Casey v. Gallagher, s. 40061

• Decision Date: 28 June 1967
• Docket Number: Nos. 40061,40085,40084,s. 40061
• Citation: 227 N.E.2d 801,11 Ohio St.2d 42,40 O.O.2d 55
• Parties: , 40 O.O.2d 55 CASEY, Exrx., et al., Appellees, v. GALLAGHER et al., Appellees; Deibel et al., Appellants. CASEY, Exrx., et al., Appellants, v. GALLAGHER et al., Appellees. (Two cases.)
• Court: Ohio Supreme Court

Page 42

11 Ohio St.2d 42

227 N.E.2d 801, 40 O.O.2d 55

CASEY, Exrx., et al., Appellees, v. GALLAGHER et al., Appellees;

Deibel et al., Appellants.

CASEY, Exrx., et al., Appellants, v. GALLAGHER et al., Appellees. (Two cases.)

Nos. 40061, 40084, 40085.

Supreme Court of Ohio.

June 28, 1967.

Syllabus by the Court

1. The legal meaning of the word, 'heirs,' denominating those designated by the statute of descent and distribution to inherit from the ancestor as of the time of application of such statute, will be followed unless it clearly and affirmatively appears that the testator intended a different meaning. (Holt v. Miller, 133 Ohio St. 418, 14 N.E.2d 409; Cultice v. Mills, 97 Ohio St. 112, 119 N.E. 200, followed.)

2. In a remainder to the 'heirs' of a designated ancestor, unless a contrary intent is manifested, the time of the determination of such heirs is the date of death of the designated ancestor.

3. In such case, a contrary intent is manifested and no interest vests in the heirs of testator's children until the time of distribution, where the testator expressly provided for the distribution of the corpus of a testamentary trust at the death of the survivor of his children 'to the lawful heirs of my children who are of my blood,' in accordance with his general plan that property passing under his will remain in his bloodline, and where the determination of the heirs of each child at such future time of distribution is necessary to effectuate such general plan. (Ohio National Bank of Columbus, Trustee, v. Boone, 139 Ohio St. 361, 40 N.E.2d 149, 144 A.L.R. 1150, distinguished.)

4. Where the corpus of a testamentary trust is to be divided upon its termination among 'the lawful heirs of my said children, who are of my blood an equal share thereof to the heirs of each of my children,' the plain language of the devise requires that the corpus be divided into three stocks, three being the number of testator's children, and that each such third be distributed among the heirs of each of testator's respective children who are of his blood, by division and subdivision of each such third according to the relative degrees of consanguinity of those entitled to each such third.

5. When a testator's will clearly reveals a general plan or intention as to the disposition of his property, and a situation arises that is not within the express language of the will, such general plan may be regarded as existing but incompletely expressed, and the failure to provide for the situation inadvertent rather than intentional, and a gift may be implied for the purpose of completing the general plan.

6. Where a testator's general plan was the property passing under his will remain in his bloodline, and, as to the income from his testamentary trust before its termination, his will provides that 'in case of the death of any of my said children leaving a child or children the issue of their bodies, then such child or children shall take the share of said income to which the parent of such child or children would have been entitled if living,' and 'in case of the death of any of my children leaving no such child or children * * * pay the income which such child would have received, if living, to the other children or their issue, if dead, in equal shares, the issue of such deceased children taking the share which the parent would receive if living * * *,' the testator's intention was to benefit with income living members of the classes of his children and their issue, per stirpes; and upon the death without issue, and before the trust's termination, of a grandchild of the testator who had survived his parent, thereby becoming entitled to income, the grandchild's estate in income ceased, his personal representative is not entitled to share in the trust income, and a gift over of his income share to the other children of his parent will be implied.

These proceedings originated in the Court of Common Pleas of Mahoning County upon plaintiffs' petition for the construction of the will of John Gallagher, deceased, for directions to the trustees thereunder (after proper demand under Section 2107.46, Revised Code) and for a declaratory judgment determining the rights of the parties in and to the corpus of the trust estate created thereby. Plaintiff, Mary H. Casey, is proceeding as executrix under the will of John P. Gallagher, deceased, a grandson of testator-settlor, John Gallagher, and individually as a devisee under John P. Gallagher's will.

Both the Court of Common Pleas and the Court of Appeals found that they had jurisdiction of the issues and of all parties in interest by general appearance or proper service of process thereon, and these findings are not challenged on these appeals. This cause was tried in the Court of Appeals de novo, on appeals on questions of law and fact.

Both courts found substantially identical facts, from a stipulation entered into by the parties herein and the brief testimony of two witnesses, which findings of fact may be summarized as follows:

John Gallagher died on January 6, 1924, his will being duly admitted to probate by the Probate Court of Mahoning County. This will established a testamentary trust, under which duly qualified trustees are currently serving.

At the time of the execution of the will on June 2, 1921, John Gallagher had a wife, Rose Gallagher, and three natural children, Patrick Gallagher, Mary E. Renner and Elizabeth Deibel and 12 natural grandchildren. All the foregoing survived John Gallagher, but Rose Gallagher died about two years after her husband's death. The only testimony in this cause establishes that testator's love and affection for his grandchildren was equal.

Patrick Gallagher died on February 16, 1935, survived by two natural sons, Angus J. and John P. Gallagher. Testator's daughter, Mary E. Renner, died on November 9, 1947, survived by five natural children. Testator's daughter, Elizabeth Deibel, is still living, but one of her children (testator's grandchild), Christopher Deibel, died intestate and without issue on September 8, 1926.

Patrick's son, John P. Gallagher (testator's grandchild), died on June 28, 1952, without issue, but testate, appointing Mary H. Casey (plaintiff herein) executrix and leaving his estate to Mary H. Casey and others, none of whom, including Mary H. Casey, is a blood relative of the testator, John Gallagher.

Testator's will, after providing certain bequests for testator's wife, set up a trustof the entire residue for the benefit of his wife and children, his wife's share being one-third of the income from such trust during her life. The provisions of the will which are in issue are set forth in the opinion.

The dispute as to the trust income concerns Mary H. Casey and John P. Gallagher's other devisees, who claim that vested interests in the trust income and corpus passed to them at John P. Gallagher's death. They are resisted in this contention by Angus Gallagher and, as to income only, by the trustees under testator's will. Mary H. Casey and Angus Gallagher both contend that the corpus is to be distributed per stirpes to the heirs of testator's children of his blood upon the death of Elizabeth Deibel, the survivor of testator's children. The other living grandchildren of testator in turn resist the latter contention as to corpus only, contending that such distribution should be per capita, a one-twelfth share of corpus to each grandchild or his personal representative.

The Court of Common Pleas found that John P. Gallagher's devisees succeeded to his vested interests in the trust income and corpus at his death, and that the corpus was to be distributed per capita upon the death of Elizabeth Deibel, a one-twelfth share to each of testator's grandchildren, or their respective personal representatives.

The Court of Appeals reversed all those determinations, holding in accordance with the contentions of Angus Gallagher above.

This cause is before this court upon the allowance of motions to certify the record.

Jerry F. Whitmer, Akron, for plaintiff-appellees in case No. 40061 and appellants in cases Nos. 40084 and 40085.

Manchester, Bennett, Powers & Ullman and John F. Elsaesser, Youngstown, for appellants in case No. 40061.

Roger F. Day, Columbus, Earl H. Cailor, Youngstown, Shelby V. Hutchins, Kincaid, Palmer & Randall, Columbus, Bert Rigelhaupt, Paul L. Booth, Youngstown, and John A. Schwemler, Cleveland, for appellees.

O'NEILL, Judge.

In the instant cause this court is called upon to review the construction placed upon the will of John Gallagher, testator and settlor herein, by the Court of Appeals for Mahoning County.

It is settled beyond all possible doubt that the function of the court in a will construction case is to determine and apply the testator's intention, as expressed in the language of the whole will, read in the light of the circumstances surrounding its execution.

The Court of Appeals found, and this court agrees, that John Gallagher's will reveals a general intention or overall design, first to benefit his wife and natural children with trust income for their lives, and further to retain his property in his bloodline after the first purpose is accomplished. In every situation specifically provided for in the will, blood relatives of the testator are to take (except those provisions for the benefit of testator's own wife).

Thus, upon the death of a child of testator 'leaving a child or children the issue of * * * (testator's child's body),' such issue are to take the dead parent's share of income. Standing alone and unmodified by the context of a will, the term, 'issue,' would not include even adopted children (56 Ohio Jurisprudence 2d 154, Wills, Section 622; 3 Restatement of the Law, Property, Sections 292, comment a, and 287), and the inclusion of the language, 'of their bodies,' strengthens that conclusion.

As a further indication of intent to confine income payments to blood relatives, the...