Lewis v. Thompson

• Citation: 52 N.E.2d 331,142 Ohio St. 338
• Decision Date: 15 December 1943
• Docket Number: 29544.
• Parties: LEWIS v. THOMPSON et al.
• Court: United States State Supreme Court of Ohio

52 N.E.2d 331

142 Ohio St. 338

LEWIS v. THOMPSON et al.

No. 29544.

Supreme Court of Ohio

December 15, 1943

Syllabus by the Court.

1. If a testator, subsequent to the execution of his will, altered his estate or interest in property specifically devised either by a conveyance of a portion of his title to the devised property or by a conveyance of his entire title and interest in a portion of such property, the actual estate or interest of the testator which would otherwise pass under the law of descent and distribution passes to the devisee unless in the instrument by which such alteration was made, the intention is declared that it shall operate as a revocation of such devise.

2. But where a testator, subsequent to making his will, executed a conveyance whereby his entire estate and interest in property specifically devised was wholly divested, such conveyance constitutes a complete revocation of the devise, although the property sold was not fully paid for and a mortgage had been executed to secure the balance of the purchase price.

Appeal from Court of Appeals, Trumbull County.

This action originated in the Court of Common Pleas of Trumbull county, Ohio, where the plaintiff, as ancillary administrator of the estate of Frances Foulk, sought the construction of items 2 and 6 of the will of Frances Foulk, which are as follows:

'2. I give, devise and bequeath in fee simple in equal shares, share and share alike the one-half undivided interest which I now own in that certain real property situated in the city of Newton Falls, Trumbull county, state of Ohio, to the following persons: John Johnson, a brother, of Akron, Summit county, Ohio; Richard Foulk of Monroe, Monroe county, Michigan; and, Margaret Baker of Warren, Trumbull county, Ohio.

'If any one or more of the hereinabove named parties should predecease me, then I desire that their share shall be divided equally between the remaining heirs.'

'6. All the rest and residue of my property, whether the same be real, personal or mixed, I hereby give, devise and bequeath to Mayrell May Thompson in fee simple.'

The will was executed on April 30, 1940, and the testatrix died on June 26, 1941.

On July 12, 1940, the testatrix, being the owner of an undivided half, joined Catherine Kloss, the owner of the other undivided half, in a warranty deed and thereby conveyed the real estate described in item 2 of her will to Frank R. Kloss and George L. Kloss, the entire consideration therefor being $12,000. The purchasers, to secure the unpaid balance thereof, executed and delivered their promissory note for $8,000 with interest at the rate of 5% and payable in monthly installments, and to secure such note, executed a mortgage on the same property to the testatrix and Catherine Kloss.

At the time of the death of the testatrix, the balance due her upon her half interest in such mortgage note was $3,534.52, and she had on deposit in a Newton Falls bank the sum of $459.88. The defendants John Johnson, Richard Foulk and Margaret Baker, named as devisees in item 2 of the will, seek a finding of the court that they are entitled to such note and mortgage, together with the moneys on deposit representing payments made thereon and a judgment in accordance with such finding.

Upon submission to the Court of Appeals on questions of law fact, that court found 'that the sale of the real estate mentioned in item II of the will subsequent to the execution of said will revoked item II, and that the proceeds of said sale including the note and mortgage passed under item VI of said will as personal property.'

The case is in this court following the allowance of a motion for certification.

Robert Cochran and Guarnieri & Secrest, all of Warren, for appellants.

Burgess & Lewis, of Warren, for appellee.

MATTHIAS Judge.

The single question of law presented by the record is whether a sale of real estate and an unconditional conveyance thereof revokes a specific devise of that same property contained in a will theretofore executed, where a note given by the purchaser for the unpaid balance of the purchase price is secured by a mortgage executed to the testatrix as security for such note.

It is contended by counsel for the devisees that in such situation there is only a change from absolute ownership of the property to a mortgage interest therein by way of security, which does not constitute an ademption or revocation of the devise. This contention is based upon the theory, as urged by counsel, that 'the unpaid purchase money mortgage was merely an altered form of the interest and estate of the testatrix in the property.'

Many cases have been cited which, in our view of the question before us, have no application. The decision of the issues presented in this case is primarily dependent upon and determined by the provisions of Sections 10504-51 and 10504-52, General Code. They read as follows:

Section 10504-51. 'A conveyance, settlement, deed, or other act of the testator, by which his estate or interest in property previously devised or bequeathed by him, is altered, but not wholly divested, shall not be deemed a revocation of the devise or bequest of such property, but such devise or bequest shall pass to the devisee or legatee, the actual estate or interest of the testator, which would otherwise descend to his heirs, or pass to his next of kin; unless, in the instrument by which such alteration is made, the intention is declared, that it shall operate as a revocation of such previous devise or bequest.'

Section 10504-52. 'But if the provisions of the instrument by which such alteration is made, are wholly inconsistent with the terms and nature of the previous devise or bequest, such instrument will operate as a revocation thereof, unless the provisions depend on a condition or contingency, and such condition be not performed, or contingency does not happen.'

These sections should, of course, be read and construed together. They originally were enacted together and have so continued in substantially the same language. They were before this court for consideration in the case of Brush v. Brush, 11 Ohio 287. With reference to these provisions, the court in the opinion, following a recitation of the statutory provisions, stated as follows:

'Thus, when there is a will devising the whole estate, and a subsequent conveyance or deed which does not divest the whole estate, it does not revoke the will, but the devise operates pro tanto upon that portion not divested.

'The rule is this: If the will conveys the whole estate, and the subsequent disposition, by deed or otherwise, does not transfer the whole estate, but leaves a portion which would descend as at law, the devise attaches to such descendible portion, and carries it to the devisee.'

It seems entirely clear from the plain language of the statute that a conveyance which wholly divests the testator's title to property is to be deemed a revocation of the devise or bequest of such property, but if the estate or interest of the testator is merely altered, either by a conveyance of a portion of his title to the property previously devised or by a conveyance of his entire title to a portion of that property, the remaining portion of the estate or interest of the testator devised which would otherwise pass under the law of descent and distribution 'shall pass to the devisee or legatee' under the terms of the will.

Where however, the disposition of the property subsequent to the execution of the will is unconditional and complete and therefore 'wholly inconsistent with the terms and nature of...