Everhard v. Brown

• Decision Date: 05 April 1945
• Docket Number: 195,196.
• Citation: 62 N.E.2d 901,75 Ohio App. 451
• Parties: EVERHARD et al. v. BROWN et al. SAME v. FOREMAN et al.
• Court: Ohio Court of Appeals

62 N.E.2d 901

75 Ohio App. 451

EVERHARD et al. v. BROWN et al.

SAME v. FOREMAN et al.

Nos. 195, 196.

Court of Appeals of Ohio, Ninth District, Medina.

April 5, 1945

[Copyrighted Material Omitted]

Syllabus by the Court.

1. A bequest of a life estate, with remainder over to a class of persons not named but described, is not in and of itself to be regarded as manifesting the intention of the testator that such persons only should take in remainder as could answer the description at the termination of the life estate.

2. In the absence of clear testamentary intent, it will be deemed to have been the will of the testator that the remainders created by such a bequest should vest in interest and title at once upon his death in the persons then comprising the class described, and that the right of possession should be postponed until the life estate has become extinguished.

3. Where there is a devise to a class of persons, to take effect in enjoyment at a future period, the estate vests at the testator's death, subject to open and let in others as they are afterwards born or otherwise come into being before the time of possession; and, if opened to let in others, the previous beneficiaries will be divested of a proportionate interest.

4. A testator is presumed to use words in their ordinary and primary sense and meaning; and in the absence of a clearly expressed intention, the use of the words 'nephew,' 'niece,' 'grandnephew' and 'grandniece,' in creating a class of persons to inherit, should be construed to include only those persons who come with in that degree of kinship.

5. Stability and consistency of adjudication require the presumption that a gift is made with knowledge of adoption and lapse legacy statutes, their construction and their effect.

6. Accrued interest on noncoupon bonds, although not payable at the termination of a life estate, is apportionable in respect of time as between persons successively entitled; for, though payable periodically, interest accrues de die in diem.

Robert H. Jamison and Robert F. Lee, both of Cleveland, for appellees William H. Everhard and others, as trustees, in case No. 195, and appellee William Everhard, Exr., in case No. 196.

Ainsworth & Gilbert, of Medina, and Lawyer & Anderson, of Hammond, Ind., for appellees Bessie Everhard Fair and others.

M. R. Gilbert, of Medina, for appellees Byron S. Dague and others.

Raymond B. Bennett, of Medina, for appellees Raymond B. Bennett, adm'r, and others.

Balluff, Harbeck & LeGrand, of Davenport, Iowa, for appellee Laken C. Lowther.

Burrel Barash, of Galesburg, Ill., for appellee Elizabeth Lowther Harriman.

Pelton & Wilson, of Cleveland, for appellee Russell K. Northrop.

Lynch, Day, Lynch, Cope & Ketterer, of Canton, for appellees Pastors Fund Society of the General Synod of the Lutheran Church and others, in case No. 195, and appellees Stephen H. Finley and others, in case No. 196.

W. E. Pardee and C. T. Moore, both of Akron, and Van Epp & Laribee, of Medina, for Jesse Wall Foreman and others, appellants in case No. 195 and appellees in case No. 196.

B. Harry Reck, of Mendota, Ill., John R. Rood, of Lapeer, Mich., and Van Epp & Laribee, of Medina, for Henry E. Laribee, adm'r, and others, appellants in case No. 195 and appellees in case No. 196.

W. E. Pardee, of Akron, for Harold R. Holm and others, appellants in case No. 195 and appellees in case No. 196.

McKeehan, Merrick, Arter & Stewart, of Cleveland, and Stilwill, Brackney & Stilwill, of Sioux City, Iowa, for appellants Mary Payne Everhard and Gordon Glayde Everhard.

Hauxhurst, Inglis, Sharp & Cull, of Cleveland, and Sam B. Sebree, of Kansas City, Mo., for appellant Frank Gordon Everhard.

Ford, Reece & Baskin, of Cleveland, for Martha W. Everhard and Wm. R. Everhard, appellants in case No. 195 and appellees in case No. 196.

DOYLE Judge.

Nathan S. Everhard died in 1919 and left a will disposing of an estate of the value of more than a million dollars. He was survived by his wife, Ella M. Everhard, until her death in 1942. His father and mother, and all of his brothers and sisters, who numbered thirteen, died prior to the date of the execution of the will (1918), as also had his wife's father and mother and all of her brothers and sisters, five in number. Children had not been born to either spouse.

By the will, the whole estate, after the payment of debts, certain specific legacies and directions for non-controversial matters, is given to trustees in trust (1) 'to collect the dividends and income therefrom and * * * to pay over all or any part of the residue of said dividends and income remaining to * * * (his) said wife, Ella M. Everhard, at such time or times as she may or shall desire or request during her natural life'; (2) at the decease of his wife, and within six months thereafter, to pay specific money legacies aggregating over $49,000; and (3) after commpensation to the said trustees, to 'proceed to divide and distribute the residue of my estate among the nephews, nieces, grandnephews and grandnieces of myself, and the nephews, nieces, grandnephews and grandnieces of my wife, Ella M. Everhard, share and share alike, grandnephews and grandnieces receiving the same share as the nephews and nieces.'

Case No. 195 is in this court de novo, following an appeal taken from the Probate Court of Medina county, and this opinion, except as noted in the last paragraph hereof, will deal only with that case. The trustees, here as they did in the lower court, seek a construction and interpretation of the instrument which prescribes their duties, and pray for a determination of those who should receive a share or shares of the residuary estate, and for other general instructions.

We encounter in the evidence 128 persons who claim as residuary legatees who survived the testator; 97 residuary legatees who survived the testator's widow; 9 nephews and nieces who predeceased the testator; adopted children of testator's nephew; and other facts which will be introduced in their proper places.

The complexity of our problem and its entangled character is well stated by one of the groups of counsel in the following exposition:

'I. Construction of will--time for determining legacies. Are the residuary legatees (a) the 97 who survived the testator's widow on May 12, 1942, or (b) the 128 who survived testator on April 2, 1919?

'II. Sec. 10581, Ohio General Code--lapse or 'other relative' statute. If the residuary legatees are the 128 living on April 2, 1919 [the time of the death of the testator], do the 21 (issue of the 9 nephews and nieces of testator who predeceased him) receive the 9 shares their parents would have received, in addition to the 21 shares given them as grandnephews and grandnieces of the testator? If so, 107 take 107 shares, 21 take 21 shares, and said 21 also take 9 additional shares, a total of 137 shares.

'III. Are the issue of grandnieces of testator's widow * * * each entitled to a share?

'IV. Are the adopted children of Gordon Glayde Everhard, a nephew of testator, each entitled to a share?

'V. Should the income of $29,264.16, and accrued bond interest of $3,340.22, at May 12, 1942, the date of the widow's death, be paid to her estate?'

It will serve no useful purpose to attempt to enlarge upon the first general principle applicable to the construction and interpretation of wills. The cases are legion which pronounce that 'The first and great rule in the exposition of wills (to which all other rules must bend), is that the intention of the testator expressed in his will shall prevail, provided it be consistent with the rules of law.' John Marshall, Chief Justice of the United States, in Smith v. Bell, 6 Pet. 68, at page 74, 8 L.Ed. 322, at page 325. And, see, 41 Ohio Jurisprudence, Wills, Section 467 et seq., and Ohio cases cited. So ruled, we proceed to analysis.

I. 'When did this estate vest?' query counsel, and 'What did the testator mean when he said, 'my trustees * * * shall proceed to divide and distribute the residue of my estate among the nephews, nieces, grandnephews and grandnieces of my wife * * *, share and share alike, grandnephews and grandnieces receiving the same share as the nephews and nieces'?'

'1. Ordinarily, a will speaks as of the death of the testator.

'2. The law favors the vesting of estates at the earliest possible moment, and a remainder after a life estate vests in the remainderman at the death of the testator, in the absence of a clearly expressed intention to postpone the vesting to some future time.' Ohio Nat. Bank of Columbus, Trustee, v. Boone, 139 Ohio St. 361, 40 N.E.2d 149, 150, 144 A.L.R. 1150.

As we examine the will, we find the wife as the chief object of solicitude. She was to receive their modest homestead, $25,000 by direct bequest, and 'all or any part' of the tremendous income from a huge estate, for the span of her life.

The next primary purpose of the trust was to distribute, equally and impartially, after the death of his wife, the vast bulk of his estate to their respective nearest relatives, and by his chosen phrases he treated them as members of but a single class. He knew that both he and his wife were the last of their respective brothers and sisters, and that they had many relatives of consanguineous and affinitive kinship, who were the direct issue of their deceased brothers and sisters. These were the people whom he had selected for his munificence.

There is no language in the instrument which indicates an intention to postpone the vesting of the bulk of testator's estate until after the death of his wife. In fact, the will directs that his bounty shall be awarded at the time of an inevitable future event (the death of his wife), and not upon the occurrence...