Opinion
No. 90-530
Submitted February 6, 1991 —
Decided May 29, 1991
Probate — Will construction — Court may consider extrinsic evidence to determine testator's intention, when — R.C. 2107.52, the anti-lapse statute, applies only to "relatives" who are related by consanguinity.
O.Jur 3d Decedents' Estates §§ 636, 875, 879.
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, 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, 76 Ohio St. 443, 81 N.E. 640, paragraph one of the syllabus, followed.)
APPEAL from the Court of Appeals for Montgomery County, No. CA 11817.
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 LaVaun 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, for appellee Hopper.
Thompson, Hine Flory, C. Terry Johnson, David M. Rickert, Deborah D. Hunt and Teresa D. Jones, for appellants Reimuller, Osie Bair Johnson, Wanda Bair, Wolfgang and Williams.
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 justify turning to extrinsic evidence to determine the testator's intention. Indeed, the opinion of the court of appeals did not indicate any ambiguity or doubt as a justification for resorting to extrinsic evidence. The court merely seized on the stipulated fact that reciprocal wills had been executed and developed the testator's intention from that starting point.
It is only by introducing the fact that the testator signed a reciprocal will with her husband on September 26, 1966, that a question concerning the use of the term "my relatives" can be raised. However, under the rule of construction cited above we can find no basis upon which to consider the fact that Edna Shiverdecker signed a reciprocal will with her husband. Our examination of the will of Edna Shiverdecker discloses no doubt or ambiguity which would justify the use of extrinsic evidence to determine the meaning of the will or any of its provisions.
The following language found in Item III(B) of Edna Shiverdecker's will is of particular significance:
"(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, * * *." (Emphasis added.)
This language demonstrates beyond all doubt that the testator knew what had to be said in order to preserve a bequest for the issue of a beneficiary who was not related by blood. The provision cannot be explained away on the basis that this "saving language" is required because the bequest is a trust. The language does more than dispose of the remainder interest in a trust after the death of the income beneficiary; it also preserves the entire gift for the daughters if the trust never comes into existence. We conclude that the testator could have included language of similar import in any of the other bequests under Item III of her will if she intended to preserve that gift for the issue of a beneficiary who had predeceased her.
Furthermore, even if we agree, arguendo, that there is doubt as to the meaning of the will of Edna Shiverdecker, we think the mere fact that the testator and her husband signed reciprocal wills in 1966 is insufficient evidence to determine the testator's intention in this matter. We note that there is no evidence of an agreement to leave the will of the survivor unchanged after the death of the first spouse. Many such reciprocal wills are signed by the parties with the understanding that the survivor will inherit everything and will be free to make appropriate changes concerning the disposition of the estate later in life. It is entirely possible that Edna Shiverdecker discussed the provisions of her will with her attorney in the light of her husband's death and determined that the existing provisions properly expressed her intentions, including the lapse of bequests to beneficiaries not related by blood.
The other way in which these bequests might be saved involves the application of R.C. 2107.52, the Ohio anti-lapse statute. In this case the will establishes that the bequests in question were made to beneficiaries related by affinity. Under these circumstances, we conclude that the anti-lapse statute has no application here. It is well-settled in Ohio that the anti-lapse statute applies only to "relatives" who are related by consanguinity. Schaefer v. Bernhardt (1907), 76 Ohio St. 443, 81 N.E. 640, paragraph one of the syllabus. Thus these bequests cannot be saved by application of this statute.
R.C. 2107.52 provides:
"When a devise of real or personal estate is made to a relative of a testator and such relative was dead at the time the will was made, or dies thereafter, leaving issue surviving the testator, such issue shall take the estate devised as the devisee would have done if he had survived the testator. If the testator devised a residuary estate or the entire estate after debts, other legacies and devises, general or specific, or an interest less than a fee or absolute ownership to such devisee and relatives of the testator and such devisee leaves no issue, the estate devised shall vest in such other devisees surviving the testator in such proportions as the testamentary share of each devisee in the devised property bears to the total of the shares of all of the surviving devisees, unless a different disposition is made or required by the will."
We hold that the will of Edna Shiverdecker is clear on its face as to the intention of the testator. Therefore, reference to extrinsic evidence is unnecessary to determine testator's intention and such reference will not be permitted. The probate court was correct in ignoring the stipulation of fact concerning the execution of reciprocal wills. Accordingly, we reverse the judgment of the court of appeals and reinstate the judgment of the probate court.
Judgment reversed.
MOYER, C.J., SWEENEY, DOUGLAS, WRIGHT and RESNICK, JJ., concur.
HOLMES, J., concurs separately.
JOHN R. EVANS, J., of the Third Appellate District, sitting for H. BROWN, J.
The majority correctly states the established law of Ohio as previously pronounced by this court on the interpretation of Ohio's anti-lapse statute. See R.C. 2107.52. This court has held that under the anti-lapse statute the term "relatives" is restricted to persons who are related to the testator by consanguinity and does not include "relatives" by way of marriage as in this case. Schaefer v. Bernhardt (1907), 76 Ohio St. 443, 81 N.E. 640.
In all reviews of wills and trusts, however, courts attempt to look for the testator's intent within the four corners of the will itself without applying extraneous evidence of such intent.
The court of appeals, in striving to carry out the intent of both the predeceased husband and the testator wife who had reciprocal wills, applied a new rule. Such rule was to the effect that in the case of certain reciprocal wills, the term "relatives" shall include persons related by both consanguinity and affinity for purposes of applying the anti-lapse statute. This, I believe, to be a novel, and basically sound, rule where it can be found within the instrument itself that such is the intention of the testator. Here, there was no specific language in the will to the effect that in the event of the predecease of the person named as a residual beneficiary such interest would go to the issue of such named beneficiary. Neither was there language in the will alluding to the fact that the disposition under the testator's will had been so drafted in keeping with the existence of a reciprocal will of her husband. Therefore, as stated by the majority opinion here, there had to be extraneous evidence as to the testator's intent, i.e., evidence that there were indeed such reciprocal wills. Thus, I must agree with the majority that this will must be read, and so interpreted, within its four corners, and the anti-lapse statute interpreted in light of this court's former interpretations of such statute. Although, as I have previously mentioned, the rule as fashioned by the court of appeals here has considerable merit based upon the goal of basically accomplishing the intent of the testator, I believe such a result should only be reached by legislative enactment. This is due to the great number of reciprocal wills which have been written in Ohio where it may reasonably be concluded that such wills have been drafted in light of the prior interpretations of the anti-lapse statute by this court.