Opinion
No. 104550.
1946-03-21
SHIVELY v. PERRINE et al.
Shively, Shively & Shell, of Dayton, for plaintiff John H. Shively, executor, and defendant Howard Heisterman. John D. McLeran and Lee Hollen, both of Dayton, for defendant Charles C. Perrine.
Action by John Shively, executor of the last will and testament of Viola Jane Heisterman, deceased, against Charles C. Perrine and others to construe the will of Viola Jane Heisterman, deceased.
Judgment in accordance with opinion.Shively, Shively & Shell, of Dayton, for plaintiff John H. Shively, executor, and defendant Howard Heisterman. John D. McLeran and Lee Hollen, both of Dayton, for defendant Charles C. Perrine.
LOVE, Judge.
This is an action to construe the will of Viola Jane Heisterman, deceased, commenced by John H. Shively, executor of her estate. The plaintiff (executor) propounds three questions concerning the construction of decedent's last will and testament:
1st. ‘Shall the property located at 222 Lexington Avenue be transferred to the defendant, Howard Heisterman under Item II of said will, free and clear of the mortgage indebtedness thereon?’
2d. ‘There being insufficient personal property to pay the bequest under Item III, the costs of administration, attorney fees, and executor's fees, and the secured claim of the Home Owners' Loan Corporation, shall any of said indebtedness be allocated to the real estate specifically devised under Item II of said will?’
3d. ‘What parcel of real estate shall your Executor sell in order to raise sufficient funds to pay all claims of said estate?’
The pertinent items of the will, which must be construed, are:
‘Item I: It is my will that my Executor, hereinafter named, first pay all my just debts and expenses of last sickness and funeral, as soon as practical after my decease.’
‘Item II: I give, devise and bequeath unto my stepson, Howard Heisterman, or his heirs, my property located at 222 Lexington Avenue, Dayton, Ohio, the same to be to him or them forever and in fee simple.’
‘Item III: I give and bequeath unto the children of my stepson, Howard Heisterman, to-wit-Howard Heisterman, Jr. and Robert Heisterman, the sum of Five Hundred ($500.00) dollars each.’
‘Item IV: I give, devise and bequeath unto my brother, Charles C. Perrine, presently residing at Dayton, Ohio, all the rest and residue of my estate be it real, personal or mixed and wheresoever situated, provided he survives me. * * *’
‘Item V: * * * ; and if necessary to convey any real estate that he shall have the power to sell either at public or private sale, and upon such terms as he may think proper, and execute and deliver deeds or other instruments of conveyance the same as I could were I living without an order of the court.’
The evidence discloses that Viola Jane Heisterman died testate on March 26, 1945; that her last will and testament was duly admitted to probate on April 4, 1945; that the same had been executed by her on November 6, 1944; and that John H. Shively was duly appointed and qualified as executor of her estate, which is being administered under Case No. 103239, Probate Court, Montgomery County, Ohio. The testatrix left personal property which was appraised at $1,907.32. Real estate not specifically devised and passing under Item IV of her last will was appraised at $5,500 for the property located on Home Avenue and $7,000 for the property located on Richmond Avenue and that said real estate is unencumbered. The real estate, specifically devised to her stepson, Howard Heisterman, or his heirs, as set forth in Item II of her will and referred to as 222 Lexington Avenue, was appraised at $8,000 and is subject to a mortgage to the Home Owners' Loan Corporation, the balance of which was $2,312.15 as of the 26th day of March, 1945.
The evidence further discloses that Viola Jane Heisterman's husband, John Heisterman, predeceased her in death; that the Lexington Avenue property had been their homestead; that John Heisterman had been the owner of the property; that the title passes to Viola Jane Heisterman under the will of John Heisterman; that John Heisterman and Viola Jane Heisterman were liable to the Home Owners' Loan Corporation on the original note in the sum of $4,394.07; and that the Home Owners' Loan Corporation released the John Heisterman estate and looked to Viola Jane Heisterman for the payment of said mortgage. The evidence shows that the Home Owners' Loan Corporation presented a claim to John H. Shively as executor of the estate of Viola Jane Heisterman which was duly allowed by him, and is reflected in the Schedule of Debts of her estate. Furthermore, a Proof of Claim was entered as an exhibit in the trial of the instant case. All debts of Viola Jane Heisterman have been paid except the claim arising out of the note of the Home Owners' Loan Corporation and the costs and expenses of administration including a fee to the executor and his attorney. The two legacies of $500 each to the children of her stepson remain unpaid. The court finds that there is insufficient personal property to pay the aforementioned items and legacies.
The plaintiff contends that the will is plain and unambiguous and that the property specifically devised, known as 222 Lexington Avenue, should be transferred to the defendant, Howard Heisterman, clear of the mortgage encumbrance thereon, and that one of the parcels of real estate in the residue should be sold to pay the debts including the claim of the Home Owners' Loan Corporation, the costs and expenses of administration, and the monetary legacies. The defendant, Charles C. Perrine, contends first that the court did not permit him to prove all the facts, circumstances and conditions surrounding the testatrix at the time of making her will. This question of evidence arose when the court sustained the plaintiff's objection to certain testimony offered by the defendant as to what the testatrix had said to the defendant. Second, that plaintiff has not proved the existence of an obligation on part of the decedent to the Home Owners' Loan Corporation; or, in other words, that the plaintiff failed to prove a personal liability of Viola Jane Heisterman for the payment of the note secured by a mortgage to the Home Owners' Loan Corporation, and that the note of the Home Owners' Loan Corporation was not a debt of decedent's estate.
The courts have repeatedly set forth certain fundamental principles to follow in will construction cases. The court must ascertain the intention of the testator and give effect thereto. Such intention must be ascertained from the words contained in the will. The words contained in the will, if technical, must be taken in the technical sense and, if not technical, in their ordinary sense unless it appears from the context that they were used by the testator in some secondary sense. All parts of the will must be construed together, and effect, if possible, given to every word contained in it. Wills are liberally construed to give effect to the testator's intentions. Wagner v. Schrembs, 44 Ohio App. 44, 184 N.E. 292;Townsend's Executors, v. Townsend, 25 Ohio St. 477; also see 41 O.J., Sections 467, 468, 469 and 470 (numerous cases cited); Addams and Hosford, Vol. I, page 626; Thompson v. Thompson, 4 Ohio St. 333;Rugg v. Smith, 40 Ohio App. 101, 177 N.E. 784 (Syllabus 1, 2, 7 & 9); Anderson v. Gibson, 116 Ohio St. 684, 157 N.E. 377, 54 A.L.R. 92 (Syllabus 1).
The defendant, Charles C. Perrine, sought to introduce testimony of statements or declarations made by the testatrix during lifetime as to what she intended to do about the mortgage on the property devised to Howard Heisterman in the event of death. The court considered this line of testimony and excluded it for reasons set forth below. The court confirms this ruling.
It is said in 41 O.J. Section 506, page 636: ‘Although it has been frequently laid down as a general rule that evidence of declarations by the testator is not admissible to aid in the construction of a will, the better view limits this rule to cases where there is no ambiguity. Thus, under the general rule that parol evidence is not admissible to vary, contradict, or add to the terms of the will, evidence of the testator's declarations of intention are inadmissible.’
It is said in 41 O.J. Section 477, pages 609 & 610: ‘The general rule is well settled in Ohio and in other jurisdictions that parol evidence is not admissible to vary, contradict, or add to the terms of a will, or to show a different intention on the part of the testator from that declared by the language of the will. To allow the language of a will to be varied or contradicted, or to allow omissions to be supplied, or apparent ambiguities to be removed by parol evidence, would, in effect, repeal the law requiring a will to be in writing and would introduce all the uncertainty, fraud, and perjury that the statute was designed to prevent.’
It is said in 41 O.J. Section 478, pages 610 & 611: ‘The rule excluding parol evidence finds a clear application in the case of an unambiguous will. In Ohio, as in other jurisdictions, where a will contains no ambiguity, latent or patent, and can be carried into effect without the aid of extrinsic evidence, such evidence is not admissible to show the intention of the testator or to give the language of the will a meaning different from that which the law attributes thereto. Where a clause of a will, taken in connection with the whole, is not of doubtful import, and the words of the will are applicable to any subject, they are to be applied accordingly, and the intent of the testator must be derived from the language he has used. In such case, parol evidence cannot be admitted to contradict, add to, or explain the contents of the will.’
It is said in 41 O.J. Section 456, at page 577: ‘If the language is plain, and the intention of the testator can be ascertained therefrom, the use of fast and court-made rules has no application. In such way the general rules of interpretation which have been laid down by the courts are to be taken as guides. The rule seems to be that where there is no ambiguity in the express provision of the will, it must be presumed that the testator intended what the will says.’
In Schouler on Wills, 6th Ed., Section 857, it is said: ‘Where the language of the will is clear, it must be interpreted according to its ordinary meaning and there is no room for judicial construction, and the rules of construction do not apply, as where the language of a will can be read in its ordinary and natural sense no construction is necessary.’
Also see Baker v. Alexander, 24 Ohio App. 117, 156 N.E. 223, Syllabus 1: ‘If language of will is plain, and meaning obvious, court cannot qualify or control the language by conjecture or doubt arising from extraneous facts.’ See Page's Lifetime Edition, Volume IV, Section 1625.
The court can find no ambiguity in the will of Viola Jane Heisterman, and, after examining the authorities, holds that this case does not fall within those cases which permit the introduction of extrinsic evidence. The entire will must, in this case, disclose the intention of the maker. See Wagner v. Schrembs, supra, Syllabus 4. The testimony sought to be introduced and the declaration of the testatrix' intentions is wholly inadmissible in will construction cases. The cases cited by counsel for defendant, Charles C. Perrine, in his brief, in support of his contention, do not apply. What was her intention as gathered from the will?
The will contains the usual clause concerning the payment of debts. It was followed by an unqualified, specific devise to Howard Heisterman, and that was followed by monetary legacies of $500 each to Howard Heisterman, Jr., and Robert Heisterman. She created a residuary estate to Charles C. Perrine, if he survived her, and the evidence shows that this consisted of personal property and several parcels of unencumbered real estate. The evidence discloses that she knew that the property she specifically devised was charged with a mortgage. The evidence shows that she paid on the mortgage during her lifetime and that the obligation to the Home Owners' Loan Corporation had been reduced since she had inherited the property from her husband. It seems to this court that she must have had in mind, when she created her residuary estate, the payment of all debts and legacies, and this is strengthened by the fact that Item V of her last will and testament gave to her executor the power to sell her real estate, if necessary, to convey any of it without an order of the court. She must have anticipated the executor's need for this power in the proper administration of her estate.
As a matter of fact, it is said in 41 O.J. Section 771, page 890: ‘A power of sale of real estate not specifically devised, given to executors in order to carry out the provisions of the will, is sufficient to create a charge upon the real estate for the payment of pecuniary legacies.’
In any event, in looking at the will from its four corners, the plan and arrangement of the will seem to reflect an intention that Howard Heisterman was to have the Lexington Avenue property free of any encumbrance thereon.
The case law of Ohio seems to support this finding as to her intention. In Glass v. Dunn, 17 Ohio St. 413, which seems to be the leading Supreme Court case on the subject, it was held that a specific devisee of land encumbered by a mortgage, cannot, as between him and general pecuniary legatees-and a fortiori, he cannot, as between him and specific legatees and devisees-avoid the burden of paying the mortgage debt. He takes the land cum onere, unless the debt can be satisfied out of the personal assets, after payment of debts and legacies, out of land descended to the heir, or from some fund provided by in the will for its payment. (Emphasis mine.) This case would fall, it would seem to the court, under one of the exceptions announced by the Supreme Court; but, in order to arrive at this conclusion, it is necessary to understand fully a residuary clause in a will. An understanding of this subject is also helpful in arriving at the intention of the testatrix.
According to Page on Wills, Lifetime Edition, Volume III, Section 990: ‘The residuum of an estate is that part of it left after paying the debts of testator and the expenses of administration and undisposed of by the rest of the will.’
By the term ‘residue’ is meant the balance left after the payment of all debts of the estate and the payment of all specific, demonstrative and general legacies. It means everything not otherwise disposed of. A residuary clause is the clause in a will by which that part of the property is disposed of which remains after satisfying previous bequests and devises. See 41 O.J. Section 740. Also, see Kuerze v. Western German Bank, 12 Ohio App. 412, at page 421, where the court said: ‘A residuary legatee is entitled only to what remains after all the debts of an estate are paid.’
While very little was said about the payment of the legacies at the trial of the case, and counsel do not seem to raise the question in their briefs, nevertheless, it is one of the questions propounded. It seems pertinent at this point to cite 41 O.J., pages 887 & 888, Section 769, in which it is said: ‘The well-settled general rule that where a testator, after bequeathing pecuniary legacies, gives the residue and remainder of his real and personal estate (or uses similar terms indicative of a gift of a mixed residue), the legacies are a charge on, or are payable out of, the residuary real estate, and, in case of a deficiency of personalty, must be paid out of the realty otherwise passing under the residuary clause is followed by the courts of Ohio. The fact that before the gift of the mixed residue is made, the testator makes a devise of an interest in realty, as well as bequests of pecuniary legacies, does not prevent the application of the rule.’
Also, see Clyde v. Simpson et al., 4 Ohio St. 445, and Moore v. Beckwith's Ex'r, 14 Ohio St. 129. And in the case of Y.M.C.A. et al. v. Davis, 106 Ohio St. 366, 140 N.E. 114, it was held: ‘A residuary devisee or legatee is presumed in law to be in the position of the last lien-holder, after all prior lawful claims and charges have been satisfied out of the estate.’
While this case concerns the payment of the Federal Estate Tax out of the estate as a whole, the court commented on the theory of the law which is important in this case. The court said on page 369 of 106 Ohio St., on page 115 of 140 N.E.: ‘In the distribution of property agreeably to the will it is elementary, of course, that the testator may, in a large measure, determine the priority in which his several bounties may be distributed, and in so doing it is to be presumed that a legacy, specific as to the person, thing, or amount, shall have priority over a mere general provision, especially, from its very nature, over all residuary devises and legacies. It would be a strange legal paradox, indeed, to hold residuary devises, legacies, or bounties prior to those that are express and specific. The plaintiffs in error are designated for the first time in item 10, after all specific devises and legacies have been provided for, in the following language: ‘All the rest, residue and remainder of my estate and property, real, personal and mixed, of every nature and description, scription, or wheresoever situate * * * I give, devise and bequeath to the Young Men's Christian Association,’ etc. This fact affords a clear and conclusive presumption that all charges imposed by the law or by the testator should be paid out of the estate before any right should ripen in behalf of the residuary devisees or legatees under this item.'
In 69 C.J., § 2571, it is said: ‘Property constituting the residuum of the testator's estate and disposed of by the residuary clause in his will is to be applied in payment of his debts before any of the property otherwise disposed of in the absence of any testamentary provisions to the contrary. Where the testator leaves no personal estate, all lands included in a residuary devise are liable for the debts of the testator. Residuary personalty is to be looked to first and if insufficient, then legacies of personalty, before the residuary real estate can be taken; but residuary real property must be exhausted before a specific devise can be charged.’
Also, in 5 A.L.R. page 488, is written the following: ‘It is a general rule where the matter is not controlled by special statutory provisions, that the personal assets of the estate of the decedent are subject to the payment of his debts before recourse may be had to his real estate. This rule applies to debts created by the testator which he has charged upon his real estate. Hence, as between the devisee or heir of real estate charged with a mortgage or lien executed by the decedent himself, and a residuary legatee or distributee of his personal estate, the latter is, in the absence of a contrary intention charged with the payment of the mortgage lien in exoneration of the real estate.’
The most decisive case the court has been able to find is the case of Huntington National Bank of Columbus v. Roan et al., Ohio App., 43 N.E.2D 769, 770, Syllabus 9: ‘Under will giving all personal property to widow in one paragraph, devising all real estate in a certain county to testator's sons in a succeeding paragraph and in last paragraph all the rest of the property was given to widow and children, the property devised in the last paragraph being the residuary estate, should be used for the payment of decedent's debts, including debt secured by a mortgage on land devised to the sons.’ This case is important because it discusses the questions raised by Glass v. Dunn, supra, 17 Ohio St. at page 775.
In the Huntington National Bank case, the testator gave all of his personal property to his widow in one paragraph and devised all real estate in Franklin County in a succeeding paragraph and in the last paragraph gave all the rest of the property to his widow and children. There were two mortgages on the property specifically devised. One was for $8,750, and the other was for $1,000. The $8750 mortgage was not a purchase-money mortgage, the decedent having borrowed the money during his lifetime for a specific purpose, and the court in its decision impressed a trust on said fund. There was a small balance on the $8,750 mortgage, the payment of which could not be obtained from the fund upon which the trust had attached, and the balance of the $1000 mortgage was unpaid. The unpaid balance on the $8,750 mortgage was held to be a charge on the real estate covered by the mortgage which had been specifically devised, but the balance due on the $1,000 mortgage was held payable out of the residuary estate. Since the residuary estate was insufficient to liquidate all the indebtedness, the court applied the case of Glass v. Dunn and held that the balance due on the $1,000 mortgage, which was in existence when the will was executed, after having been credited with the proceeds of the residuary estate, stood as a charge on the real estate specifically devised. This case makes order out of chaos and draws the necessary distinctions which make it possible for a better understanding of the case of Glass v. Dunn and assists the court in arriving at the intention of the testatrix and applying the rules of law which are applicable thereto.
But counsel for defendant, Charles C. Perrine, contends that no debt has been proved. Suffice to say that the evidence shows conclusively that a claim was presented; that a schedule of debts was filed in the estate; that the executor allowed the claim of the Home Owners' Loan Corporation, and that no step has been taken by any party in interest to requisition the executor to reject the claim. While the court believes that the testatrix was personally liable on the Home Owners' Loan Corporation note, it seriously questions whether the presentation of the claim would make any difference in this case. See last paragraph of Section 10504-75, General Code of Ohio. This section seems to protect a devisee or legatee even though the holder of the claim secured by a lien failed to present his claim, and, if the devisee had the right of contribution, exoneration or subrogation, he remains in the same position as he would have occupied if the claim had been presented and allowed. Furthermore, in the case of Thompson v. Thompson, supra (while the facts are different than the instant case), the testator took the real estate subject to a mortgage, and the court held that such testator could by express direction in his will charge his personal estate with the removal of an incumbrance upon his realty, although not personally bound for the debt.
The court in answer to the questions propounded by the plaintiff finds, first, that the property located at 222 Lexington Avenue is to be transferred to the defendant, Howard Heisterman, under Item II of the will free and clear of the mortgage indebtedness thereon. Second, there being insufficient personal property, the monetary legacies in Item III of said will, the costs of administration, attorney fees, executor fees, and the secured claim of the Home Owners' Loan Corporation shall be paid out of the residuary estate and no part of the debts and legacies shall be charged to the real estate specifically devised in Item II of said will, Third, that a parcel of real estate, devised in the residuary clause, shall be sold by the executor to raise sufficient funds to pay the legacies and all the claims against said estate, including the note secured by a mortgage on the real estate specifically devised. The court holds that it is within the discretion of the executor as provided in Item V of the testator's last will and testament to determine which piece of real estate shall be sold in order to pay the legacies and indebtedness so charged against the residuary estate.
Costs to be charged against the estate. Counsel may prepare the proper entry.