Bogar v. Baker
| Decision Date | 21 September 2017 |
| Docket Number | NO. 16 MA 0138,16 MA 0138 |
| Citation | 97 N.E.3d 1109,2017 Ohio 7766 |
| Parties | Charles A. BOGAR, Plaintiff–Appellant v. Mark BAKER, et al., Defendants–Appellees |
| Court | Ohio Court of Appeals |
Atty. Thomas G. Carey, Jr., Atty. Matthew M. Ries, Harrington, Hoppe & Mitchell, LLC, 108 Main Avenue, Suite 500, Warren, Ohio 44481, for Plaintiff–Appellant
Atty. David P. Powers, Stacey & Powers Co., LPA, 33 Pittsburgh Street, P.O. Box 255, Columbiana, Ohio 44408, for Defendants–Appellees
JUDGES: Hon. Cheryl L. Waite, Hon. Gene Donofrio, Hon. Carol Ann Robb
{¶ 1} Appellant, Charles A. Bogar, the sole specific beneficiary in the last will and testament of Thomas E. Bogar, appeals the judgment entry of the Probate Division of the Mahoning County Court of Common Pleas in this will construction case. Appellant contends that the probate court erred in concluding that a specific bequest of "the real estate located at 13300 Diagonal Road, Salem, Ohio together with all contents of said real estate" does not include farm equipment and vehicles located on the property. (8/31/16 J.E., p. 2.) Appellees are Abraham Alexander, Benjamin Alexander, Brandon Beeson, Susan Bogar, and Jennifer Bogar, the residual beneficiaries, and Mark Baker, who is both a residual beneficiary and the executor of the will. For the following reasons, we find that there is a latent ambiguity in the will and remand this matter for further consideration by the probate court.
{¶ 2} This matter was scheduled for an evidentiary hearing before the probate court, but the parties waived the hearing and submitted the matter on briefs. Twelve written stipulations and the affidavit of Mary Jane Bogar were the only extrinsic evidence before the probate court. The following facts are taken from the stipulations unless otherwise noted.
{¶ 3} Thomas E. Bogar, Appellant's brother, died testate on June 20, 2014. An inventory and appraisal of his estate was filed with the probate court on December 30, 2014 and approved by the court. (5/25/16 Stipulations, p. 1.) Item 9 provides a valuation of $99,705.00 for all personal property found and located at 13300 Diagonal Road, Salem, Ohio. The inventory and appraisal also includes an itemized appraisal of the personal property.
{¶ 4} Thomas's last will and testament contained only two bequests, one specific and one residual. Item II reads, in its entirety:
I give, devise, and bequeath to my brother, CHARLES A. BOGAR, if he shall survive me, the real estate at 13300 Diagonal Road, Salem, Ohio, together with all contents of said real estate, if owned by me at the time of my death.
(Thomas E. Bogar Will, p. 1.) The parties stipulated that Thomas owned the real estate at 13300 Diagonal Road, Salem, Ohio at the time of his death. According to the affidavit of Mary Jane Bogar, Thomas's aunt and a resident of 13300 Diagonal Road, the real estate measured roughly 31 acres, and included a house and out buildings. (5/25/16 Mary Jane Bogar Aff.) Mary Jane also averred that Thomas was "the owner of all tools, farm equipment and machinery, all farm vehicles, all lawn and garden equipment, and all of the contents of all of the outbuildings and garage building located at the premises."Id.
{¶ 5} Item III, the residual clause, reads in its entirety:
All the rest, residue and remainder of my property whether real, personal or mixed and wheresoever situated which I may own or have the right to dispose of at the time of my death, I give, devise and bequeath to ABRAHAM ALEXANDER, BENJAMIN ALEXANDER, BRANDON BEESON, my niece, SUSAN BOGAR, my niece, JENNIFER BOGAR, and MARK BAKER, share and share alike or to the survivor or survivors of them.
{¶ 6} During the administration of the will, a dispute arose between Appellant and Baker, who is both the executor and a residual beneficiary, regarding the correct interpretation of the phrase "all contents of said real estate" in the specific bequest to Appellant. Appellant interpreted that phrase to include all of the personal and other property physically located on the real estate on the date of Thomas's death. Baker argued that the phrase was to be interpreted to include only household goods and personalty.
{¶ 7} The probate court agreed with Baker. According to the judgment entry, the inventory valued Thomas's tangible personal property at $99,705.00; intangible personal property at $624,811.06; and real property at $173,070.00, for a gross estate value of $915,586.06. The appraisal divided the tangible personal property into three categories: (1) Trucks–Auto–Farm Equipment; (2) Shop Tools–Miscellaneous; and (3) Heated Shop. While the appraisal was cited by the probate court in the judgment entry, it was not included in the record on appeal. The probate court found that all of the personal property in the category of Trucks–Auto–Farm Equipment ("vehicles and farm equipment") passed to Appellees through the residual clause of the will.
{¶ 8} The probate court stated that there was no evidence showing that Thomas intended to include the vehicles and farm equipment in the specific bequest to Appellee. The court reasoned that "any item such as a motor vehicle or specialized farm vehicle or equipment would be excluded from being considered personality [sic] items due to the fact of their very nature of increased value and the ability to title such items." (8/31/16 J.E., p. 2.)
{¶ 9} The probate court's reliance on the term "personalty" is derived from a 1944 case from the Second District Court of Appeals, McAlpin v. Obenour , 75 Ohio App. 268, 61 N.E.2d 820 (1944). The McAlpin panel held that a specific bequest of "all my personal property located in the room now occupied by me" did not include certificates of deposit or checks, even though the certificates and checks themselves were found in that room after the death of the testatrix. Id. at syllabus. Because the probate court found that there was almost no caselaw addressing the evidentiary standard to be used in will interpretation cases, the court adopted the reasoning in McAlpin , holding, "[ McAlpin ] Court relied upon the fact that there was no extrinsic evidence presented that showed it was the intention of the decedent to give the Certificates of Deposit and the check to the specific bequest beneficiary." (Emphasis in original.) (8/31/16 J.E., p. 2.)
{¶ 10} The probate court also relied on a New York case, Ball v. Dickson , 83 Hun 344, 31 N.Y.S. 990 (1894) (cited in McAlpin ), in which the court held that a bequest of "all the personal property in the house and in the other buildings on said premises" did not include promissory notes, certificates of deposits, and bank passbooks which were, at the time of the will's execution, in the safe at the dwelling. Id . at Headnote. The Ball court held:
If we should give to the words "personal property," in the first clause of the will, their broadest and most comprehensive signification, they would undoubtedly carry the contents of the safe. Property is divided into two general divisions, real property and personal property. Had the will failed to dispose of the contents of the safe by the residuary clause, there are authorities justifying the giving to such words their broadest meaning; but we are not required to adopt that rule here, for, as stated, if the property in question was not bequeathed to William, it passed to the legatees mentioned in the residuary clause.
{¶ 11} Based on the foregoing caselaw, and the absence of extrinsic evidence establishing Thomas's intent to transfer "titled vehicles and farm equipment" to Appellant, the probate court defined "contents of said real estate" as "all household goods, personal property furnishing [sic], including all contents of the outbuildings which are typically found in a home environment." (8/31/16 J.E., p. 3.) As previously stated, the probate court determined that motor vehicles, specialized farm vehicles and equipment were excluded from the specific bequest because they were of "increased value" and because of "the ability to title" these items. Id.
{¶ 12} Finding that an ambiguity existed in the specific bequest because the meaning of "contents of said real estate" was not clear, the probate court resolved the ambiguity in favor of the residual beneficiaries using McAlpin and Ball, supra .
{¶ 13} An appellate court reviews the decision of the probate court to construe the language of a will on a de novo basis as a matter of law. Belardo v. Belardo , 187 Ohio App.3d 9, 2010-Ohio-1758, 930 N.E.2d 862, ¶ 7 (8th Dist.) ; Church v. Morgan , 115 Ohio App.3d 477, 481, 685 N.E.2d 809 (4th Dist. 1996). Hence, we review the judgment independently and without deference to the determination of the probate court.
{¶ 14} " ‘In the construction of a will, the sole purpose of the court should be to ascertain and carry out the intention of the testator.’ " Polen v. Baker , 92 Ohio St.3d 563, 565, 752 N.E.2d 258 (2001), quoting Oliver v. Bank One, Dayton, N.A. , 60 Ohio St.3d 32, 34, 573 N.E.2d 55 (1991). This intent must be ascertained from the language used in the will. Id . at 34, 573 N.E.2d 55, citing Carr v. Stradley , 52 Ohio St.2d 220, 371 N.E.2d 540 (1977), paragraph one of the syllabus. The words used in the will, " ‘if technical, must be taken in their technical sense, and if not technical, in their ordinary sense, unless it appear[s] from the context that they were used by the testator in some secondary sense.’ " Ohio Natl. Bank v. Adair , 54 Ohio St.2d 26, 30, 374 N.E.2d 415 (1978), quoting Townsend's Exrs. v. Townsend , 25 Ohio St. 477 (1874), paragraph three of the syllabus. All the parts of the will must be construed together, and effect, if possible, given to every word contained in the will. Id. at paragraph four of the syllabus.
{¶ 15} The court may consider extrinsic evidence to determine the testator's intent only when the language used in the will creates...
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