Bool v. Bool, 34518

• Decision Date: 23 May 1956
• Docket Number: No. 34518,34518
• Parties: , 61 A.L.R.2d 440, 59 O.O. 356 BOOL, Co-Ex'r, Appellant, et al., Appellees, v. BOOL, Appellant; University Hospitals of Cleveland et al., Appellees.
• Court: Ohio Supreme Court

Page 262

165 Ohio St. 262

135 N.E.2d 372, 61 A.L.R.2d 440, 59 O.O. 356

BOOL, Co-Ex'r, Appellant, et al., Appellees, v. BOOL, Appellant;

University Hospitals of Cleveland et al., Appellees.

No. 34518.

Supreme Court of Ohio.

May 23, 1956.

Syllabus by the Court.

1. Where the subject of a specific bequest has been extinguished in the lifetime of a testator, such bequest is adeemed, and the designated beneficiary thereof is wholly deprived of it or any property in lieu of it, in the absence of a contrary expression in the will.

2. Where a testator has bequeathed stock or securities of a corporation, and at the time of his death such stock has been redeemed by the corporation by the deposit of money, in accordance with the articles of incorporation under which such stock was issued, and where by the terms of such articles the testator lost his interest in the corporation, except his right to receive his share of the deposit, and where he retained his certificates of stock and did not collect the proceeds on deposit, the certificates of stock, as evidence of his right to his share of such deposit, constitute securities until such time as the proceeds of the deposit are collected.

On February 24, 1954, Anne Elizabeth Bool, Herbert C. Jackson, and Central National Bank of Cleveland, executors of the last will and codicil of Samuel E. Bool, deceased, instituted an action in the Probate Court of Cuyahoga County by filing a petition for a declaratory judgment.

In their petition plaintiffs ask the Probate Court for a construction of the provisions of items IV, V and VI of the will and of the provisions of item II of the codicil and for an order directing the executors as to the person to whom the proceeds of the redemption of certain shares of stock, held by the decedent, should be distributed.

It is stipulated by all the parties to the action that the facts necessary to a decision in the case are correctly and adequately set forth in the allegations of the petition and the exhibits attached thereto.

The defendants in the action are Anne Elizabeth Bool, the surviving daughter of the decedent, who would be the only person entitled under the provisions of Section 2105.06, Revised Code, to distribution of the decedent's entire residuary estate if he had died intestate, and who is, likewise, a beneficiary under the provisions of items II, IV and V of the will.

Defendants University Hospitals of Cleveland, Cleveland Society for the Blind, and Home for Aged Women of Cleveland, a. k. a. Amasa Stone House, are named as contingent beneficiaries under the provisions of item VI of the will. Defendant Central National Bank of Cleveland is designated under the will as trustee of a testamentary trust to be established in accordance with the provisions of such will in the event that the conditions set forth in item V occur.

Defendant C. William O'Neill, attorney general, is a defendant in accordance with the provisions of Section 109.25, Revised Code.

Item IV of the will reads:

'If my daughter, Anne Elizabeth Bool, survives me, I give, devise and bequeath to her all the remainder of my estate which I may own or of which I have the right to dispose by power of appointment or otherwise at the time of my death, except any stock or securities which I may own issued by the Mather Iron Company. If my said daughter shall not survive me, but shall have issue living at the time of my death, the property disposed of in this item shall be disposed of as is hereinafter provided in item V, but if there be no issue of my said daughter then living the same shall be distributed in accordance with the provisions in item VI. * * *'

Item V of the will reads:

'If my daughter, Anne Elizabeth Bool, survive me, or if she predeceases me and leaves issue living at the time of my death, then I give and bequeath any stock or securities issued by Mather Iron Company to Central National Bank of Cleveland, Cleveland, Ohio, and its corporate successors in trust for the uses and purposes as hereinafter set forth.'

Anne Elizabeth Bool is living but has no living lineal descendants.

At the date of his death, December 4, 1953, Samuel E. Bool had in his possession certain certificates issued by Mather Iron Company, entitled 'class A preferred stock,' which state upon their face that he was the owner of 5,004 shares of such stock, and which contain a statement of the rights, preferences and limitations imposed upon such stock by the articles of incorporation of the company. Mather Iron Company, having taken all necessary action to redeem its class A preferred stock, notified the holders thereof, including Samuel E. Bool, by notice dated February 20, 1953, that all shares of such stock had been called for redemption on March 31, 1983; that the redemption price of all such shares had been deposited in cash with the Cleveland Trust Company; that each and every holder of such shares was required to deliver and surrender the certificates for shares on or before March 31, 1953, for redemption at the redemption price; and that after March 31, 1953, no holder of class A preferred stock of the Mather Iron Company should have any right as a shareholder, except the right to receive the redemption price thereof.

At the date of his death, Samuel E. Bool had not surrendered his class A preferred stock shares for redemption, and the certificates for them are in the hands of his executors.

In item VI of the will it is provided:

'In the event my daughter or her children, or issue of her children, do not survive so as to receive distribution of my property as herein disposed of, then the same shall be distributed as follows:

'One-half to the University Hospitals, Inc., of Cleveland, one-half of which to be used for the support and maintenance of crippled children at Rainbow Cottage and the other one-half for maintenance and support of Babies and Childrens Hospital now known as McDonald House, presently located at 2065 Adelbert Road, for the use and maintenance of said hospitals;

'One-quarter to the Cleveland Society for the Blind, presently located at 2275, East 55th Street, for the use and maintenance of said society;

'One-quarter to the Amasa Stone House, presently located at 975 East Blvd., or any successor thereto, but if such organization be not in existence or have any successor, the amount so designated shall be applied to any home or organization in Greater Cleveland maintained for the purpose of caring for aged women.'

The various defendants filed appropriate answers, and, upon a hearing in the Probate Court, Anne Elizabeth Bool contended that the proceeds deposited in the Cleveland Trust Company for the redemption of the class A preferred stock involved herein should be distributed to her as though decedent had died intestate with reference to them, whereas defendants University Hospitals of Cleveland, Cleveland Society for the Blind, and Home for Aged Women of Cleveland contended that such proceeds were subject to the contingent provisions of item VI of the will.

The Probate Court held that the proceeds deposited in the Cleveland Trust Company should be distributed to Central National Bank of Cleveland as trustee, under the provisions of item V of the will, and were subject to the contingent provisions of item VI of such will.

Upon appeal to the Court of Appeals, that court affirmed the judgment of the Probate Court.

The cause is before this court upon the allowance of a motion to certify the record.

Vorys, Sater, Seymour & Pease, Columbus, Corrigan, McMahon & Corrigan, Cleveland, Davis, Polk, Wardwell, Sunderland & Kiendl and Rose Lehman Stein, New York City, for appellants.

Thompson, Hine & Flory, Cleveland, for appellees Herbert C. Jackson and Central Nat. Bank of Cleveland, co-executors, and Central Nat. Bank of Cleveland, trustee.

Arter, Hadden, Wykoff & Van Duzer, Cleveland, for appellee University Hospitals of Cleveland.

Harold T. Clark and Edwin D. Williams, Cleveland, for appellee Cleveland Soc. for the Blind.

Squire, Sanders & Dempsey, Cleveland, for appellee Home for Aged Women of Cleveland, a. k. a. Amasa Stone House.

C. William O'Neill, Atty. Gen., Ralph Klapp and Neva H. Wertz, Columbus, for appellee State of Ohio.

STEWART, Judge.

This cause was ably briefed and argued in this court by counsel for all parties, and in the brief of Anne Elizabeth Bool There is a succinct summary of facts and issues which all agree is accurate. That summary is as follows:

'By item IV of his will, executed August 4, 1948, Samuel E. Bool gave to his daughter the residue of his estate [approximately $1,000,000] except 'any stock or securities which I may own issued by the Mather Iron Company.' By item V he bequeathed in trust such 'stock or securities.'

'Mr. Bool had owned 5,004 shares of class A preferred stock of Mather Iron Company. These shares were redeemed on March 31, 1953, by appropriate corporate action all of which was duly taken [by deposit in the Cleveland Trust Company of $100 per share].

'Mr. Bool died on December 4, 1953. The certificates evidencing the redeemed shares were...