Wolfrum's Estate, In re

• Citation: 202 N.E.2d 631,120 Ohio App. 379
• Parties: , 29 O.O.2d 244 In re ESTATE of WOLFRUM.
• Decision Date: 12 July 1963
• Court: Ohio Court of Appeals

Page 379

120 Ohio App. 379

202 N.E.2d 631, 29 O.O.2d 244

In re ESTATE of WOLFRUM.

Court of Appeals of Ohio, Third District, Defiance County.

July 12, 1963.

Motion to Certify Record Allowed Dec. 23, 1964.

Otto W. Hess and George A. Meekison, Napoleon, for Robert Wolfrum.

John E. Zimmerman, Defiance, guardian, in pro. per.

GUERNSEY, Judge.

This appeal involves the renunciation of a succession under the statutes of descent and distribution pursuant, specifically, to Section 2105.061, Revised Code, providing as follows:

'Any competent adult entitled to receive any right, title, or interest in any property through intestate succession as provided by section 2105.06 of the Revised Code, may renounce such interest by filing a written statement of renunciation with the probate court within sixty days after notice of the hearing on inventory of the intestate's property has been given as required by section 2115.16 of the Revised Code. Any property renounced pursuant to this section shall be distributed as provided by law as if such competent adult had predeceased such decedent.'

Upon the death, intestate, of Harold P. Wolfrum, a resident of Ohio, his only son, Robert Wolfrum, a resident of Florida, together with Harold's widow and only daughter each became entitled to an undivided one-third interest in Harold's estate (which included both real and personal property having its situs in Ohio). For reasons not here pertinent, Robert desired to transfer his interest in the estate to his mother and sought the advice of counsel as to how this might be accomplished. Following this consultation Robert filed in the Probate Court of Defiance County, Ohio, where the estate was being administered, a written renunciation of his interest therein which appears to comply both in time and in substance with the provisions of the foregoing statute.

Thereafter, after the 60 days for compliance with the statute had expired, Robert determined that his renunciation did not achieve his objective and on October 22, 1962, he filed in Probate Court a document purporting to be a combined cancellation of his renunciation and a motion praying the court for an 'order cancelling and declaring void and of no force and effect said written renunciation filed as aforesaid.'

The Probate Court set the motion for hearing on November 9, 1962, ordered notice of the hearing to be given by registered mail to the lineal descendants of Robert, the next of kin of the decedent and to the Ohio guardian of the estates of six of Robert's children who resided with relatives in Ohio, and, after proof of the giving of the notice was filed, conducted a hearing on the date set. At this hearing Robert claimed that it was his understanding that his renunciation of his interest in the estate would operate to cause the same to become the property of his mother but, notwithstanding such claim, offered the testimony of the attorney whom he had consulted to the effect that Robert had been advised by him that the renunciation would cause Robert's interest to pass in equal shares to his mother and sister. As a matter of law, however, the operation of the renunciation statute and the statutes of descent and distribution, as applied to the facts herein, would cause the interest renounced by Robert to pass to his eight minor children, the six aforementioned together with two others residing with Robert in Florida.

Subsequent to the hearing the Probate Court stated in its opinion filed in the cause that 'moreover the mistake claimed by Robert, if actually made, was a mistake of law in which no fraud intervened,' and...