Shalkhauser v. Beach
| Decision Date | 05 February 1968 |
| Docket Number | No. 712592,712592 |
| Citation | 14 Ohio Misc. 1,233 N.E.2d 527 |
| Parties | , 43 O.O.2d 20 Herbert E. SHALKHAUSER, Executor of the Estate of Noble D. Hepburn, Deceased, Plaintiff, v. John H. BEACH et al., Defendants. |
| Court | Ohio Court of Common Pleas |
DECISION OF REFEREE
ROBERT A. DECATUR, Referee.
This cause concerns the construction of the Will of Noble D. Hepburn, deceased, and in particular, Item III (c) of that will. Noble D. Hepburn died August 18, 1965, his will was admitted to probate April 20, 1966, by the Probate Court of Cuyahoga County.
Item III (c) of said will provides as follows:
(c) Thirty percent (30%) equally among the following who survive me, namely: my father's brother's grandson, John H. Beach, and his brothers and sisters, and the nieces and nephews of my deceased mother whose name was Kathline C. Johnston Hepburn.
It is alleged that the deceased mother of Noble D. Hepburn had one nephew, Harry A. Bliss, who predeceased the testator by twenty-eight years, and one niece, Marie Louise Horr, who predeceased the testator by eight years.
Harry A. Bliss, deceased nephew of the testator's mother, left one daughter surviving him, Imogene Bliss. Marie Louise Horr, deceased niece of testator's mother, left two children surviving her, Courtland Horr and Louise B. Sprague. All three of the above great-nephews and great-nieces survived the testator.
The defendants, Courtland Horr, Imogene Bliss, and Arthur W. Sprague, assignee of the interest held by Louise B. Sprague, contend first that Ohio Revised Code Section 2107.52, commonly known as the 'Anti-Lapse Statute,' applies so as to substitute the defendants, Imogene Bliss, Courtland Horr, and Arthur W. Sprague, children of deceased nephews and nieces of testator's deceased mother, in the place of their deceased parents.
Second, petitioner asks whether the language in Item III (c) 'and the nieces and nephews of my deceased mother whose name was Kathline C. Johnston Hepburn' encompasses a grand-nephew and two grand-nieces of the testator's deceased mother, since no nieces and nephews of Kathline C. Johnston Hepburn were alive at testator's decease or at the time of the execution of the will.
Does the Anti-Lapse Statute apply?
The Anti-Lapse Statute, Ohio Revised Code Section 2107.52, in essence, provides that if by will, a devise or bequest is made to a relative of the testator, and that relative is either dead at the time the will was executed or died thereafter, leaving issue which survive the testator, those issue shall take the share their deceased parent would have taken. The statute ends, after providing for a lapse in the residue, with the phrase: 'unless a different disposition is made or required by the will.'
It could be contended that the abovequoted phrase applies only to the second sentence of the statute of which it is a part, and that therefore where a devisee or legatee dies leaving issue surviving the testator, the statute applies irrespective of the intent of the testator.
Such a contention is unsound.
At common law a bequest to a person already dead was invalid and of no effect. Property so devised or bequeathed passed to the residuary beneficiaries. In the same fashion a bequest or devise to one who predeceased the testator, though living at the execution of the will, lapsed and fell into the residue for distribution. And a lapse in the residue at common law passed to the heirs and next of kin of the testator as intestate property, i. e., property undisposed of by will.
To avoid the harsh results of the common law when a testator clearly intended to distribute his property among his heirs and next of kin, the Legislature passed Section 2107.52 of the Revised Code. The statute is clearly remedial in nature avoiding the arbitrariness of the common law rule and assuring that a testator's probable intent will be followed.
Any contention that the Anti-Lapse Statute cannot be avoided by will is answered by considering that the obvious intent of the Legislature in enacting the statute was to eliminate an arbitrary and unreasonable common law rule. It is, therefore, unrealistic to assume that in correcting an arbitrary and inflexible rule to comport itself more closely with the probable intent of a testator the Legislature would provide an equally harsh, arbitrary, and inflexible rule by eliminating any right to avoid the new provision by appropriate manifestations of testamentary intent.
The interpretation is supported by Robert C. Bensing in his excellent article on the Ohio Anti-Lapse Statute. See Bensing, The Ohio Anti-Lapse Statute, 28 U.Cinn.L.Rev. 1, 29 (1959). And by many judicial pronouncements. Larwill's Executors v. Ewing, 73 Ohio St. 177, 76 N.E. 503 (1905); Woolley v. Paxson, 46 Ohio St. 307, 24 N.E. 599 (1889); Kelley v. Talifer, 31 Ohio Law Abst. 602 (App.1940); Jackson v. Shinnick, 3 Ohio N.P. 211 (1886).
As it is apparent that the statute may be avoided by a sufficient expression of intent, what language constitutes an expression of contrary intent as will avoid the application of the statute?
Words of survivorship are usually sufficient to indicate an intent that the statute not apply. In Jackson v. Shinnick, 3 Ohio N.P. 211 (1886), the court, in construing a devise to the testator's daughter and grandchildren limited as follows:
If at the time of my death, my daughter or any grandchild now living shall have died * * * estate shall go to the survivors share and share alike * * * .
considered the provision sufficient to avoid the statute, the ultimate determination, however, was based upon the construction of the above will provision and a codicil which did not contain any survivorship limitations.
In Kelley v. Talifer, 31 Ohio Law Abst. 602 (App.1940) a devise reading: 'Any and all other property of which I may be seized is to be divided equally among my surviving children,' was questioned. The court held that the words of survivorship were sufficient to avoid the application of the statute.
Further support for this interpretation of the Anti- -Lapse Statute is found in the statement of the general rule:
Pursuant to the general rule that the application of anti-lapse statutes may be controlled by the expressed intent of the testator, it has been held * * * that a contrary result may be reached where the testator used specific language making a disposition of the property inconsistent with that which would be reached under the anti-lapse statute. Annot. 63 A.L.R.2d 948, 956 (1959).
And further:
Where the testator uses words of survivorship indicating an intention that the legatee shall take the gift only if he outlives the testator it is clear that the statute against lapses has no application. Annot. 63 A.L.R.2d 1172, 1186 (1959), see also 56 Ohio Jur.2d, Wills, sec. 857 (1958).
Considering the provision of the Noble Hepburn Will, at issue in the instant litigation, i. e., 'Thirty percent (30%) equally among the following who survive me * * *' it should be obvious that the survivorship limitation is effective to avoid the application of the Anti-Lapse Statute. See Williams v. Williams, 152 Fla. 255, 9 So.2d 798 (1942); Re Cerdes' Estate, 245 Iowa 778, 62 N.E.2d 777, 70 A.L.R.2d 210 (1954); Re La Prejato's Will, 3 Misc.2d 9368 155 N.Y.S.2d 569 (1956); Re Conay's Estate, 121 N.Y.S.2d 486 (Sur.1953); Re Harris' Will, 138 Misc. 287, 245 N.Y.S. 570 (1930).
Defendants cite the case of Gale v. Keyes, 45 Ohio App. 61, 186 N.E. 755 (1933) as being closest in point. It is the opinion of this Referee that the case cited is most definitely not in point as the court therein held that the testator intended to benefit those living at the time of the execution of the will and not those living on the date of his death, as is the situation in the instant case.
For the proposition that words of survivorship are insufficient to avoid the application of the Anti-Lapse Statute, defendants cite Detzel v. Nieberding, 7 Ohio Misc. 262, 219 N.E.2d 327 (Prob.1966). The Hamilton County Probate Court held that the words 'provided she be living at the time of my death' were insufficient to avoid the statute.
However, defendants ignore the excellent opinion of Fletcher R. Andrews, Chief Referee of this Court, in Day v. Brooks, 10 Ohio Misc. 273, 224 N.E.2d 557 (Prob.1967), wherein he held that the phrase 'who shall be living at the time of my decease' was clearly sufficient to avoid the statute. Mr. Andrews, in mentioning Detzel v. Nieberding, noted briefly that it was distinguishable on its facts but decided to avoid expressing any opinion on it. It is this Referee's opinion that not only is Detzel v. Nieberding distinguishable, but it is also clearly and completely erroneous.
Do the words 'nieces and nephews' mean grandnieces and grandnephews?'
As a general proposition 'nieces and nephews' in their primary technical sense, 'import a consanguineous relationship and by modern usage mean the sons or daughters of a brother or sister.' Ayers v. Public Service Co-ord. Transp., 16 N.J.Misc. 60, 196 A. 466. Accord. Fedi v. Ryan, 118 N.J.L. 516, 193 A. 801, 802, 803; Schoen v. Siegmund, 119 N.J.Eq. 524, 183 A. 292, 294; In re Hunt's Estate, 53 Hun. 466, 6 N.Y.S. 186, 188; Cromer v. Pinckney, 3 Barb.Ch. 460, 475 (N.Y.); In re Root's Estate, 187 Pa. 118, 40 A. 818, 819.
Further, there is also a presumption that the words used in a will are intended to be taken in their ordinary and primary sense and meaning. Everhard v. Brown, 75 Ohio App. 451, 62 N.E.2d 901 (1945).
The Everhard case, supra, is directly in point. The...
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