[Cite as Bills v. Babington, 2019-Ohio-3924.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT HURON COUNTY
Michael M. Bills Court of Appeals No. H-19-001
Appellant Trial Court No. CW 2017 00001
v.
Tara Babington, Administrator, etc., et al. DECISION AND JUDGMENT
Appellees Decided: September 27, 2109
*****
Carl J. Kamm III, for appellant.
Kathryn Frombaugh, for appellees.
PIETRYKOWSKI, J.
{¶ 1} In this will-construction action, plaintiff-appellant, Michael M. Bills, appeals
the January 15, 2019 judgment of the Huron County Court of Common Pleas, Probate
Division, which granted summary judgment in favor of appellee Kathryn Frombaugh, et al., determining that appellees, the minor children of the sole will beneficiary, were
entitled to share equally under the will. For the reasons that follow, we affirm.
{¶ 2} The will that is the subject of this dispute was admitted to probate on June
15, 2017, following the death of the testator, Ronald L. Bills, on May 14, 2017.
Ronald’s surviving next-of-kin include his nephew, appellant Michael Bills, and a great-
niece and great-nephew. Ronald’s will provided that after payment of all his debts and
funeral expenses, the remainder of his estate would go to “my beloved step-
granddaughter, Erica K. Hemsath-Anderson, in fee simple, absolutely and forever, per
stirpes.” The will also appointed Erica as executrix. The will was executed on December
10, 2007. Erica predeceased Ronald in April 2016, and was survived by her two minor
children.
{¶ 3} On December 29, 2017, appellant commenced this action. Appellant named
as defendants the administrator of the estate, Tara Babington, the suggested beneficiaries,
M.A. and S.A., the minor children of Erica, and Emily and Evan Bills, great-niece and
great-nephew of Ronald. On February 2, 2018, Kathryn Frombaugh, guardian ad litem
for the minor children, filed an answer to appellant’s complaint.
{¶ 4} On December 11, 2018, appellant and the guardian ad litem to appellees
filed motions for summary judgment. Appellees argued that the use of the term “per
stirpes” when read in the context of the entire will evidenced an intent to make a
secondary gift to the heirs of Erica, the named devisee. Appellees further asserted that
Ronald had maintained a relationship with the children until his death.
2. {¶ 5} Conversely, appellant argued that the gift to Erica lapsed upon her death
because Ohio’s anti-lapse statute, R.C. 2107.52, does not apply to step-grandchildren and
that the term “per stirpes” refers only to the mode of distribution or the manner in which
the shares are divided in a root generation; it does not create a right of survivorship.
{¶ 6} On January 15, 2019, the trial court granted appellees’ motion for summary
judgment. The court concluded that in reviewing the language used in the will and the
circumstances surrounding the execution of the will, Ronald’s bequest to Erica “per
stirpes” intended a secondary gift to her heirs if she predeceased him.
{¶ 7} This appeal followed with appellant raising two assignments of error for our
consideration:
First Assignment of Error: The trial court erred in failing to hold
that the term “per stirpes” is only a mode of distribution.
Second Assignment of Error: The trial court erred in granting
summary judgment in favor of appellees and against appellant by holding
that Ronald L. Bills intended a secondary gift to go to Erica K. Hemsath-
Anderson’s heirs if she predeceased him.
{¶ 8} As the assignments of error are related, they will be jointly addressed. Our
review of both a judgment involving the construction of a will and a summary judgment
determination is de novo. Belardo v. Belardo, 187 Ohio App.3d 9, 2010-Ohio-1758, 930
N.E.2d 862, ¶ 7 (8th Dist.); Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671
N.E.2d 241 (1996).
3. {¶ 9} We begin with the basic law guiding will interpretation which provides;
“[i]n the construction of a will, the sole purpose of the court should
be to ascertain and carry out the intention of the testator.” Oliver v. Bank
One, Dayton, N.A. (1991), 60 Ohio St.3d 32, 34, 573 N.E.2d 55, 58, citing
Carr v. Stradley (1977), 52 Ohio St.2d 220, 6 O.O.3d 469, 371 N.E.2d 540,
paragraph one of the syllabus, and Townsend’s Exrs. v. Townsend (1874),
25 Ohio St. 477, 1874 WL 101, paragraph one of the syllabus. This intent is
to be gleaned from the words used. Id., citing Townsend’s Exrs., paragraph
two of the syllabus. These words, “‘if technical, must be taken in their
technical sense, and if not technical, in their ordinary sense, unless it
appear(s) from the context that they were used by the testator in some
secondary sense.’” Ohio Natl. Bank of Columbus v. Adair (1978), 54 Ohio
St.2d 26, 30, 8 O.O.3d 15, 17, 374 N.E.2d 415, 418, quoting Townsend’s
Exrs., 25 Ohio St. 477, paragraph three of the syllabus.
Polen v. Baker, 92 Ohio St.3d 563, 565, 752 N.E.2d 258, 260 (2001).
{¶ 10} Paramount is “‘[t]he general rule [that] in the interpretations of wills * * *
the intention of the testator is to govern, and when that is ascertained, all things must
yield to it, the object being to carry out the purposes and intention of the testator as
expressed in his will, and all technical rules must bend to this rule.’” Id. at 566, quoting
Jewett v. Jewett, 12 Ohio C.D. 131, 1900 WL 1176, *2 (1900).
4. {¶ 11} At issue in this case is the interpretation of the sole bequest in Ronald’s
will, which provides:
ITEM II. I hereby appoint, devise and bequeath all the rest, residue
and remainder of my property, real, personal and mixed, of every kind and
description, wheresoever situated, which I own, have the power of
appointment over, or have the right to dispose of at the time of my decease
to my beloved step-granddaughter, Erica K. Hemsath-Anderson, in fee
simple, absolutely and forever, per stirpes.
{¶ 12} Specifically, at issue is whether the term “per stirpes” created a secondary
devise to the heirs of beneficiary, Erica. The term means that a gift is “[p]roportionately
divided between beneficiaries according to their deceased ancestor’s share.” Black’s
Law Dictionary (11th Ed.2019). Ohio courts have uniformly agreed that the term “per
stirpes” relates to the mode of distribution rather than the manner of distribution. In other
words, the term does not create a survivorship right, it explains how the estate is to be
divided among the persons entitled to take. Belardo, 187 Ohio App.3d 9, 2010-Ohio-
1758, 930 N.E.2d 862, at ¶ 18.
{¶ 13} The parties debate the trial court’s reliance on a case where the court
interpreted a “per stirpes” clause, without a secondary taker, as providing a secondary gift
to the heirs of the named person who predeceased the testatrix. Richland Trust Co. v.
Becvar, 44 Ohio St.2d 219, 339 N.E.2d 830 (1975). In Becvar, the testatrix made several
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[Cite as Bills v. Babington, 2019-Ohio-3924.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT HURON COUNTY
Michael M. Bills Court of Appeals No. H-19-001
Appellant Trial Court No. CW 2017 00001
v.
Tara Babington, Administrator, etc., et al. DECISION AND JUDGMENT
Appellees Decided: September 27, 2109
*****
Carl J. Kamm III, for appellant.
Kathryn Frombaugh, for appellees.
PIETRYKOWSKI, J.
{¶ 1} In this will-construction action, plaintiff-appellant, Michael M. Bills, appeals
the January 15, 2019 judgment of the Huron County Court of Common Pleas, Probate
Division, which granted summary judgment in favor of appellee Kathryn Frombaugh, et al., determining that appellees, the minor children of the sole will beneficiary, were
entitled to share equally under the will. For the reasons that follow, we affirm.
{¶ 2} The will that is the subject of this dispute was admitted to probate on June
15, 2017, following the death of the testator, Ronald L. Bills, on May 14, 2017.
Ronald’s surviving next-of-kin include his nephew, appellant Michael Bills, and a great-
niece and great-nephew. Ronald’s will provided that after payment of all his debts and
funeral expenses, the remainder of his estate would go to “my beloved step-
granddaughter, Erica K. Hemsath-Anderson, in fee simple, absolutely and forever, per
stirpes.” The will also appointed Erica as executrix. The will was executed on December
10, 2007. Erica predeceased Ronald in April 2016, and was survived by her two minor
children.
{¶ 3} On December 29, 2017, appellant commenced this action. Appellant named
as defendants the administrator of the estate, Tara Babington, the suggested beneficiaries,
M.A. and S.A., the minor children of Erica, and Emily and Evan Bills, great-niece and
great-nephew of Ronald. On February 2, 2018, Kathryn Frombaugh, guardian ad litem
for the minor children, filed an answer to appellant’s complaint.
{¶ 4} On December 11, 2018, appellant and the guardian ad litem to appellees
filed motions for summary judgment. Appellees argued that the use of the term “per
stirpes” when read in the context of the entire will evidenced an intent to make a
secondary gift to the heirs of Erica, the named devisee. Appellees further asserted that
Ronald had maintained a relationship with the children until his death.
2. {¶ 5} Conversely, appellant argued that the gift to Erica lapsed upon her death
because Ohio’s anti-lapse statute, R.C. 2107.52, does not apply to step-grandchildren and
that the term “per stirpes” refers only to the mode of distribution or the manner in which
the shares are divided in a root generation; it does not create a right of survivorship.
{¶ 6} On January 15, 2019, the trial court granted appellees’ motion for summary
judgment. The court concluded that in reviewing the language used in the will and the
circumstances surrounding the execution of the will, Ronald’s bequest to Erica “per
stirpes” intended a secondary gift to her heirs if she predeceased him.
{¶ 7} This appeal followed with appellant raising two assignments of error for our
consideration:
First Assignment of Error: The trial court erred in failing to hold
that the term “per stirpes” is only a mode of distribution.
Second Assignment of Error: The trial court erred in granting
summary judgment in favor of appellees and against appellant by holding
that Ronald L. Bills intended a secondary gift to go to Erica K. Hemsath-
Anderson’s heirs if she predeceased him.
{¶ 8} As the assignments of error are related, they will be jointly addressed. Our
review of both a judgment involving the construction of a will and a summary judgment
determination is de novo. Belardo v. Belardo, 187 Ohio App.3d 9, 2010-Ohio-1758, 930
N.E.2d 862, ¶ 7 (8th Dist.); Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671
N.E.2d 241 (1996).
3. {¶ 9} We begin with the basic law guiding will interpretation which provides;
“[i]n the construction of a will, the sole purpose of the court should
be to ascertain and carry out the intention of the testator.” Oliver v. Bank
One, Dayton, N.A. (1991), 60 Ohio St.3d 32, 34, 573 N.E.2d 55, 58, citing
Carr v. Stradley (1977), 52 Ohio St.2d 220, 6 O.O.3d 469, 371 N.E.2d 540,
paragraph one of the syllabus, and Townsend’s Exrs. v. Townsend (1874),
25 Ohio St. 477, 1874 WL 101, paragraph one of the syllabus. This intent is
to be gleaned from the words used. Id., citing Townsend’s Exrs., paragraph
two of the syllabus. These words, “‘if technical, must be taken in their
technical sense, and if not technical, in their ordinary sense, unless it
appear(s) from the context that they were used by the testator in some
secondary sense.’” Ohio Natl. Bank of Columbus v. Adair (1978), 54 Ohio
St.2d 26, 30, 8 O.O.3d 15, 17, 374 N.E.2d 415, 418, quoting Townsend’s
Exrs., 25 Ohio St. 477, paragraph three of the syllabus.
Polen v. Baker, 92 Ohio St.3d 563, 565, 752 N.E.2d 258, 260 (2001).
{¶ 10} Paramount is “‘[t]he general rule [that] in the interpretations of wills * * *
the intention of the testator is to govern, and when that is ascertained, all things must
yield to it, the object being to carry out the purposes and intention of the testator as
expressed in his will, and all technical rules must bend to this rule.’” Id. at 566, quoting
Jewett v. Jewett, 12 Ohio C.D. 131, 1900 WL 1176, *2 (1900).
4. {¶ 11} At issue in this case is the interpretation of the sole bequest in Ronald’s
will, which provides:
ITEM II. I hereby appoint, devise and bequeath all the rest, residue
and remainder of my property, real, personal and mixed, of every kind and
description, wheresoever situated, which I own, have the power of
appointment over, or have the right to dispose of at the time of my decease
to my beloved step-granddaughter, Erica K. Hemsath-Anderson, in fee
simple, absolutely and forever, per stirpes.
{¶ 12} Specifically, at issue is whether the term “per stirpes” created a secondary
devise to the heirs of beneficiary, Erica. The term means that a gift is “[p]roportionately
divided between beneficiaries according to their deceased ancestor’s share.” Black’s
Law Dictionary (11th Ed.2019). Ohio courts have uniformly agreed that the term “per
stirpes” relates to the mode of distribution rather than the manner of distribution. In other
words, the term does not create a survivorship right, it explains how the estate is to be
divided among the persons entitled to take. Belardo, 187 Ohio App.3d 9, 2010-Ohio-
1758, 930 N.E.2d 862, at ¶ 18.
{¶ 13} The parties debate the trial court’s reliance on a case where the court
interpreted a “per stirpes” clause, without a secondary taker, as providing a secondary gift
to the heirs of the named person who predeceased the testatrix. Richland Trust Co. v.
Becvar, 44 Ohio St.2d 219, 339 N.E.2d 830 (1975). In Becvar, the testatrix made several
bequests in her will; many of the bequests stated that if the primary taker predeceased
5. her, the gifts would lapse. Id. at 221-222. At issue was the provision in the residuary
clause which provided: “(o)ne seventh (1/7) to Louise Hummel, per stirpes.” Id. at 219.
{¶ 14} Looking at the entire will, the court determined that where the testatrix
intended a gift to lapse, it was specifically provided. Id. at 224. Thus, the court, in order
to uphold the intended meaning of the devise, held that the “per stirpes” designation
meant that the gift did not lapse and intended that a secondary gift go to the heirs of the
named person. Id. at 225. In making this determination, the Becvar court relied upon a
prior decision which held:
When a testator’s will clearly reveals a general plan or intention as
to the disposition of his property, and a situation arises that is not within the
express language of the will, such general plan may be regarded as existing
but incompletely expressed, and the failure to provide for the situation
inadvertent rather than intentional, and a gift may be implied for the
purpose of completing the general plan.
Casey v. Gallagher, 11 Ohio St.2d 42, 43, 227 N.E.2d 801 (1967), paragraph five of the
syllabus.
{¶ 15} As in Becvar, the devise at issue provides the designation “per stirpes” but
fails to provide the class of persons who will take under the clause. Appellant contends
that, unlike Becvar, there was no plan or scheme of distribution that the court could rely
on to glean Ronald’s intent.
6. {¶ 16} In granting appellees’ motion for summary judgment, the trial court
determined:
Ronald provided for a bequest to Erica per stirpes, but did not
expressly designate the class of persons who were to take in the event she
did not survive him. The anti-lapse statute, R.C. 2107.52(B), does not
apply because Erica is a stepgrandchild of Ronald, not a stepchild. From
the content of his will in its entirety, however, and using the rules of
construction set forth above, this Court concludes that Ronald intended a
secondary gift to go to Erica’s heirs if she predeceased him. Not only does
his will contain no other bequests, Ronald’s will makes absolutely no
mention of any other person or class of persons, including any of his own
lineal descendants. Erica was to have received all of his estate and to be the
fiduciary of that estate. He used the strong, unequivocal language of “to
my beloved step-granddaughter, Erica K. Hemsath-Anderson, in fee simple,
absolutely and forever, per stirpes” in making his bequest to her. His estate
plan was clear.
{¶ 17} Independently reviewing the language employed in the will and the
relevant case law, we cannot say the court’s decision was in error. The language used in
the devise was absolute and unequivocal: to my “beloved step-granddaughter * * *
absolutely and forever, per stirpes.” The intent is further evidenced by the entirety of the
7. gift. To ignore the inclusion of the “per stirpes” designation would thwart Ronald’s
intent in making the bequest.
{¶ 18} Based on the foregoing, we find that no genuine issue of fact remains and
the trial court did not err in granting summary judgment to appellees. Appellant’s first
and second assignments of error are not well-taken.
{¶ 19} On consideration whereof, we find that substantial justice was done the
party complaining and the judgment of the Huron County Court of Common Pleas,
Probate Division, is affirmed. Pursuant to App.R. 24, appellant is ordered to pay the
costs of this appeal.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________ JUDGE Arlene Singer, J. _______________________________ Gene A. Zmuda, J. JUDGE CONCUR. _______________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
8.