Heebsch v. Lonsway

• Decision Date: 05 June 1947
• Citation: 81 Ohio App. 361,79 N.E.2d 663
• Parties: HEEBSCH v. LONSWAY et al.
• Court: Ohio Court of Appeals

79 N.E.2d 663

81 Ohio App. 361

HEEBSCH v. LONSWAY et al.

Court of Appeals of Ohio, Third District, Seneca.

June 5, 1947

Syllabus by the Court.

1. An item of a will empowering the executor to pay a named party a certain sum of money for each week, beginning at a stated date, that such party had kept house for the testator during his lifetime, is not an acknowledgment of a debt but rather a bequest in the nature of a gift.

2. The phrase 'If such devisee,' appearing at the beginning of the second sentence of Section 10504-73, General Code, relative to succession on the death of a devisee refers back to the phrase 'child or other relative' appearing in the first sentence of the section.

3. When a legatee who is not a relative of the testator predeceases him, the bequest lapses upon the death of the testator, and, if the will contains a residuary clause becomes a part of the residuary estate.

4. Where a testator makes a bequest to a nonrelative in one item of his will and in another item makes disposition of his residuary estate to five named persons, in equal portions, four of whom are related to him and the fifth, the nonrelative named in the former item, predeceases the testator, the one-fifth of the residuary estate given to such fifth beneficiary lapses upon his death prior to that of the testator and descends by operation of law to the next of kin of the testator.

Spitler & Flynn, of Tiffin, and Francis M. Marley, of Fostoria, for appellants.

Carpenter & Carpenter, of Tiffin, for appellee.

MIDDLETON Judge.

This is an appeal on questions of law, from a judgment of the Common Pleas Court of Seneca county, in which appeal it is sought to reverse the judgment of that court construing a will.

The case was submitted below, on the following agreed statement of facts:

'It is admitted by the parties hereto that the facts in this case are as follows: 'That one Robert B. McClellan, a resident of the city of Tiffin, Ohio, died on the 30th day of May, 1945, leaving a will, which was duly admitted to probate by the Probate Court of Seneca county, Ohio, on the 15th day of June, 1945, and that on said date, letters testamentary were duly issued by the Probate Court to the plaintiff who is now the duly qualified and acting executor of said estate. That a copy of said will, which is attached to the petition in this action, marked 'exhibit A,' is a true and correct copy of the last will and testament of Robert B. McClellan, deceased.

'That the defendants, Florence Lonsway, Mabel (Lonsway) Yonker, Ethel (Lonsway) Cunningham and Edith Hollingshead, are the only living legatees and devisees named in said will. That the legatee and devisee, Marrie Grabach, named in item second and third of said will, died on January 23, 1945, being a nonrelative of the deceased testator. That the defendants named in this action. Florence Lonsway, Mabel (Lonsway) Yonker, Ethel (Lonsway) Cunningham, and Edith Hollingshead, are related to Robert B. McClellan, deceased, being cousins of said deceased.

'That the defendant Mary E. Ritchie, is a sister of the deceased. That the defendants, Faye Lovell, Myrtle Krutsinger, Pearl Krutsinger, Blanche Niswander, Clarence Chandler and Ray Chandler, are all of the nephews and nieces of the deceased; and they and Mary E. Ritchie, his sister, are all of the next of kin of Robert B. McClellan, deceased. That the defendants, Faye Lovell, Myrtle Krutsinger, Pearl Krutsinger, Blanche Niswander, Clarence Chandler and Ray Chandler, are all of the children of their deceased mother, who was a sister of the said Robert B. McClellan, deceased.

'That the appraised value of the real and personal property of the deceased's estate amounted to the sum of $21,822.73, and that all of the creditors have been fully paid and satisfied.'

The will of Robert B. McClellan, omitting the formal parts, is as follows:

'First. I direct that all my just debts and funeral expenses be paid out of my estate as soon as practicable after the time of my decease.

'Second. It is my will and I hereby authorize and empower my executor hereinafter named to pay to my housekeeper, Marrie Grabach, the sum of two ($2) dollars per week beginning January 29, 1934, for each and every week she has kept house for me during my lifetime.

'Third. All the property, real and personal, of every kind and description, wheresoever situate, which I may own or have the right to dispose of at the time of my decease, I give, devise and bequeath to the following persons, to wit: One-fifth to Florence Lonsway of Fostoria, Ohio; one-fifth to Mabel (Lonsway) Yonker, of Fostoria, Ohio; one-fifth to Ethel (Lonsway) Cunningham of Fostoria, Ohio; one-fifth to Edith Hollingshead of Fostoria, Ohio; and one-fifth to Marrie Grabach, who is my present housekeeper.

'Fourth. I give my executor hereinafter named, the power to sell any and all of my real estate that I may die possessed of without the intervention of any court, at either private or public sale as he may deem for the best interest of my estate, and I hereby authorize and empower him to make good and sufficient deed or deeds therefor.

'Fifth. I hereby request that my executor hereinafter named by given two years time in which to sell my farm containing about one hundred and sixty-two (162) acres of land located in Seneca township, Seneca county, and state of Ohio. And I further request that my executor hereinafter named rent the said farm to Henry Ward, the present tenant, for a period of two years upon the same terms and conditions the said farm is now rented. However, should the said Henry Ward, decide not to lease the said farm after my decease, I repose confidence in my executor hereinafter named, that he will lease the said farm to the best of his ability.'

The court is asked to construe items two and three of the will.

The court below, in construing those items, held that item three constituted a residuary clause for the residue of the estate of the testator, to Florence Lonsway, Mabel (Lonsway) Yonker, Ethel (Lonsway) Cunningham, Edith Hollingshead and Marrie E. Grabach, and that Marrie E. Grabach died before the testator and, being a nonrelative of the testator, her interest in the residuary estate lapsed, and the surviving legatees and devisees, Florence Lonsway, Mabel (Lonsway) Yonker, Ethel (Lonsway) Cunningham and Edith Hollingshead took the lapsed portion of the residuary estate in equal portions.

The court found further that item two of the will did not constitute a bequest, but was a statement of a debt due from the testator to Marrie E. Grabach and the personal representatives of Marrie E. Grabach, who is now deceased, are entitled to be paid the amount of the debt.

The only error assigned and argued in the brief of the defendants, appellants herein, is that the judgment of the court below is not sustained by sufficient evidence and is contrary to law.

It is agreed that Marrie E. Grabach was not a child or other relative of the testator, and that she died before the testator.

It is also agreed that the bequests to Marrie E. Grabach, in item two and item three lapsed upon her death, prior to the death of the testator.

It is the contention of plaintiff, appellee herein, that item two is an acknowledgment of...