Fifth Third Bank v. Crosley
| Decision Date | 21 June 1996 |
| Docket Number | No. C-95383,C-95383 |
| Parties | FIFTH THIRD BANK, Trustee, et al. v. CROSLEY et al. * |
| Court | Ohio Court of Common Pleas |
Stephen L. Black, Cincinnati, for defendants Shannon C. Welch, Brooke C. Schwartzkopf, Brandon Moore, Brock Moore and Kaycee Schwartzkopf.
Jack F. Fuchs, Cincinnati, for Lewis L. Crosley.
Jennifer B. Olano, Cincinnati, for defendants Gwendolyn Kess Johnson, Charlotte Johnson, Crosley Johnson, Johanna Johnson and Zachary Johnson.
Jon Hoffheimer, Cincinnati, Trustee for Unborn Natural Lineal Descendants of Powel Crosley, Jr.
Robert H. Dolle, Cincinnati, Trustee for Person or Persons Not Born Who Might be Adopted by Lineal Descendants of Powel Crosley, Jr.
This matter came before Judge Wayne F. Wilke on May 29, 1996, regarding motions and cross-motions for summary judgment. Present before the court were Stephen L. Black, representing defendants Shannon C. Welch, Brooke C. Schwartzkopf, Brandon Moore, Brock Moore and Kaycee Schwartzkopf (the "Welch Defendants"); Jack F. Fuchs, representing Lewis L. Crosley; Jennifer B. Olano, who represents defendants Gwendolyn Kess Johnson, Charlotte Johnson, Crosley Johnson, Johanna Johnson and Zachary Johnson (the "Johnson Defendants"); Jon Hoffheimer, the Trustee for Unborn Natural Lineal Descendants of Powel Crosley, Jr.; and Robert H. Dolle, the Trustee for Person or Persons Not Born Who Might be Adopted by Lineal Descendants of Powel Crosley, Jr.
Based upon oral arguments and the parties' briefs, the court granted Lewis L. Crosley's motion for summary judgment and declared his rights under the trusts in question by entry dated May 29, 1996. Additionally, the Welch Defendants were given leave to file a supplemental memorandum regarding their motion for summary judgment. That supplemental memorandum was filed on May 30, 1996.
The facts of this case are not controverted and only the application of the law is questioned. Three separate instruments executed by two individuals, Powel Crosley, Jr. and his son, Powel Crosley III, are at issue. Exhibit F of the parties' stipulations, filed on May 1, 1996, helps clarify the parties' familial relationships. The facts of this dispute may be summarized below:
The Fifth Third Bank serves as trustee under the Last Will and Testament of Powel Crosley III ("the Trust"), under an Amended Trust Agreement dated October 19, 1959 with Powel Crosley, Jr. ("the 1959 Amendment"), and under an Indenture of Trust # 1 dated December 16, 1941 with Powel Crosley, Jr. ("the 1941 Indenture"). The Fifth Third Bank brought a motion for declaratory judgment asking the court to determine whether adopted persons are "issue" of Powel Crosley III within the meaning of Item III of the Will, within the meaning of Item III of the 1959 Amendment, and within the meaning of the 1941 Indenture. Motions for summary judgment were brought by the Trustee for Unknown Persons who Might Be Adopted by a Lineal Descendant of Powel Crosley, Jr., by the "Welch Defendants," and by defendant Lewis L. Crosley. 1
Powel Crosley III executed his Last Will and Testament on or about October 28, 1946. On June 14, 1948, Powel Crosley III died while domiciled in Dade County, Florida. His will was admitted to probate in Florida. Item III of that will creates a trust which, inter alia, directs the trustee to pay income to "each of my issue per stirpes his or her proportionate share of the income * * *." Powel Crosley III named his father, Powel Crosley, Jr., as trustee, and The Fifth Third Union Trust Company as successor trustee. The Eleventh Judicial Circuit of Florida declared The Fifth Third Union Trust Company successor trustee in April 1962. The trust will terminate twenty-one years after the death of the youngest issue of Powel Crosley III living on June 14, 1948.
Powel Crosley III was survived by three children, to wit: Powel Crosley IV, Houston Crosley and Thomas Edward Crosley ("Ted"). Ted Crosley was the youngest issue of Powel Crosley III surviving Powel Crosley III at the time of his death. Powel Crosley IV died without issue. Houston Crosley is still living
and has issue. Ted Crosley died on March 26, 1995, survived by five natural born children and two adopted children. Ted [669 N.E.2d 907] Crosley's death in 1995 means that the trust will terminate in 2016. The Fifth Third Bank is uncertain whether Ted Crosley's two adopted children and their descendants are "issue" within the meaning of Powel Crosley III's Will.
On December 16, 1941, Powel Crosley, Jr., executed Indenture of Trust # 1 with The Fifth Third Union Trust Company as trustee. This instrument created an irrevocable trust for the benefit of several of Powel Crosley, Jr.'s family. This trust provides that one-half of the income is distributable to the issue of Powel III, per stirpes, and one-half of Powel III's interest is distributable to the issue of Ted Crosley, per stirpes. Item VII of this document states that "[t]he word 'issue' as used herein shall mean only lawful issue and shall include children, grandchildren and more remote descendants." The Fifth Third Bank is uncertain whether the two individuals adopted by Ted Crosley and, consequently, their descendants, are issue for purposes of the 1941 Indenture.
On October 19, 1959, Powel Crosley, Jr. executed an Amended Trust Agreement with The Fifth Third Union Trust Company as trustee. This instrument amended and restated a revocable trust which became irrevocable upon Powel Crosley, Jr.'s death on March 24, 1961. The trust was divided into two shares, one share for the benefit of Page Crosley Kess, the settlor's daughter, and one share for the benefit of the settlor's grandchildren and issue of any deceased grandchildren. Upon Page Kess's death, the entire trust was divided into separate trust shares for the grandchildren and collective issue of each deceased grandchild of Powel, Jr. Upon the death of Ted Crosley, the income from his share became distributable to his issue, per stirpes.
Paragraph 5, Article VI of the 1959 Trust states:
The Fifth Third Bank is uncertain whether any adoptees are issue within the meaning of the 1959 Amended Trust Agreement.
Summary judgment under Civ.R. 56(C) is proper if "(1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing the evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the nonmoving party." State ex rel. Howard v. Ferreri (1994), 70 Ohio St.3d 587, 589, 639 N.E.2d 1189, 1192. There are no facts to be litigated in this case, so summary judgment is proper.
Three basic principles guide this court in construing instruments such as those before this court. First, it is axiomatic that a probate court should ascertain and give effect to the intent of the testator, grantor, or settlor when legally possible. Townsend's Executors v. Townsend (1874), 25 Ohio St. 477; Tootle v. Tootle (1986), 22 Ohio St.3d 244, 22 OBR 420, 490 N.E.2d 878. Next, a court is provided indicators of the grantor's intentions by the express language of the instrument. Casey v. Gallagher (1967), 11 Ohio St.2d 42, 40 O.O.2d 55, 227 N.E.2d 801. Finally, the words used in the instrument are presumed to be used in their ordinary sense. Albright v. Albright (1927), 116 Ohio St. 668, 157 N.E. 760.
The threshold consideration to be decided in this matter concerns the choice of law for interpreting the instruments before the court. The Supreme Court of Ohio and the First District Court of Appeals have followed the principle that where testamentary intent need be ascertained, the law of the state where the testator was domiciled and where his will is probated is to be applied. See, e.g., Lozier v. Lozier (1919), 99 Ohio St. 254, 124 N.E. 167; Toledo Trust Co. v. Santa Barbara Found. (1987), 32 Ohio St.3d 141, 512 N.E.2d 664; Heater v. Mittendorf (1943), 72 Ohio App. 4, 26 O.O. 508, 50 N.E.2d 559. Because Powel Crosley III was domiciled in Florida at the time of his death and because his will was admitted to probate in the Circuit Court of the Eleventh Judicial Circuit of Florida, Florida law should be utilized with respect to interpreting the provisions of Powel Crosley III's will.
On the other hand, Ohio law should be applied to the 1941 Indenture and 1959 Amended Trust Agreement. It is hornbook law that a trust agreement made in Ohio is governed by Ohio law and that the validity of an inter vivos trust is determined by the law of its situs. Darrow v. Fifth Third Union Trust (C.P.1954), 78 Ohio Law Abs. 303, 1 O.O.2d 104, 139 N.E.2d 112. Both the Indenture and the Amended Trust Agreement were executed in Ohio and the situs of each trust is Ohio. Additionally, with respect to the Amended Trust Agreement, Paragraph 8, Item VI of that instrument expressly provides that Ohio law shall apply.
Turning to the issue of whether the adoptive children of Ted Crosley ar...
To continue reading
Request your trial
-
Doe v. Doe
...that a class gift in a trust to "heirs at law by blood related to the grantor" excluded adopted persons); Fifth Third Bank v. Crosley, 79 Ohio Misc.2d 10, 669 N.E.2d 904, 909 (1996) (holding that a trust provision limiting a class gift to the "lawful issue of the blood of the Trustor" exclu......
-
Paloutzian v. Taggart
...statute to apply retrospectively to any instrument which does not expressly exclude an adopted person. See Fifth Third Bank v. Crosley, 79 Ohio Misc. 2d 10, 669 N.E.2d 904, 909 (1996). 9. Walz illustrates an instance of the type of evidence needed to rebut the presumption. In Walz, the bene......
-
First Merit, N.A. v. Kelly, 2008 Ohio 303 (Ohio App. 1/30/2008)
...states that the effects of an adoption are to apply retrospectively[.]" (Internal citations omitted.) Fifth Third Bank et al. v. Crosley, et al (1996), 79 Ohio Misc.2d 10, 18. See also, Fifth Third Bank v. Harris, 127 Ohio Misc.2d 1, 2003-Ohio-7361, at ¶18, citing Mills, 45 Ohio St.3d at 15......