Osborn v. Osborn

• Decision Date: 24 June 1966
• Docket Number: No. 760264,760264
• Citation: 10 Ohio Misc. 171,226 N.E.2d 814
• Parties: , 39 O.O.2d 275 OSBORN v. OSBORN et al.
• Court: Ohio Court of Common Pleas

Page 171

10 Ohio Misc. 171

226 N.E.2d 814, 39 O.O.2d 275

OSBORN v. OSBORN et al.

No. 760264.

Court of Common Pleas of Ohio, Cuyahoga County.

June 24, 1966.

Jones, Day, Cockley & Reavis, Ellis H. McKay, Alexander Ginn, Marc L. Swartzbaugh and Nelson P. Rose, Cleveland, for plaintiff.

Arter, Hadden, Wykoff & Van Duzer, Summer Canary, Robert B. Preston and Edward S. Merrick, Cleveland, for defendants.

Robert Biechle, Cleveland, for Cleveland Trust Co. JOHN V. CORRIGAN, Judge.

In this matter the plaintiff asks that the court vacate, set aside and hold for naught an antenuptial agreement executed by her and her deceased husband, Henry C. Osborn, on August 1, 1955; that she be restored to her legal rights as surviving spouse of said Henry C. Osborn, deceased; that the court adjudge and decree that, by reason of Henry C. Osborn's retention of dominion over the property in the Henry C. Osborn Trust to the time of his death, plaintiff is entitled to take her distributive share under Section 2105.06, Revised Code, in the property included within said trust as well as in the net estate of Henry C. Osborn, deceased.

Before plunging into a discussion of all the issues involved the court lists the following statements of fact, which were substantially agreed to by and between counsel during the course of the trial. Henry C. Osborn died testate on May 3, 1961, a resident of Cuyahoga County, leaving plaintiff as his surviving spouse. His last will and testament, executed on March 4, 1955, was admitted to probate in Case No. 608836 of the Probate Court of this county on May 23, 1961. Defendant, Henry C. Osborn, Jr., is the duly appointed, qualified and acting executor of the estate. Defendant, The Cleveland Trust Company, is Trustee of the Henry C. Osborn Trust originally established March 8, 1920, and modified from time to time with the last modification dated March 5, 1955, and hereinafter called the 'No. 1 Trust.'

At the death of Henry C. Osborn on May 3, 1961, his only children, two sons, Henry C. Osborn, Jr., and Tracy K. Osborn were then living, although the latter died on May 18, 1961, survived by no spouse or issue. Henry C. Osborn, Jr., then is the only living child, is a beneficiary under his will, the sole income beneficiary under the No. 1 Trust, and the father of four living children.

Neither the will nor the No. 1 Trust made any provision for the plaintiff or any issue of hers, four living adult children. In July 1961, plaintiff as surviving spouse duly elected, pursuant to Section 2107.39, Revised Code, to take against the will and take her distributive share under Section 2105.06, Revised Code.

On August 1, 1955, plaintiff and Henry C. Osborn, then being 54 and 77 years of age respectively, executed at Marion Massachusetts, an antenuptial agreement which had been drafted in February 1955, by counsel for Henry C. Osborn in Cleveland, Ohio. It was ultimately signed in the same form except for the date and plaintiff's name which were added in ink at or about the time of its execution, following a discussion of the agreement between the parties and a Massachusetts attorney, a friend of plaintiff's family who was later compensated by Henry C. Osborn. The marriage took place at Marion, Massachusetts, on August 27, 1955.

Henry C. Osborn was a lifelong resident of Cleveland, Ohio, with a summer home in Marion, Massachusetts and a winter place in Sarasota, Florida. Plaintiff was born in Colorado, resided in Ohio from 1907 to 1923; in Illinois from 1923 to 1927; in Massachusetts from 1927 to 1941; in Cleveland, Ohio from 1941 to 1947; and back to Massachusetts from 1947 to 1955. Her first husband, Millar Brainard, died in 1953. At the time of the execution of the antenuptial agreement and at the time of the marriage to Henry C. Osborn she was a resident of Marion, Massachusetts. Subsequent to the marriage their residence was 11101 Magnolia Drive, Cleveland, Ohio.

As of August 1, and August 27, 1955, plaintiff had life income and control of a revocable trust theretofore established by her and having its situs in Massachusetts, of the value of $165,600. At those dates her total assets, excluding the property carried in the trust, had a net value of $75,000. On the same dates she had four living children.

As of August 1, and August 27, 1955, the No. 1 Trust was in effect and the property carried therein had a net value of $2,615,640, of which amount $1,657,500, consisted of common stock of Addressograph-Multigraph Corporation with a cost basis of $185,256. Henry C. Osborn was an officer and a director of that corporation and at these dates his total assets, excluding property carried in the No. 1 Trust, had a net value of $100,000. On the same dates he had two living children.

From August 1, 1955, until his death on May 3, 1961, the property carried in the No. 1 Trust and the income therefrom comprised Mr. Osborn's sole source of funds for payment of living expenses and other obligations, except salary, pension and director's fees from Addressograph-Multigraph, totaling $26,962, and statutory social security benefits.

On December 15, 1955, Henry C. Osborn established with The Cleveland Trust Company as trustee a trust providing certain benefits for the plaintiff, hereinafter called the 'No. 4 Trust.' The initial corpus of said trust consisted of securities previously carried in the No. 1 Trust of the value of $218,900. Although he retained the right to revoke or modify during his lifetime, except for a modification doubling the income to his wife on January 31, 1956, the No. 4 Trust was not modified or revoked and at his death became irrevocable. Between the final establishment of the No. 4 Trust on December 15, 1955, and hi death on May 3, 1961, plaintiff received all of the net income totaling $51,546. At the death of Henry C. Osborn, the No. 4 Trust was in full effect and was valued at $634,762. Under the terms of the No. 4 Trust, plaintiff has a testamentary power of appointment thereof, which power she has exercised. At no time was Henry C. Osborn or any issue of his designated a beneficiary under plaintiff's will.

In March 1956, Henry C. Osborn purchased a residence in Sarasota, Florida, for a consideration of $53,000. Title was taken in the name of plaintiff and Mr. Osborn as tenants by the entirety, and at his death the entire title vested in plaintiff. In March 1961, he purchased an adjoining unimproved lot for $13,200. Title to this lot, which has remained unimproved, was likewise taken in the name of the plaintiff.

At the outset of the trial counsel for defendants renewed his motion previously overruled by the court that the plaintiff be required to separately state and number the causes of action contained in her petition. In support of the motion, counsel argued that the petition states three separate and distinct causes of action. One is the action to set aside the antenuptial agreement on the ground it was void at its inception; one is the action to set aside the agreement on the ground it was voidable; and the third is the action which seeks to give plaintiff the right to invade the corpus of the trusts, which were created during Henry C. Osborn's lifetime. Counsel for plaintiff countered with the argument that the petition states a single cause of action relating solely to the establishment of the property rights which plaintiff may have as surviving spouse, by a single means-judicially setting aside the antenuptial agreement and establishing those rights. After extended discussion, while conceding that the petition raised multiple issues and that it was essential to plaintiff's case that she prevail on the issue of nullifying the antenuptial agreement in order to achieve her objective-participation in the disposition of the decedent's assets as surviving spouse, this court nevertheless denied defendants' motion. The court viewed the lawsuit as an attempt to set aside the agreement which would result in restoring her to the full rights of a surviving spouse entitled to her distributive share, both in the probate estate and in the trusts which she alleges should be included in the assets to be administered within the estate.

Basically the two issues in this case concern the validity of the antenuptial agreement and the validity of the No. 1 Trust created by Henry C. Osborn on March 8, 1920. Plaintiff claims that her rights on all issues in this case must be determined in accordance with Ohio law, while the defendants argue that the validity of the antenuptial agreement is a question of Massachusetts law, but is likewise binding on the parties under the law of Ohio. The plaintiff relies principally on Juhasz v. Juhasz, 134 Ohio St. 257, 16 N.E.2d 328, 117 A.L.R. 993, which they contend under circumstances present in this case requires a defendant to offer proof that there was a disclosure of the nature, extent, and value of the assets of the parties to an antenuptial contract. Counsel for defendants assert that under Massachusetts law, Wellington v. Rugg, 243 Mass. 30, 136 N.E. 831, no such disclosure of assets is required.

The pertinent syllabi in Juhasz, supra, reads:

'2. An antenuptial contract voluntarily entered into during the period of engagement is valid when the provision for the wife is fair and reasonable under all the surrounding facts and circumstances.

'3. When the amount provided for the wife in an antenuptial contract entered into during the existence of the confidential relation arising from an engagement is wholly disproportionate to the property of the prospective husband in the light of all surrounding circumstances and to the amount she would take under the law, the burden is on those claiming the validity of the contract to show that before it was entered into he made full disclosure to her of the nature, extent and value of his property or that she then had full knowledge thereof without such disclosure.'

In Wellington v. Rugg, supra, the Massachusetts...