State ex rel. Martha Lee v. Betty D. Montgomery, Attorney General of Ohio,.

• Decision Date: 09 September 1999
• Docket Number: 98AP-1516,99-LW-3874
• Parties: State of Ohio ex rel. Martha Lee et al., Relators v. Betty D. Montgomery, Attorney General of Ohio, Respondent.
• Court: United States Court of Appeals (Ohio)

State of Ohio ex rel. Martha Lee et al. Relators v. Betty D. Montgomery, Attorney General of Ohio Respondent.

No. 98AP-1516

99-LW-3874 (10th)

Court of Appeals of Ohio, Tenth District Franklin.

September 9, 1999

IN MANDAMUS

Martha Lee, for relators.

Betty D. Montgomery, Attorney General, and Monica A. Moloney, for respondent.

OPINION

BROWN J.

Relator Martha Lee, representative of the "Unidentified Members of the Class of Beneficiaries of the Walter E. Havighurst Fund" and "acting as a citizen of Ohio and the United States of America," has filed a complaint in mandamus with this court against respondent, Betty D. Montgomery, the Attorney General for the state of Ohio. Based upon the following, relator's request for a writ of mandamus is denied.

On September 7, 1988, Walter E. Havighurst ("testator") executed a will. The will made specific bequests of money and/or property to the testator's heirs and to Miami University in Oxford, Ohio, where the testator had served as a professor. The will also directed that the balance of the testator's estate fund a trust established "to promote and fund educational projects through the Miami University International Center, Oxford, Ohio, for building cross-cultural understanding between the peoples of the United States of America and the Union of Soviet Socialist Republics." The will designated that the trustee of the trust would be The First National Bank of Southwestern Ohio ("First National Bank") and that the trust would be referred to as the "Walter E. Havighurst Fund."

The will also provided instructions on how the trust should be administered:

*** The President of Miami University, Oxford, Ohio, or his or her designee, shall have the sole discretion to determine the nature of said projects, within the guidelines set forth below, and to determine the amounts necessary to fund said projects.

1. Funding and promoting presentations to members of the general public, on the Soviet Union;

2. Funding and promoting classes and presentations to Miami University students and children on various aspects of Soviet life;

3. Funding and promoting study groups and classes for Miami University students and adults on Soviet-American relations and and [sic] contemporary Soviet society;

4. Funding and promoting presentations, seminars, and studies on relations between the governments of the United States and the Soviet Union;

5. Funding and promoting programs and classes dealing with conflict relationships at the international level;

6. Funding and promoting Miami University student, and group trips by members of the Oxford, Ohio community to the Soviet Union through a "sister city" program, according to guidelines set forth by Sister Cities, International, Washington, D.C.;

7. Funding and promoting group trips to the Soviet Union to allow Miami University students, Oxford, Ohio citizens, and other Americans to meet and establish direct contact with municipal officials, industrial workers, educators, students, medical, legal, and other professionals, agriculturists, and creative artists;

8. To promote and fund exchanges of children's artwork between Soviet and American children and to promote and fund consultative services to municipalities and groups wishing to establish direct contact with Soviet people and their counterparts.

9. To establish and fund an endowed professorship of Soviet-American Relations at Miami University, Oxford, Ohio.

The testator died on February 3, 1994, and the will was admitted to probate on February_11, 1994.

On October 20, 1994, First National Bank, acting as executor of the testator's estate, filed an action seeking declaratory relief in the Butler County Court of Common Pleas, Probate Division. First National Bank sought declarations that the trust created no reversionary interest in the testator's heirs and that the will creating the trust authorized First National Bank to fund programs related to the Soviet Union despite the fact that the Soviet Union dissolved in December 1991. Alan and Douglas Havighurst, heirs to the testator's estate, filed a counterclaim for declaratory relief arguing that:

*** [T]he political, economic and social conditions of the USSR at the time that the will was executed differed significantly from the conditions at the time that the complaint was filed; that the trust cannot be carried out in accordance with its terms; that Miami University's conduct and its status as an instrumentality of the state of Ohio precludes the preservation of the trust under any equitable doctrine; that the proposed gift by trust has thus failed; and that the residuary estate thus constitutes intestate property that must pass pursuant to R.C. 2105.06, the statute of descent and distribution. ***

First Natl. Bank of Southwestern Ohio v. Miami Univ. (1997), 121 Ohio App.3d 170, 174. Respondent was also included as a party to the proceedings pursuant to R.C. 109.25.

On February 20, 1996, the probate court declared that the trust is a charitable trust under Ohio law. The court also held that the term "Union of Soviet Socialist Republics" was to be construed to also mean the "former Union of Soviet Socialist Republics" and "Soviet Union" was to be construed to also mean the "former Soviet Union." The court dismissed the counterclaim filed by Alan and Douglas Havighurst. The Twelfth District Court of Appeals affirmed the probate court's decision in First Natl. Bank of Southwestern Ohio, at 170.

On November 27, 1998, relator filed a complaint against respondent in our court stating that she:

*** and other Unidentified Members of the Class of Beneficiaries of the Walter E. Havighurst Fund, are entitled to claim and to enjoy certain rights, privileges, and benefits deriving from the trust and their relationship thereto, including, but not limited to, monetary grants for trips abroad to the specified countries ***.

Appellant requested that a writ of mandamus be issued by our court:

*** to said respondent (1) directing her to take such action as is necessary, including but not limited to litigation and appointment of special experts, to resolve the matter of identifying the rest of the members of the "class of beneficiaries" of the Walter Havighurst Fund as referenced in the order of the Butler County Probate Court so that their respective rights and interests in the charitable trust might be protected; and (2) directing her to cause the Trustee of the Walter Havighurst Fund to come into compliance with the registration and reporting requirements of the Ohio Charitable Trust Act.

R.C. 2731.01 defines mandamus as:

*** a writ, issued in the name of the state to an

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