiff-executor as provided by the laws of descent and distribution of the state of Ohio.' From this judgment, appeal is prosecuted to this court.

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