Day v. Brooks

224 N.E.2d 557, 10 Ohio Misc. 273, 39 Ohio Op. 2d 441, 1967 Ohio Misc. LEXIS 345
CourtCuyahoga County Probate Court
DecidedMarch 27, 1967
DocketNo. 630969
StatusPublished
Cited by12 cases

This text of 224 N.E.2d 557 (Day v. Brooks) is published on Counsel Stack Legal Research, covering Cuyahoga County Probate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Day v. Brooks, 224 N.E.2d 557, 10 Ohio Misc. 273, 39 Ohio Op. 2d 441, 1967 Ohio Misc. LEXIS 345 (Ohio Super. Ct. 1967).

Opinion

ANDREWS, Chief Referee.

This action is brought by the administrator de bonis non with the will annexed of the estate of Mrs. Margaret Jane G-roh, deceased. Plaintiff asks for a construction of certain parts of the will and for a declaratory judgment and directions.

The testatrix died on June 29', 1961, and the will was admitted to probate on August 8, 1961. The petition was filed on September 21, 1962, and the case was referred to me on September 14, 1966.

Plaintiff seeks a determination by this court on six specific matters, each dealing with a particular item of the will. Because these matters are unrelated, it will be simpler to take them up separately without any prior summary of the will as a whole.

Of the large number of defendants, only nine have filed answers. As to the others, the allegations of the petition are to be taken as true. Section 2309.27, Revised Code.

Counsel for the nine answering defendants have expressed their willingness to submit the case to me -without the introduction of evidence or a formal stipulation, upon the basis that the [275]*275facts alleged in the petition, most of which are matters of record, are true.

I

The first question relates to Item III of the will, which reads:

“I give and bequeath to my brother, "Walter Day, or in the event of his death prior to mine, or prior to that of his daughter, Arlene Day, then and in that event, to Catherine Carroll, the sum of Five Hundred Dollars ($500.00) in trust for the use and benefit of Arlene Day, daughter of Walter Day, during her lifetime ; said sum and all income therefrom to be used for the care, maintenance, and support of said Arlene Day. Upon the death of said Arlene Day, if any portion of said trust fund then remains on hand, I give and bequeath the same to Walter Day, Father of Arlene Day.”

Walter Day predeceased the testatrix, and his only surviving issue is his daughter, Arlene Day, an incompetent, but not under legal guardianship. Arlene Day is a patient at the Orient State Institute, Orient, Ohio.

Plaintiff wants to know whether the bequest of $500.00 should be paid to Catherine Carroll as trustee, for the use and benefit of Arlene Day, and he wants me to determine the purpose of the trust and to whom the residue, if any, of the trust estate should be paid after Arlene Day’s death.

The language of Item III leaves no doubt about the intention of the testatrix to create a trust. See 5 Bowe-Parker, Page on Wills, Section 40.4, pp. 109-110 (1962). And the language as to purpose is definite enough to sustain the trust against a charge of indefiniteness, uncertainty, or vagueness. See 53 Ohio Jurisprudence 2d, Trusts, Section 68; Homer v. Wullenweber (1951), 89 Ohio App. 255, 45 Ohio Opinions 481, 101 N. E. 2d 229. The bequest should be paid to the designated trustee for the use and benefit of Arlene Day.

In asking us to determine the purpose of the trust, plaintiff evidently wants us to interpret the phrase, “care, maintenance, and support.” The meaning is well expressed in the headnote to a Court of Appeals decision, which I quote:

“The legal sense and meaning of the testator’s words ‘care, maintenance and support’ is the same as the understanding of [276]*276them in everyday life, with the single qualification that the recipient in each particular instance is to receive all those necessities that are required to sustain life in comfort in accordance with the beneficiary’s station in life.” Hetzler v. Kah (1945), 43 Ohio Law Abs. 383, 65 N. E. 2d 515. See 56 Ohio Jurisprudence 2d, Wills, Section 801, p. 312.

And the following quotation regarding the duty of a guardian to provide maintenance for his ward under certain circumstances throws further light on the question.

“ ‘ Maintenance ’ in this respect means all necessary and requisite service conducive to the physical, moral, or mental well-being of the ward. This includes care, support, and nursing and medical services when necessary.” 26 Ohio Jurisprudence 2d, Guardian and Ward, Section 93, p. 438.

In the case of In re Vanderbilt's Estate (Surr. Ct. 1927), 223 N. Y. Supp. 314, relating also to guardian and ward, the court stated, at page 316:

“* * * The word ‘support’ comprehends ‘anything requisite to the housing, feeding, clothing, health, proper recreation, vacation, traveling expense,’ or other proper cognate purposes included within the scope of the word. ’ ’

The same meaning was given to the phrase, “care, support, and maintenance,” used in a will, the court referring to the Vanderbilt decision. In re Becker's Will (Surr. Ct. 1941), 31 N. Y. S. 2d 482.

In my opinion the above authorities adequately show the purpose of the trust as manifested by the words “care, maintenance, and support.”

Although in all probability the trust fund, being so small in amount, will be exhausted in a short time, it is necessary that we answer plaintiff’s question about the disposition of any part of the fund which may, by chance, remain after Arlene Day’s death.

It will be recalled that Walter Day, Arlene’s father, is named as the remainderman of anything left in the trust fund after Arlene’s death. Had Walter Day survived the testatrix, he would have owned a vested remainder in the fund, subject to defeasance by the expenditure of the fund for Arlene’s needs. 2 Restatement, Property, Section 157, Comments, o, p, q, r, and Illustrations 14 and 16, However, as we know, Walter Day pre[277]*277deceased the testatrix. Inasmuch as Walter Day was her brother and was survived by Arlene Day, his only issue, the so-called antilapse statute, Section 2107.52, Revised Code, applies. I quote the pertinent part.

“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.” (Emphasis added.)

Inasmuch as “the devisee,” Walter Day, would have taken a vested remainder, subject to defeasance, his daughter Arlene takes the same estate. Upon her death, therefore, any residue of the trust fund becomes a part of Arlene Day’s estate, and is payable to the executor or administrator thereof.

It is possible that the testatrix did not contemplate or desire this rather peculiar result, — peculiar in that Arlene can never receive her vested remainder in possession and enjoyment. But strange as the result may be, it seems to follow from the wording of the statute, and there is nothing in Item III of the will giving the slightest hint of any contrary intent.

When the testatrix died, Arlene became at one and the same time the life beneficiary of the trust fund and the remainderman of anything left in it after her death. I do not think that this constitutes a merger, in which the trust becomes swallowed up by the remainder. Under modern law, the question of whether or not there will be a merger of a lesser and greater estate under circumstances which might permit such a merger is largely a matter of intention and substantial justice. See 28 American Jurisprudence 2d, Estates, Sections 374-382.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In re Estate of Gaskill
2019 Ohio 4936 (Ohio Court of Appeals, 2019)
Belardo v. Belardo
930 N.E.2d 862 (Ohio Court of Appeals, 2010)
Matter of Estate of Rehwinkel
862 P.2d 639 (Court of Appeals of Washington, 1993)
Colopy v. Wilson
548 N.E.2d 1322 (Ohio Court of Appeals, 1989)
Slattery v. Kelsch
734 S.W.2d 813 (Court of Appeals of Kentucky, 1987)
In Re Estate of Stroble
636 P.2d 236 (Court of Appeals of Kansas, 1981)
Atchison v. Hall
433 F.2d 479 (D.C. Circuit, 1970)
Brown v. Schaffer
252 N.E.2d 142 (Indiana Court of Appeals, 1969)
Shalkhauser v. Beach
233 N.E.2d 527 (Cuyahoga County Probate Court, 1968)

Cite This Page — Counsel Stack

Bluebook (online)
224 N.E.2d 557, 10 Ohio Misc. 273, 39 Ohio Op. 2d 441, 1967 Ohio Misc. LEXIS 345, Counsel Stack Legal Research, https://law.counselstack.com/opinion/day-v-brooks-ohprobctcuyahog-1967.