Estate of Line, In re

• Decision Date: 18 August 1997
• Docket Number: No. CA96-10-218,CA96-10-218
• Citation: 701 N.E.2d 1028,122 Ohio App.3d 387
• Parties: In re ESTATE OF LINE.
• Court: Ohio Court of Appeals

Page 387

122 Ohio App.3d 387

701 N.E.2d 1028

In re ESTATE OF LINE.

No. CA96-10-218.

Court of Appeals of Ohio Twelfth District, Butler County.

Decided Aug. 18, 1997.

Dallas P. Powers, Franklin, for appellant.

Mary C. Lord, Middletown; Pratt & Singer, and Gregory K. Pratt, Middletown, for appellee, estate of Marie N. Line.

Betty L. Steigerwald, Monroe, pro se.

KOEHLER, Judge.

Plaintiff-appellant, Robert L. Line, appeals an order of the Butler County Court of Common Pleas, Probate Division, denying appellant's demand for a preliminary and permanent injunction in a will construction action.

Marie N. Line ("the testator") died testate on July 25, 1994. She was survived by her three children: appellant, Jeanne Woodrey, and Betty L. Steigerwald. On August 11, 1994, the testator's will, dated July 24, 1989, was admitted to probate and Woodrey was appointed executor of the estate in accordance with the provisions of the will. (Woodrey is hereinafter referred to as "the executor.") The testator's three children are all beneficiaries under the will. On September 8, 1995, appellant filed a complaint in the probate court against defendants-appellees, the estate of Marie N. Line and the executor, seeking a construction of the will and to enjoin the executor from selling the testator's real property. ¹ An amended complaint filed September 27, 1995 added Steigerwald as a defendant.

The will provided in Items Two, Three, and Five as follows:

"ITEM TWO: I give and bequeth [sic ] my personal effects to my daughters, Jeanne Woodrey and Betty L. Steigerwald, share and share alike.

"ITEM THREE: I give, devise and bequeath all the rest, residue and remainder of my property, real and personal, tangible and intangbile [sic ], of every kind and description, wherever situated, absolutely and in fee simple, to my children, Robert L. Line, Jeanne Woodrey and Betty L. Steigerwald, share and share alike or to the lineal descendants per stirpes of any deceased child.

"* * *

"ITEM FIVE: I nominate and appoint my daughter, Jeanne Woodrey, to be the Executor of my Will, hereby authorizing and empowering her to compound, compromise, settle and adjust all claims and demands in favor of or against my estate; and to sell, at private or public sale, at such prices, and upon such terms of credit or otherwise, as she may deem best the whole or any part of my real or personal property, and I direct my executor to sell all my tangible personal property and real property as soon as practicable after the time of my decease giving to my said Executors if named herein the same right as other persons to purchase from my estate and to execute, acknowledge and deliver deeds and other property instruments of conveyance thereof to the purchaser or purchasers, and to pay any commissions or fees connected with said sale or sales. No purchaser from my Executor need see to the application of the purchase money to or for the purposes of the trust, but the receipt of my Executor shall be a complete discharge and acquittance therefor. My Executor shall have the right to collect rents and pay the expenses of any real estate until such time as it is disposed of. I request that no bond be required of my Executor."

In a memorandum filed November 1, 1995, appellant argued that the residuary clause in Item Three and the testamentary power of sale in Item Five were conflicting provisions that could not be reconciled, and that, as a result, the will had to be construed. Appellant argued that a fair construction of the will was "to give full effect to the dispositive provisions of items two and three, and to treat as administrative the language in item five, which contains no dispositive provisions at all."

In a decision filed on April 23, 1996, the probate court found that the language of the will contained no specific bequest of any of the testator's real property and that Item Three of the will was a residuary clause. The probate court concluded that while legal title to the testator's real property vested in the beneficiaries named in Item Three of the will, "the direction to sell found in item five, when read together with the subsequent phrase that '[m]y Executor shall have the right to collect rents and pay the expenses of any real estate until such time as it is disposed of ' manifest[ed] an absolute or imperative direction to sell and convert her real estate as part of the administration of her estate." (Emphasis sic.) By judgment entry filed October 1, 1996, the probate court denied appellant's demand for a preliminary and permanent injunction and dismissed appellant's complaint. This timely appeal followed.

In his sole assignment of error, appellant argues that the trial court erred in construing the will. More specifically, appellant argues (1) that Item Five cannot be reconciled with Item Three, as Item Five does not contain any order to distribute the proceeds from the sale of the real property; (2) that the probate court erroneously applied the doctrine of equitable conversion, thereby nullifying the only dispositive clause in the will; and (3) that Item Three should prevail over Item Five, as Item Three contained "the most unambiguous language indicating the testator's dispositive intent."

It is well established that in the construction of a will, the sole purpose of the court is to ascertain and carry out the intention of the testator. Oliver v. Bank One, Dayton, N.A. (1991), 60 Ohio St.3d 32, 34, 573 N.E.2d 55, 57-58. Such intention must be ascertained from the words contained in the will. Id. "In construing the will, the court should make every effort to give effect to every provision of the will and to reconcile any apparent inconsistency." Holmes v. Hrobon (1951), 93 Ohio App. 1, 16, 50 O.O. 178, 185, 103 N.E.2d 845, 857.

We note at the outset that while appellant labels Item Three of the will as a residuary clause, his statement that "[n]o other specific bequest or devise [other than in Items Two and Three] is contained in the will" suggests that Item Three is a specific devise of real property. Item Three provides in relevant part that "I give, devise and bequeath all the rest, residue and remainder of my property, real and personal, * * * to my children."

It is well established that the words "all the rest, residue and remainder" are generally indicative of a residuary clause, that is, a clause which disposes of that part of the testator's estate which has not been specifically devised and bequeathed previously. In re Estate of Derifield (1993), 88 Ohio App.3d 559, 562, 624 N.E.2d 361, 362-363. "Although a residuary clause, in a strict sense, would seem to presuppose prior particular bequests or devises, a bequest of 'all' of the testator's property or estate is also treated as a residuary clause." Id. at 563, 624 N.E.2d at 363.

Furthermore, "[a] specific devise of realty is a gift of a specific parcel of land so described in the will as to distinguish it from other land or property." Passoni v. Breehl (P.C.1944), 41 Ohio Law Abs. 315, 320. "Under this definition, a devise of all of a testator's realty * * * is general and not specific." Id. In light of all of the foregoing, we find that item three is a residuary clause and not a specific devise of the testator's real property.

Upon the probate of a testator's will, the title to real property devised under the will vests immediately in the devisees, Woodbridge v. Banning (1863), 14 Ohio St. 328, 331, even though a power of sale may exist in the executor. Smyth v. Anderson (1876), 31 Ohio St. 144, 146-147. While a mere power of sale does not prevent the passage of title to the devisees, a power of sale coupled with a direction to sell confers the right of possession on the executor. Hoffman v. Hoffman (1939), 61 Ohio App. 371, 373-374, 15 O.O. 255, 256, 22 N.E.2d 652, 654, citing Dabney v. Manning (1828), 3 Ohio 321.

Item Five of the will provides:

"I * * * appoint * * * Woodrey, to be the Executor of my Will, hereby authorizing and empowering her * * * to sell * * * as she may deem best the whole or any part of my real or personal property, and I direct my executor to sell all my * * * real property as soon as practicable after the time of my decease * * *. [M]y Executor shall have the right to collect rents and pay the expenses of any real estate until such time as it is disposed of." (Emphasis added.)

The foregoing language does not merely grant a power of sale to the executor, it also explicitly gives the executor a...