Fifth Third Union Trust Co. v. Wilensky

• Decision Date: 02 December 1946
• Citation: 70 N.E.2d 920,79 Ohio App. 73
• Parties: FIFTH THIRD UNION TRUST CO. v. WILENSKY et al.
• Court: Ohio Court of Appeals

70 N.E.2d 920

79 Ohio App. 73

FIFTH THIRD UNION TRUST CO. v. WILENSKY et al.

Court of Appeals of Ohio, First District, Hamilton.

December 2, 1946

Conrad Magrish and Jackson & Woodward, all of Cincinnati, for appellee Fifth-Third Unio Trust Co. and other appellees.

Leonard H. Freiberg, of Cincinnati, for appellants.

ROSS Judge.

This is an appeal on questions of law from a declaratory judgment of the Probate Court of Hamilton County, whereby it was found that the decedent of the plaintiff died intestate except to the extent such plaintiff was appointed executor of such decedent's estate. The plaintiff, after setting out the terms of the will and other pertinent instruments prayed for construction of the will and determination of heirs.

The will provides in part as follows:

'I Sol Williams, of Cincinnati, Ohio, do hereby publish this as and for my Last Will and Testament:

'First I direct that all my just debts be paid.

'Second All the rest, residue and remainder of my estate of which I may die possessed, whether real, personal or mixed, I give bequeath and devise to The Fifth Third Union Trust Company, as Trustee under a certain trust agreement entered into on the 10th day of September, 1931.'

The third item of the will nominated and appointed the plaintiff executor of the estate with full power to act.

This trust agreement was executed with all the statutory formalities required by law to complete a testamentary disposition of the estate.

The will was executed September 11, 1931; the trust agreement, September 10, 1931. The testator died September 15, 1943.

The trust agreement was delivered to the plaintiff and the trust accepted by it.

The trust agreement gives the trustee the widest powers over the estate covered by the trust, reserves a life interest in the income in the settlor, and provides for full power of direction and revocation in the settlor. The agreement provides for several specific bequests to charitable institutions, and then certain percentages of the estate to other individuals including relatives of the decedent. The agreement also contains provisions against alienation of income by beneficiaries. Provision is further made for quarterly accounts to beneficiaries and compensation is also provided for the trustee. Division of the corpus of the estate is postponed until the several beneficiaries reach various ages. The trust agreement constitutes a full testamentary disposition of the estate of the settlor and as said before conforms to all the statutory requirements for testamentary disposition of an estate, even to including the formal clause providing that it is signed by the testator in the presence of the witnesses, who, at his request, and in his presence, and in the presence of each other, signed as witnesses.

At the time this trust agreement was executed the testator-settlor deposited with plaintiff as trustee under this agreement the sum of $500. The testator and plaintiff agreed that the original amount so deposited might be increased from time to time, at the option of the settlor. No additional assets were so deposited.

One clause in the trust agreement requires quotation in full: '(d) I direct that any and all properly (including the property constituting the trust estate, in case the trust should for any reason fail) acquired by said The Fifth Third Union Trust Company under any Will executed by me shall be held, managed, controlled and disposed of by its, as Trustee, under the powers and for all the purposes set forth in this trust, unless and insofar as the terms of the Will otherwise specifically provide. The execution of this instrument by said The Fifth Third Union Company shall constitute its agreement to administer all property so received by it in trust for such purposes.'

On August 25, 1934, the testator executed the following so-called 'revocation.'

'In accordance with the right reserved to me under my Trust Agreement with The Fifth Third Union Trust Company dated September 10, 1931, I, Sol Williams, of Cincinnati, Ohio, do hereby revoke said Agreement in its entirety and acknowledge receipt from said The Fifth Third Union Trust Company of the sum of Five Hundred ($500.00) Dollars being in full settlement of all properly held by said The Fifth Third Union Trust Company under said Agreement.

Signed in duplicate at Cincinnati, Ohio, this 25th day of August, 1934.

(Signed)

Sol. Williams.

Signed in the presence of Clara Marriott Cincinnati, Ohio, August 27, 1934.

The Fifth Third Union Trust Company hereby consents to the foregoing revocation.

The Fifth Third Union Trust Company,

By A. J. Back,

Assistant Trust Officer.'

It is to be noticed that this document is not executed with testamentary formality--and, therefore, does not have the effect of a duly and legally executed codicil of a will.

It is the claim of the plaintiff (and was the conclusion of the trial court) that this last instrument not only revoked the trust and withdrew administration of the trust from plaintiff during the life of the plaintiff, but rendered the clause in the will incorporating by reference the trust agreement, completely ineffective, resulting in intestacy of the decedent except for the sole purpose of appointing an executor, and the more or less unnecessary clause providing for payment of debts.

The earnest vigor with which the executor under the...