Kirkbride v. Hickok, 32256
| Decision Date | 25 April 1951 |
| Docket Number | No. 32256,32256 |
| Citation | 98 N.E.2d 815,155 Ohio St. 293 |
| Parties | , 44 O.O. 297 KIRKBRIDE et al. v. HICKOK et al. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
1. Where a testator devises or bequeaths property in trust, the income to be paid to his children and others for a period of time and at the expiration of such period the corpus of the trust property to be divided among certain charities, the devise or bequest to the charities is invalid under Section 10504-5, General Code, if the testator dies within one year after the execution of his will, leaving issue of his body.
2. Where, under such circumstances, the children of the testator take the benefits accruing to them under the will and express a determination not to waive the provisions of Section 10504-5 General Code, they do not thereby violate an in terrorem clause providing for their disinheritance if, by procedure in court or in any way for any cause, real or imaginary, they make any effort to break, change or set aside the will or any part thereof, nor do they consent that the provision as to the charities shall be considered valid.
Walter G. Kirkbride and others, executors under the will of Arthur S. Hickok, deceased, hereinafter designated plaintiffs, instituted an action in the Probate Court of Lucas County against Daisy S. Hickok and others, hereinafter designated defendants. All persons, classes of persons and institutions named in the will of Arthur S. Hickok, deceased, were made parties defendant.
The action is for a construction of the will of Arthur S. Hickok, deceased. He died a resident of Lucas county on June 30, 1945, leaving Daisy S. Hickok, his widow, Clarence H. Hickok, his son, and Ruth Hickok Marvin, his daughter, surviving him.
Arthur S. Hickok was an exceedingly wealthy man, and on February 10, 1945, he executed his will in which he provided that substantially all his estate shall be held in trust for a period of 20 years, the income to be paid to his son, daughter and employees as directed by the will. The provisions for his wife are of no importance in the present case for the reason that she elected not to take under the will and, therefore, became entitled to one-third of the net estate of her deceased husband.
The will provides that, after the termination of the 20-year trust, all the assets remaining in the estate are to be divided into five funds, and those funds are to be distributed to some 20 charities named therein.
There is an in terrorem clause in the will to the effect that, if any person, heir, devisee, legatee or beneficiary named in the will shall by procedure in court or in any way for any cause make any effort or attempt to break, change or set aside the will or any part thereof, such person or persons will be barred from any right, title or interest to any devise, bequest or gift under the will.
The petition filed in the Probate Court seeks construction of numerous provisions of the will but the one with which we are concerned relates to the disposition of property made in item XII.
The petition recites:
'* * * the legacies, bequests and devises under item XII of said last will and testament were made by the testator, Arthur S. Hickok, for benevolent, religious, educational and charitable purposes and were made to the trustees and in trust for certain purposes for the period of twenty (20) years and thereafter for distribution for said benevolent, religious, educational and charitable purposes; that said Arthur S. Hickok executed the last will and testament on the 10th day of February, 1945, and died on the 30th day of June, 1945; that he executed his said last will and testament less than one (1) year prior to his death; that he left surviving him Clarence H. Hickok and Ruth Hickok Marvin, issue of his body; that these plaintiffs are advised that thereby the said bequests to said defendants * * * [naming the charities] contained in item XII of said will are invalid; and that the testator died intestate as to all assets of the trust created by said will, including accumulation of income therefrom, which shall be in the hands of said trustees twenty (20) years from and after the death of said testator and that the testator did not provide in his said last will and testament as to the distribution of said assets at said time; the plaintiffs are further of the opinion that the court should order at the expiration of the term of said trust, to wit: twenty years from the death of said testator, that the assets remaining in their hands shall be distributed to Clarence H. Hickok and Ruth Hickok Marvin and in the event of the prior death of any one of them, to their heirs, executors, administrators or assigns, subject to the right, title and interest therein of Daisy S. Hickok, surviving widow.'
Joint answers were filed by Daisy S. Hickok, Ruth Hickok Marvin and Clarence H. Hickok which admit most of the allegations contained in the foregoing part of the petition and admit specifically that 'Arthur S. Hickok died intestate as to certain portions of his estate.'
In addition to their admissions, the answers of the three above-mentioned defendants contain the following paragraph:
'Defendants are informed, and accordingly say, that, by reason of the provisions of Section 10504-5 of the General Code of Ohio, item XII of said will or Arthur S. Hickok, deceased, is void, and the said Arthur S. Hickok died intestate as to the property therein purported to be bequeathed and devised; but if the court shall determine that the provisions of said item XII are voidable and that affirmative action on the part of the defendants, Ruth Hickok Marvin and Clarence H. Hickok, is necessary in order to make invalid the provisions of said item XII, defendants further say that such affirmative action may be had and taken by the defendants, Ruth Hickok Marvin and Clarence H. Hickok, and the same shall, and will not, constitute an effort or attempt to break, change or set aside the will of Arthur S. Hickok, deceased or any part thereof, within the meaning and intent of item XIII of said will; or, in the alternative, if the same shall be determined to constitute an effort or attempt to break, change or set aside the will of Arthur S. Hickok, deceased, or any part thereof, within the meaning and intent of item XIII of said will, defendants further say that the provisions of said item XIII in their purported application to any affirmative action pursuant to the provisions of Section 10504-5 of the General Code of Ohio are void because contrary to public policy; and in the event the court shall so determine, but not otherwise, defendants Ruth Hickok Marvin and Clarence H. Hickok further say that they do hereby elect to have declared invalid the provisions of item XII of the will of Arthur S. Hickok, deceased.'
The charities filed a joint answer in which they say that, if Section 10504-5, General Code, applies in any way to the devises and bequests under item XII, which the charities specifically deny, the Hickok children and each of them have waived any right to invoke the provisions of such section or otherwise to invalidate the devises and bequests and have elected not to assert any such right.
In their answer the charities say further that the Hickok children are legatees and beneficiaries under the will, subject to item XIII (the in terrorem clause), and that, if the Hickok children assert any right under Section 10504-5 or otherwise attempt to invalidate, break or set aside the devises and bequests to the charities, the Hickok children will destroy, defeat and bar all their claims to any participation in the estate of their father.
Answers were filed by the remaining defendants.
The cause was submitted to the Probate Court, which held, inter alia:
'1. The five funds to be provided by the trustees and the provision for the distribution of said funds as set up under item XII of said will are invalid and of no effect by reason of Section 10504-5, General Code.
* * *
* * *
An appeal on questions of law and fact was prosecuted by the charities to the Court of Appeals which entered the same judgment as that entered by the Probate Court.
The cause is before this court upon the allowance of a motion to certify the record.
Kirkbride, Cole, Frease & Mittendorf and Rolland W. Dings, all of Toledo, for pl...
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...the devise to the charities is invalid under Ohio Revised Code, § 2107.06 (formerly General Code, § 10504-5). Kirkbride v. Hickok, 1951, 155 Ohio St. 293, 98 N.E.2d 815. On the other hand, the Texas courts have held that the devise to the charities is valid under the law of Texas. Toledo So......
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