Kovar v. Kortan

• Decision Date: 02 April 1965
• Docket Number: No. 663398,663398
• Citation: 32 O.O.2d 302,209 N.E.2d 762,3 Ohio Misc. 63
• Parties: , 32 O.O.2d 302 KOVAR, Exrx., v. KORTAN et al.
• Court: Ohio Court of Common Pleas

Page 63

3 Ohio Misc. 63

209 N.E.2d 762, 32 O.O.2d 302

KOVAR, Exrx., v. KORTAN et al.

No. 663398.

Probate Court of Cuyahoga County, Ohio.

April 2, 1965.

Howard E. Egert, Cleveland, for plaintiff.

William B. Saxbe, Atty. Gen., and Neva H. Wertz, Columbus, for the state.

Bronis J. Klementowicz, Director of Law, and Charles A. Chandler, Cleveland, for city of Cleveland.

John T. Corrigan, Pros. Atty., and Doris Brucker, Cleveland, for Cuyahoga County.

Eileen Flynn, Cleveland, for the unknown heirs and next of kin.

ANDREWS, Chief Referee.

Plaintiff is the executrix of the last will and testament of Joseph Novak. She has filed a petition to construe his will and the first codicil thereto.

The petition seeks the direction of the court with reference to the proper distribution of certain portions of the estate.

By item 2 of his will, testator directs that all his real estate be sold by his 'executor' without order of court, 'in order to pay all the following bequests in cash.'

Item 6 directs that all the rest and residue of testator's estate be distributed 'to the following organizations and people; in equal shares.'

Three organizations are listed as a, b, and c. These will be referred to in more detail later. The 'people' are listed as follows:

'd. Ed Kortan and wife

'e. Claire Kortan

'f. Ruth Kortan

'g. William Kortan and wife'

Item 1 of the first codicil reads:

'I hereby revoke paragraphs d., e., f., and g. of item 6 of said will and substitute for those four provisions the following.

'I bequeath the sum of $2,000 to my nephew Ed Kortan, and his three children Claire, Ruth and William, each to share and share alike in this sum.'

Claire, whose actual name was Clarise, and who married Arnold Long, predeceased the testator, leaving two minor children.

Although in his will the testator referred to Ed Kortan as his nephew, the evidence shows that Ed Kortan was not in fact his nephew, nor otherwise related to him by blood. Neither were Ed Kortan's children. The relationship of all these beneficiaries was to the testator's deceased wife.

The antilapse statute, Section 2107.52, Revised Code, states:

'When a devise of real or personal estate is made to a relative of a testator and such relative was dead at the time the will was made, or dies thereafter, leaving issue surviving the testator, such issue shall take the estate devised as the devisee would have done if he had survived the testator.'

To come within the statute, the 'devise' must have been made to a 'relative.' As used in the statute, the word 'relative' is limited to persons related to the testator by consanguinity, and does not include those 'related' by affinity. Schaefer v. Bernhardt (1907), 76 Ohio St. 443, 81 N.E. 640; Everhard v. Brown (1945), 75 Ohio App. 451, 62 N.E.2d 901; Hewes v. Mead (1947), 81 Ohio App. 489, 80 N.E.2d 212; Schuck v. Schuck (Prob.Ct.1958), 156 N.E.2d 351.

It is true that before the adoption of the Revised Code, the section in question used the term 'child or other relative' (Section 10504-73, General Code; Section 5971, Revised Statutes), and that the decision of the Supreme Court in the Schaefer case, supra, stressed that point, as shown by the following excerpt from the first paragraph of the syllabus:

'* * * the phrase 'other relative' should, in accordance with the maxim noscitur a sociis, be restricted to relationships of the character indicated by the associated word 'child,' and regarded as including those which are consanguineous, but excluding those which are affinitive merely.'

At first blush it might appear that the Schaefer case does not apply to the present statute, Section 2107.52, Revised Code, which uses the term 'relative,' instead of 'child or other relative.' However, as pointed out in Schuck v. Schuck, supra, the change in wording between the General Code Section and the Revised Code Section was not intended to change the law. The Revised Code is merely a restatement of the previous law. See Section 1.24, Revised Code. Accordingly, the Schaefer case is as much the law under the present statute as it was under the former statutes.

The general rule is that the word 'relative' in an antilapse statute is limited to persons related to the testator by consanguinity, and apparently it makes no difference whether the statute uses the term 'child or other relative' or merely 'relative.' See 115 A.L.R. 444; 63 A.L.R.2d 1195; 6 Bowe-Parker, Page on Wills (1962), Section 50.13; Atkinson, Wills (2d Ed. 1953), 779-780, Section 140.

I hold that the phrase, 'relative of a testator,' contained in Section 2107.52, Revised Code, does not include those 'related' by affinity. Consequently, Clarise Long was not a 'relative' of the testator, and her surviving children are not entitled to her share of the $2,000 bequest.

Inasmuch as the antilapse statute, cited above, does not govern, we must look to the common law to determine who is entitled to Clarise Long's share of the $2,000 bequest, which share amounts to $500.

As already noted, the gift is of an aggregate sum, to be divided equally between four named legatees, three of whom compose a 'class,' namely, the children of Ed Kortan. If this constituted a class gift, those members of the class who survived the testator would share the whole $2,000.00 equally, and Clarise Long's share would not lapse. 56 Ohio Jurisprudence 2d, Section 857; Jewett v. Jewett, 21 Ohio Cir.Ct. 278, 12 Ohio C.D. 131 (1900), affd. 67 Ohio St. 541, 67 N.E. 1098; Mather v. Copeland (Com.Pl.1898), 5 Ohio N.P. 151, 7 Ohio Dec. 257; Bensing, The Ohio AntiLapse Statute, 28 Univ. of Cincinnati L.Rev. (1959), 1, at p. 3; 4 Bowe-Parker, Page on Wills (1961), Section 35.15, p. 540.

However, the $2,000 bequest is not a class gift, but rather a gift to individuals. In the first place, only three of the four beneficiaries are in the same class. But even overlooking that point and treating the bequest as though all four of the named individuals were of the same class, the bequest is still to individuals and not to a class.

The case of Jewett v. Jewett, supra, is in point. The bequest in that case was 'to my brothers,' naming each of them, 'share and share alike.' At page 282 of 21 Ohio Cir.Ct. the court said:

'It seems obvious to us that is a gift to them as individuals, and not as a class. It is true that they were a class--but the gift to them is in words to them as individuals, and the rule of law is, that when the gift is made to persons designated by name, that is individually; it is a gift to them as individuals, and not as a class, even though the persons designated may constitute a class * * *'

The Jewett case was followed in Bishop v. Jones (App.1929), 7 Ohio Law Abs. 484. See, also, Starling's Executor v. Price (1864), 16 Ohio St. 29.

The Ohio decisions are in line with the general rule. Of course, a will may contain other language manifesting an intention to create a class gift even though individuals are named. However, this is unusual, and no such language appears in Mr. Novak's will. In the absence thereof, the designation of the beneficiaries by name is regarded as showing an intention to make individual gifts rather than a class gift. And when the group of beneficiaries are named and the number of them given, as occurred in Mr. Novak's will ('and his three children Claire, Ruth and William') the intent to make gifts to individuals rather than a gift to a class, is even more apparent. See 75 A.L.R. 773; 105 A.L.R. 1394; 4 Bowe-Parker, Page on Wills (1961), Section 35.4.

The bequest of $2,000 being to four individuals and not to a class, the death of Clarise Long resulted in the lapsing of her share, namely, $500. Jewett v. Jewett, supra; Bishop v. Jones, supra; In re King (1910), 200 N.Y. 189, 93 N.E. 484, 34 L.R.A., N.S., 945; Bensing, The Ohio AntiLapse Statute, 28 Univ. of Cincinnati L. Rev. 1 (1959); 56 Ohio Jurisprudence 2d, Wills, Section 851; 4 Bowe-Parker, Page on Wills (1961), Section 35.15.

If there is a general residuary clause, which there is in Mr. Novak's will ('All the rest and residue of my estate'), lapsed legacies become a part of the residuum, in the absence of language showing a contrary intention. 56 Ohio Jurisprudence 2d, Wills, Section 868; 10 A.L.R. 1522; 4 Bowe-Parker, Page on Wills (1961), Section 33.50; 6 Bowe-Parker, Page on Wills, Section 50.16, p. 94 (1962); Bensing, The Ohio AntiLapse Statute, 28 Univ. of Cincinnati L. Rev. 1, at pp. 2-3 (1959). I will not burden this opinion by listing the many Ohio cases. Most, if not all, of them are cited in 56 Ohio Jurisprudence 2d, Wills, Section 868, and at pages 2 and 3 of the Bensing article cited supra. Also, see my report and opinion in Kellogg v. Campbell, Ohio Prob., 209 N.E.2d 645 March 3, 1965.

Although the $2,000 bequest made in the codicil appears as a substitution for part of the will's residuary clause, it is obviously not in itself a part of the residuary clause. Rather it is a general (pecuniary) legacy of a definite amount. Such a 'nonresiduary' bequest will be treated as a separate entity even though it chances to be located in the same clause which disposes of the residuum. See 4 Bowe-Parker, Page on Wills (1961), Section 33.49, p. 376.

For the reasons given, I hold that the $500 bequest to 'Claire' (Clarise Long) lapsed, and that it becomes part of the residuum of the estate.

The other questions presented are similar to one another and relate to the identity of the residuary legatees. The three named legatees are:

'a. Old Peoples Home of West 18th Place, Chicago, Ill.

'b. Mother Mary Mission of Phenix City, Alabama

'c. Marbetena Fathers of Depere, Wisconsin'

From the evidence it appears that each of these legatees is erroneously described. I will consider each situation separately.

By way of an approach to the general problem, the following observations by Professor Bowe and Parker are helpful.

Misnomers appear quite frequently in devises to a corporation; usually to...