Commerce Nat. Bank of Toledo v. Browning

• Citation: 48 O.O. 28,107 N.E.2d 120,158 Ohio St. 54
• Decision Date: 18 June 1952
• Docket Number: No. 32822,32822
• Parties: , 48 O.O. 28 COMMERCE NAT. BANK OF TOLEDO v. BROWNING et al.
• Court: Ohio Supreme Court

Page 54

158 Ohio St. 54

107 N.E.2d 120, 48 O.O. 28

COMMERCE NAT. BANK OF TOLEDO v. BROWNING et al.

No. 32822.

Supreme Court of Ohio.

Decided June 18, 1952.

Syllabus by the Court.

Where a will contains general residuary provisions for disposition of any and all of the testator's property not disposed of by other provisions of the will, if a bequest or devise of a part of the residue lapses or is otherwise ineffective, that part of the residue, except as provided by statute and in the absence of provisions of the will or surrounding circumstances justifying the conclusion that the testator expressed a different intention, will ordinarily pass under such residuary provisions of the will to any other parties entitled thereunder to portions of the residue, instead of passing as intestate property.

Plaintiff, as successor trustee of a certain trust fund provided for by paragraph No. 21 of section 10 of division 4 of the last will and testament of Otis Avery Browning, instituted this action for a declaratory judgment to determine the parties entitled to said fund.

Testator executed his will in 1922 and died in 1923. The will was written by testator in longhand. Its words occupy 111 printed pages of the record in this court. It is divided into five divisions.

In the first three divisions, the testator disposed of specific property to certain individuals. In division No. 5 of the testator provided for the details of the organization of a charitable trust to be known as 'The Otis Avery Browning Masonic Memorial Fund.'

As stated at its beginning, 'division number four includes all my personal property of every class, kind and description that has not heretofore been disposed of.' Likewise, near the beginning of his will, in classifying his will by divisions, the testator stated with respect to division No. 4 that it 'embraces and makes disposition of all my personal property not disposed of in other divisions.'

Preceding section 8 of division 4 the testator made in that division certain specific bequests. Thereafter, division 4 reads in part as follows 'Section 8.

'After my executor shall have paid from the personal property included in this division number four, all my lawful and just debts and obligations, and the expenses of my estate, including all state, national and other inheritance taxes and similar charges, and shall have paid in full each and all of the specific gifts and bequests as provided in my will in which a stated cash amount is named, and which shall not for any reason have lapsed, whatever then remains shall be the residue of division number four, as provided in this division of my will.

'Section 9.

'This residue shall be divided by my executors into one hundred (100) equal parts or shares of equal worth and value, to be paid and distributed as hereinafter provided, and I hereby give and bequeath such residue as hereinafter in this division set forth, and the number of the shares which I give to each beneficiary shall determine the amount each beneficiary named shall receive out of such residue, except as may be otherwise specified and provided.' (Emphasis by testator.)

Fifty-four of these shares were allotted to persons referred to by the testator as 'individual beneficiaries' and forty-six to 'The Otis Avery Browning Masonic Memorial Fund.'

The particular trust fund involved in the instant case was created by paragraph No. 21 of section 10 of division 4 under which 'five (5) shares of the said one hundred (100) shares into which the residue of division number four shall be divided' were given to a trustee and the trustee was directed to pay 'the total net income therefrom * * * quarterly * * * to' testator's foster son Roy Avery Browning 'so long as he shall survive me.' That paragraph provides further that 'from and after the decease of Roy Avery Browning, or from and after my death if he shall not survive me, the net income therefrom shall be paid to his widow, if any then surviving him, so long as she lives and remains his widow.' That paragraph then provides that 'upon the death of said Roy Avery Browning, if no widow shall survive him, or upon the death or remarriage of his surviving widow thereafter, or upon my death if neither said Roy Avery Browning nor his unmarried widow shall survive me, in either event if there are living children of the said Roy Avery Browning then surviving' such shares are to be held for and ultimately paid over to such children.

Roy Avery Browning survived the testator and Roy Avery Browning's widow survived him. However, Roy Avery Browning had no children.

The Common Pleas Court held that the five shares held in trust under paragraph 21 of section 10 of division 4 should be distributed to those to whom, as 'individual beneficiaries,' the other 49 of the 54 shares had been allotted.

On appeal to the Court of Appeals on questions of law and fact, the majority of that court held that the five shares held in trust under paragraph 21 of section 10 of division 4 should be distributed to the next of kin of the testator. The dissenting judge, in his opinion, concluded that those shares should be allocated pro rata to the other 95 shares of the residue.

The cause is now before this court on appeal by the successor trustee of 'The Otis Avery Browning Masonic Memorial Fund,' herein referred to as trustee of the Masonic fund, and the cross-appeal of such 'individual beneficiaries,' pursuant to allowance of a motion to certify the record.

Mulholland, Robie & Hickey, Toledo, and Donald W. Fisher, Sandusky, for plaintiff appellee.

Boggs, Boggs & Boggs, Toledo, for appellant.

Doyle, Lewis & Warner and William C. Moore, Toledo, for defendant appellees and cross-appellants.

TAFT, Judge.

Paragraph 21 of section 10 of division 4 provides in part as follows:

'If neither Roy Avery Browning nor his widow, nor any of his children shall survive me, then, and in that event this bequest in trust shall become void, and such interest shall lapse and go to the then living beneficiaries as named under this division number four, in the proportions and in the manner as above set forth.'

However, since Roy Avery Browning survived the testator this provision never became effective.

Since the testator made no other provision for the distribution of the portion of the residue represented by the trust fund provided for by paragraph 21 of section 10 of division 4 of his will in the event of the death of Roy Avery Browning without children, then, on the death of Roy's widow, the trust provided for in that paragraph failed for want of beneficiaries. There was, therefore, a resulting trust of the remainder of that trust fund for the benefit of the testator's estate. See Broadrup v. Woodman, 27 Ohio St. 553.

As clearly indicated by the provisions of the will hereinbefore described in the statement of the case the testator's will contains general residuary provisions for disposition of any and all of the testator's property not disposed for by other provisions of his will. Cf. Davis v. Davis, Exr., 62 Ohio St. 411, 57 N.E. 317, 78 Am.St.Rep. 728; Bane v. Wick, 19 Ohio 328; Oglesbee v. Miller, Exr., 111 Ohio St. 426, 145 N.E. 846.

Where a will thus provides generally for disposition of all of the residue of a restator's estate, any property held on a resulting trust for the testator's estate will ordinarily be deposed of pursuant to such provisions for disposition of the residue. See Devenney v. Devenney, 74 Ohio St. 96, 77 N.E. 688; 57 American Jurisprudence, 976, Section 1452. However, where the resulting trust is of property which was already part of the residue, then, under the rule of law approved by the weight of authority outside of this state, the property so held on such resulting trust for the testator's estate passes under the statutes of descent and distribution as intestate property.

That rule of law, which was adopted from the English common law, is that a portion of a residuary legancy or devise, which is not to a class and which lapses or is otherwise ineffective, does not inure to the benefit of the other residuary devisees or legatees unless the testator has specifically provided that it shall pass to them, but instead it passes as intestate property to the heirs or next of kin of the testator. The cases supporting and rejecting that rule of law are referred to in the annotations at 28 A.L.R. 1237, and 139 A.L.R. 868. See, also, 155 A.L.R. 1420, 1428, 106, 118. In addition, the following recently decided cases support that rule: Estate of Boyle, 1950, 121 Colo. 599, 221 P.2d 357; Estate of Boyle (on rehearing), 123 Colo. 448, 231 P.2d 465; Bruno v. President, Directors & Co., Del.Ch. 1946, 46 A.2d 549; Smith v. Savin, Del.Ch. 1950, 73 A.2d 785; In re Martz's Estate, 1947, 318 Mich. 293, 28 N.W.2d 108; Clark v. Case, 1949, 207 Miss. 163, 42 So.2d 109; Lawes, Exr., v. Lynch et al., Admrs., 1950, 6 N.J. 1, 76 A.2d 885; Davis v. Davis, 1946, 208 S.C. 182, 37 S.E.2d 530.

On the other hand, the following additional cases apparently reject the rule or do not apply it: Will of Reynolds, 1912, 151 Wis. 375, 138 N.W. 1019; Will of Waterbury, 1916, 163 Wis. 510, 158 N.W. 340; Will of Nielsen, 1950, 256 Wis. 521, 41 N.W.2d 369; Roberts, Exr., v. Tamworth, 1950, 96 N.H. 223, 73 A.2d 119 (by construction).

This rule of law has recently been followed in decisions by a Probate Court and a Court of Appeals in this state. Sands v. Ross, Ohio Prob.C., 89 N.E.2d 99; Heebsch, Exr., v. Lonsway, 81 Ohio App. 361, 79 N.E.2d 663. However, it has never been either approved or disapproved by this court.

As stated by Thurman, J., in Bloom v. Richards, 2 Ohio St. 387, at page 391:

'The English common law, so far as it is reasonable in itself, suitable to the condition and business of our people, and consistent with the letter and spirit of our federal and state Constitutions and statutes, has been and is followed by our courts, and may be said to constitute a part of the common law...