Oliver v. Bank One, Dayton, N.A.

• Decision Date: 29 May 1991
• Docket Number: No. 90-530,90-530
• Citation: 573 N.E.2d 55,60 Ohio St.3d 32
• Parties: OLIVER, Appellee, v. BANK ONE, DAYTON, N.A.; Hopper, Executor, Appellee; Reimuller et al., Appellants.
• Court: Ohio Supreme Court

Page 32

60 Ohio St.3d 32

573 N.E.2d 55

OLIVER, Appellee, v. BANK ONE, DAYTON, N.A.; Hopper, Executor, Appellee Reimuller et al., Appellants.

No. 90-530.

Supreme Court of Ohio.

Submitted Feb. 6, 1991.

Decided May 29, 1991.

Syllabus by the Court

1. The court may consider extrinsic evidence to determine the testator's intention only when the language used in the will creates doubt as to the meaning of the will. (Sandy v. Mouhot [1982], 1 Ohio St.3d 143, 145, 1 OBR 178, 180, 438 N.E.2d 117, 118, followed.)

2. In Ohio, the anti-lapse statute, R.C. 2107.52, applies only to "relatives" who are related by consanguinity, excluding those related by affinity. (Schaefer v. Bernhardt [1907], 76 Ohio St. 443, 81 N.E. 640, paragraph one of the syllabus, followed.)

Edna Irene Shiverdecker died on November 30, 1987. Her husband, James F. Shiverdecker, preceded her in death on March 27, 1974. On December 18, 1987, the last will and testament of Edna Shiverdecker was admitted to probate in the Probate Division of the Court of Common Pleas of Montgomery County. The will contained the following provision which is pertinent to this appeal:

"ITEM III. Provided, however, if my beloved husband, JAMES F. SHIVERDECKER, predeceases me in death, or dies within thirty (30) days after the date of my death, then, in the event of the death of my beloved husband as provided in this Item, I direct that all the rest * * * of my estate * * * be converted into cash money by my Successor Executor and be divided into one hundred (100) equal parts or shares and I, then, give and bequeath to my relatives hereinafter named, said equal parts or shares in proportions hereinafter set after each name, viz:

"(1) To my nephew, WILLIAM H. REIMULLER, * * * twenty-six (26) such equal parts or shares, to be his absolute property.

"(2) To my husband's sister, (Mrs.) MAE REED, * * * twenty-three (23) such equal parts or shares, to be her absolute property.

"(3) To my husband's sister, OSIE S. BAIR, * * * twelve (12) such equal parts or shares, to be her absolute property.

"(4) To my husband's sister, RUTH WOLFGANG, * * * twelve (12) such equal parts or shares, to be her absolute property.

"(5) To my husband's brother, WALTER M. SHIVERDECKER, * * * four (4) such equal parts or shares, to be his absolute property.

"(6) To the Winters National Bank and Trust Company of Dayton, Ohio, twenty-three (23) such equal parts or shares, to Hold in Trust * * *.

"(a) To distribute the net income from the trust property to my husband's sister, MARY PLESSINGER * * * in monthly installments or oftener, from and after my death. * * *

"(b) If upon my husband's sister's decease before said fund is exhausted, or if she predeceases me in death, the said fund or remainder of said trust fund shall be paid over and distributed to her daughters hereinafter named in the proportions set after each name, viz:

"To WANDA BAIR, * * * two-thirds ( 2/3) of said trust fund, absolutely; and

"To DONNA MARIE WILLIAMS, * * * the remaining one-third ( 1/3) of said trust fund, absolutely."

All the beneficiaries named in Item III of the Shiverdecker will survived Edna Shiverdecker except Walter H. Shiverdecker, Mae Reed and Mary Plessinger. These three beneficiaries were siblings of James Shiverdecker and thus were related to Edna Shiverdecker by marriage only and not by blood.

The deceased beneficiaries left the following issue surviving who would be entitled to receive the bequest if it is saved by the anti-lapse statute (R.C. 2107.52), or if it is saved by the provisions of the will. Walter Shiverdecker is survived by his daughter, Laura E. Oliver, the plaintiff-appellee herein. Mae Reed was survived by her daughter, LaVaun Hopper, who died on February 14, 1988, more than thirty days after the death of Edna Shiverdecker. (See R.C. 2105.21.) Charles Douglas Hopper is the executor of her estate. Mary Plessinger is survived by two daughters, Wanda Bair and Donna Marie Williams.

In May 1988, Laura Oliver, filed a "Complaint For Construction of Will" in the Probate Division of the Court of Common Pleas of Montgomery County, asking the court to construe Item III(5) of Edna Shiverdecker's will and for an order directing the executor to distribute the bequest under Item III(5) to Laura Oliver as a relative of the decedent.

On July 12, 1988, Charles Hopper, as Executor of the Estate of LaVaun Hopper, defendant-appellee herein, filed an answer to the complaint of Laura Oliver, and his cross-claim in which he prayed for the construction of Edna Shiverdecker's will and for "an order directing the Executor to distribute the bequest for any deceased legatee to such legatee's issue who survived by thirty (30) days pursuant to the Ohio Anti-Lapse Statute * * *."

The Executor of the Estate of Edna Shiverdecker, Bank One, Dayton, N.A., filed answers to the complaint and the cross-claim. The surviving beneficiaries of Edna Shiverdecker's will filed motions to dismiss both the complaint and the cross-claim pursuant to Civ.R. 12(B)(6).

The probate court held the following:

"The sole issue before the Court is whether legacies to legatees not related by blood to the testator, lapse or pass to their issue, pursuant to R.C. 5107.52 [sic ] or otherwise.

"In this case the bequest was to the testator's brother-in-law. The Court finds that a brother-in-law is not a relative under the anti-lapse statute. 'The word "relative" [* * * ] is limited to persons related to the testator by consanguinity [ * * * and] does not include those "related" by affinity.' Kovar v. Kortan * * * [ (P.C.1965), 3 Ohio Misc. 63, 65, 32 O.O.2d 302, 303-304, 209 N.E.2d 762, 765].

"The bequest is absent any language that could save the bequest, there being no substitute legatee or saving language, and therefore, the bequest fails and the bequest becomes part of the rest and residue of the estate."

The Executor of the Estate of LaVaunS

Hopper appealed the probate court's decision. The court of appeals reversed the probate court and entered a declaratory judgment that the bequests to Mae Reed and Walter Shiverdecker did not lapse at their deaths, concluding that since Edna and James Shiverdecker had executed reciprocal wills on the same date, containing identical bequests to the same family members, all of whom were referred to as relatives whether related to that specific testator by blood or by marriage, this evidenced an intention on the part of both Shiverdeckers to treat all beneficiaries in the same manner whether related by blood or not, and that to hold otherwise would expose the issue of a different set of beneficiaries to the lapse of the gift depending upon which Shiverdecker died first. Thus, the court of appeals based its decision solely on the intention of the testator as found from all the surrounding circumstances.

The cause is before the court pursuant to the allowance of a motion to certify the record.

Robert F. Jefferis, for appellee Oliver.

Hanes, Schipfer, Hurley, McClurg, Cooper & Graber, Thomas H. Graber, II and Roger L. Hurley, Greenville, for appellee Hopper.

Thompson, Hine & Flory, C. Terry Johnson, David M. Rickert, Deborah D. Hunt and Teresa D. Jones, Dayton, for appellants Reimuller, Osie Bair Johnson, Wanda Bair, Wolfgang and Williams.

JOHN R. EVANS, Judge, Court of Appeals.

This is a will construction case in which we must determine the disposition of certain bequests to beneficiaries who predeceased the testator.

Because both the appellants and the appellees address arguments in their briefs to the application of the anti-lapse statute in this case, we make the following observations. Under the common law a testamentary gift to a beneficiary who predeceased the testator lapsed even if the beneficiary was related to the testator by blood. Today there are two ways to avoid the lapse of a bequest when the beneficiary predeceases the testator. One is through the application of R.C. 2107.52, the Ohio anti-lapse statute. The other way is through an expression of the testator's intention that the bequest not lapse.

The court of appeals decided this case on the basis of the testator's intention as determined from all the circumstances without relying on the anti-lapse statute to save the bequest. Accordingly, we will begin our analysis of this case on the basis of the testator's intention.

In the construction of a will, the sole purpose of the court should be to ascertain and carry out the intention of the testator. Such intention must be ascertained from the words contained in the will. Carr v. Stradley (1977), 52 Ohio St.2d 220, 6 O.O.3d 469, 371 N.E.2d 540, paragraph one of the syllabus; Townsend's Exrs. v. Townsend (1874), 25 Ohio St. 477, paragraphs one and two of the syllabus. The court may consider extrinsic evidence to determine the testator's intention only when the language used in the will creates doubt as to the meaning of the will. Sandy v. Mouhot (1982), 1 Ohio St.3d 143, 145, 1 OBR 178, 180, 438 N.E.2d 117, 118; Wills v. Union Savings & Trust Co. (1982), 69 Ohio St.2d 382, 23 O.O.3d 350, 433 N.E.2d 152, paragraph two of the syllabus.

We note that none of the briefs filed in this appeal points to any ambiguity or area of doubt in the will of Edna Shiverdecker which would...