[Cite as Gallagher v. Estate of Stepfield, 2013-Ohio-3113.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
PATRICIA S. GALLAGHER JUDGES: Hon. W. Scott Gwin, P.J. Plaintiff-Appellant Hon. William B. Hoffman, J. Hon. Patricia A. Delaney, J. -vs- Case No. 2012CA00191 ESTATE OF JEANNE STEPFIELD
Defendant-Appellee OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Probate Division, Case No. 201837
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 15, 2013
APPEARANCES:
For Defendant-Appellee For Plaintiff-Appellant
JOHN D. CLARK CHARLES A. KENNEDY ALETHA M. CARVER Kennedy, Cicconetti, Knowlton Krugliak, Wilkins, Griffiths & Buytendyk, L.P.A. & Dougherty Co., L.P.A. 558 North Market Street 4775 Munson Street, N.W. Wooster, Ohio 44691 P.O. Box 36963 Canton, Ohio 44735-6963 Stark County, Case No. 2012CA00191 2
Hoffman, J.
{¶1} Plaintiff-appellant Patricia S. Gallagher appeals the June 22, 2012
Judgment Entry entered by the Stark County Court of Common Pleas, Probate Division,
which overruled her Objections to Apportionment of Estate Taxes and Exceptions to
Account. Defendant-appellee is Sandra S. Brockman, Executor of the Estate of Jeanne
Stepfield.
STATEMENT OF THE FACTS AND CASE
{¶2} Jeanne P. Stepfield ("Decedent"), mother of Appellant Patricia S.
Gallagher ("Gallagher") and Appellee Sandra S. Brockman ("Brockman"), died on
November 29, 2007. Decedent's Will was admitted to probate on December 12, 2007.
The probate court appointed Brockman as Executrix on January 28, 2008.
{¶3} Decedent's Will provided, in relevant part:
One Bequest/Devise to Daughter
I do give and bequeath any and all of the shares of stock which I
may own at the time of my decease in Brenn-Field Nursing Center, Inc.,
hereby intending to give and bequeath all my right, title and interest in
facility known as Brenn-Field Nursing Center, Inc. to my daughter Sandra
a. [sic] Brockman to be hers absolutely and forever.
I do give, devise and bequest to my daughter, Sandra A.
Brockman, any and all real estate which I may own at the time of my
decease located in both the City of Orrville and in the Township of Green,
Wayne County, Ohio to be hers absolutely and forever specifically
including by not limited to the following described real estate or any part Stark County, Case No. 2012CA00191 3
thereof remain in the even [sic] any portion of said real estate has been
sold prior to my decease:
A. 13.471 acres located in * * *Township of Green, Wayne county
[sic], Ohio together with all structures and improvements thereon, if any,
subject to any encumbrances due thereon.
B. 46.5501 acres located in* * * Township of Green, Wayne
County, Ohio together with all structures and improvements thereon, if
any, subject to any encumbrances due thereon.
C. Lot Nos. 2628 and 2629 located in [sic] Lynn Drive in the City of
Orrville, Wayne County, Ohio together with all structures and
improvements thereon, if any, subject to any encumbrances due thereon.
D. Lot Nos. 2626 and 2627 located on Lynn Drive in the City of
Orrville, Wayne County, Ohio together with all structures and
improvements thereon, subject to any encumbrances due thereon.
E. Lot No. 2542 located on Lynn Drive in the City of Orrville, Wayne
County, Ohio together with all structures and improvements thereon,
In making this bequest/devise, I hereby direct that all state and
federal taxes together with costs of administration attributable to same
shall be a charge against said bequest/devise. The same shall also be
the beneficiary of any legislation granting tax relief to any family-owned
business. Stark County, Case No. 2012CA00191 4
TWO. Residue
All the rest, residue and remainder of my property, real and
personal, of every kinds [sic], nature and description wheresoever situated
and whenever by me acquired, of which I may die seized or possessed,
including any property which I may have the power to dispose of by will, I
do give, devise and bequeath to my daughters Sandra S. Brockman and
Patricia S. Gallagher, share and share alike, to be theirs absolutely and
forever.
{¶4} Brockman filed the final account on December 23, 2011, which valued
Decedent’s gross estate at $9,111,356.00 for federal estate tax purposes. Gallagher's
portion of the estate was valued at $904,808.96. Brockman filed a correspondence on
January 9, 2012, which itemized the expenses, including a federal tax of $3,036,802,
and a state tax of $576,252.13. Brockman assessed 10% of the federal and state taxes
against Gallagher's share of the estate.
{¶5} On January 20, 2012, Gallagher filed exceptions to the Ohio state tax
return. On January 24, 2012, Gallagher also filed exceptions to the final account, again
raising the apportionment issue. In Exception No. 1, which is the gravaman of this
appeal, Gallagher asserted she "[was] not responsible for Federal and State of Ohio
Estate Taxes or any part thereof: Executor assessed ten percent (10%) of such taxes to
Patricia S. Gallagher's share of the estate in error."
{¶6} Gallagher also filed a concealment action against Brockman on April 27,
2012. The concealment action is not relevant to this appeal. Stark County, Case No. 2012CA00191 5
{¶7} The probate court ordered the parties to brief their respective positions on
the apportionment issue. Via Judgment Entry filed June 22, 2012, the trial court
overruled Gallagher’s Exception No. 1 to the Final Account. The trial court found, based
upon the language in the specific bequest, Brockman was required to pay 100% of any
tax associated with the property left to her under the specific bequest. The trial court
determined, because the Will provided Brockman and Gallagher were to share equally
in the residuary estate, pursuant to R.C. 2113.86(B), each sister was required to pay
50% of any tax associated with the property under the residuary clause. The trial court
withheld ruling on Gallagher’s remaining Exceptions pending the resolution of the
concealment action.
{¶8} It is from the June 22, 2012 Judgment Entry Gallagher appeals, assigning
as error:
{¶9} “I. THE PROBATE COURT ERRED AS A MATTER OF LAW WHEN IT
HELD THAT THE FEDERAL AND STATE OF OHIO ESTATE TAXES WERE TO BE
APPORTIONED 90% - 10% AGAINST THE CLEAR INTENT OF TESTATOR
EXPRESSED IN THE WILL.”
I
{¶10} R.C. 2113.86, which governs the apportionment of federal and state
estate taxes, provides, in relevant part:
(A) Unless a will or another governing instrument otherwise
provides, and except as otherwise provided in this section, a tax shall be
apportioned equitably in accordance with the provisions of this section Stark County, Case No. 2012CA00191 6
among all persons interested in an estate in proportion to the value of the
interest of each person as determined for estate tax purposes.
(B) Except as otherwise provided in this division, any tax that is
apportioned against a gift made in a clause of a will other than a residuary
clause or in a provision of an inter vivos trust other than a residuary
provision, shall be reapportioned to the residue of the estate or trust. It
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as Gallagher v. Estate of Stepfield, 2013-Ohio-3113.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
PATRICIA S. GALLAGHER JUDGES: Hon. W. Scott Gwin, P.J. Plaintiff-Appellant Hon. William B. Hoffman, J. Hon. Patricia A. Delaney, J. -vs- Case No. 2012CA00191 ESTATE OF JEANNE STEPFIELD
Defendant-Appellee OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Probate Division, Case No. 201837
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 15, 2013
APPEARANCES:
For Defendant-Appellee For Plaintiff-Appellant
JOHN D. CLARK CHARLES A. KENNEDY ALETHA M. CARVER Kennedy, Cicconetti, Knowlton Krugliak, Wilkins, Griffiths & Buytendyk, L.P.A. & Dougherty Co., L.P.A. 558 North Market Street 4775 Munson Street, N.W. Wooster, Ohio 44691 P.O. Box 36963 Canton, Ohio 44735-6963 Stark County, Case No. 2012CA00191 2
Hoffman, J.
{¶1} Plaintiff-appellant Patricia S. Gallagher appeals the June 22, 2012
Judgment Entry entered by the Stark County Court of Common Pleas, Probate Division,
which overruled her Objections to Apportionment of Estate Taxes and Exceptions to
Account. Defendant-appellee is Sandra S. Brockman, Executor of the Estate of Jeanne
Stepfield.
STATEMENT OF THE FACTS AND CASE
{¶2} Jeanne P. Stepfield ("Decedent"), mother of Appellant Patricia S.
Gallagher ("Gallagher") and Appellee Sandra S. Brockman ("Brockman"), died on
November 29, 2007. Decedent's Will was admitted to probate on December 12, 2007.
The probate court appointed Brockman as Executrix on January 28, 2008.
{¶3} Decedent's Will provided, in relevant part:
One Bequest/Devise to Daughter
I do give and bequeath any and all of the shares of stock which I
may own at the time of my decease in Brenn-Field Nursing Center, Inc.,
hereby intending to give and bequeath all my right, title and interest in
facility known as Brenn-Field Nursing Center, Inc. to my daughter Sandra
a. [sic] Brockman to be hers absolutely and forever.
I do give, devise and bequest to my daughter, Sandra A.
Brockman, any and all real estate which I may own at the time of my
decease located in both the City of Orrville and in the Township of Green,
Wayne County, Ohio to be hers absolutely and forever specifically
including by not limited to the following described real estate or any part Stark County, Case No. 2012CA00191 3
thereof remain in the even [sic] any portion of said real estate has been
sold prior to my decease:
A. 13.471 acres located in * * *Township of Green, Wayne county
[sic], Ohio together with all structures and improvements thereon, if any,
subject to any encumbrances due thereon.
B. 46.5501 acres located in* * * Township of Green, Wayne
County, Ohio together with all structures and improvements thereon, if
any, subject to any encumbrances due thereon.
C. Lot Nos. 2628 and 2629 located in [sic] Lynn Drive in the City of
Orrville, Wayne County, Ohio together with all structures and
improvements thereon, if any, subject to any encumbrances due thereon.
D. Lot Nos. 2626 and 2627 located on Lynn Drive in the City of
Orrville, Wayne County, Ohio together with all structures and
improvements thereon, subject to any encumbrances due thereon.
E. Lot No. 2542 located on Lynn Drive in the City of Orrville, Wayne
County, Ohio together with all structures and improvements thereon,
In making this bequest/devise, I hereby direct that all state and
federal taxes together with costs of administration attributable to same
shall be a charge against said bequest/devise. The same shall also be
the beneficiary of any legislation granting tax relief to any family-owned
business. Stark County, Case No. 2012CA00191 4
TWO. Residue
All the rest, residue and remainder of my property, real and
personal, of every kinds [sic], nature and description wheresoever situated
and whenever by me acquired, of which I may die seized or possessed,
including any property which I may have the power to dispose of by will, I
do give, devise and bequeath to my daughters Sandra S. Brockman and
Patricia S. Gallagher, share and share alike, to be theirs absolutely and
forever.
{¶4} Brockman filed the final account on December 23, 2011, which valued
Decedent’s gross estate at $9,111,356.00 for federal estate tax purposes. Gallagher's
portion of the estate was valued at $904,808.96. Brockman filed a correspondence on
January 9, 2012, which itemized the expenses, including a federal tax of $3,036,802,
and a state tax of $576,252.13. Brockman assessed 10% of the federal and state taxes
against Gallagher's share of the estate.
{¶5} On January 20, 2012, Gallagher filed exceptions to the Ohio state tax
return. On January 24, 2012, Gallagher also filed exceptions to the final account, again
raising the apportionment issue. In Exception No. 1, which is the gravaman of this
appeal, Gallagher asserted she "[was] not responsible for Federal and State of Ohio
Estate Taxes or any part thereof: Executor assessed ten percent (10%) of such taxes to
Patricia S. Gallagher's share of the estate in error."
{¶6} Gallagher also filed a concealment action against Brockman on April 27,
2012. The concealment action is not relevant to this appeal. Stark County, Case No. 2012CA00191 5
{¶7} The probate court ordered the parties to brief their respective positions on
the apportionment issue. Via Judgment Entry filed June 22, 2012, the trial court
overruled Gallagher’s Exception No. 1 to the Final Account. The trial court found, based
upon the language in the specific bequest, Brockman was required to pay 100% of any
tax associated with the property left to her under the specific bequest. The trial court
determined, because the Will provided Brockman and Gallagher were to share equally
in the residuary estate, pursuant to R.C. 2113.86(B), each sister was required to pay
50% of any tax associated with the property under the residuary clause. The trial court
withheld ruling on Gallagher’s remaining Exceptions pending the resolution of the
concealment action.
{¶8} It is from the June 22, 2012 Judgment Entry Gallagher appeals, assigning
as error:
{¶9} “I. THE PROBATE COURT ERRED AS A MATTER OF LAW WHEN IT
HELD THAT THE FEDERAL AND STATE OF OHIO ESTATE TAXES WERE TO BE
APPORTIONED 90% - 10% AGAINST THE CLEAR INTENT OF TESTATOR
EXPRESSED IN THE WILL.”
I
{¶10} R.C. 2113.86, which governs the apportionment of federal and state
estate taxes, provides, in relevant part:
(A) Unless a will or another governing instrument otherwise
provides, and except as otherwise provided in this section, a tax shall be
apportioned equitably in accordance with the provisions of this section Stark County, Case No. 2012CA00191 6
among all persons interested in an estate in proportion to the value of the
interest of each person as determined for estate tax purposes.
(B) Except as otherwise provided in this division, any tax that is
apportioned against a gift made in a clause of a will other than a residuary
clause or in a provision of an inter vivos trust other than a residuary
provision, shall be reapportioned to the residue of the estate or trust. It
shall be charged in the same manner as a general administration
expense.
{¶11} Any intent on the part of a testator or settlor that estate taxes are to be
paid in a manner contrary to the apportionment method set forth in R.C. 2113.86 must
be clearly expressed in the will. PNC Bank, Ohio, N.A. v. Roy, 152 Ohio App.3d 439,
2003-Ohio-1542, 788 N.E.2d 650. This contrary intent “must be clear, specific, and
unambiguous.” Matthews v. Swallen, 1st App. No. C–940443, 1995 WL 621305. The
settlor or testator's intent is determined by the language of the testamentary documents.
Carr v. Stradley, 52 Ohio St.2d 220, 6 O.O.3d 469, 371 N.E.2d 540 (1977).
{¶12} In construing the provisions of a will, “[e]very phrase must be given its
ordinary meaning, and the courts cannot add to or detract from the language used by
the testatrix.” Wittenberg Univ. v. Waterworth, 13 Ohio App.3d 452, 454 (1984).
{¶13} In the Will, Decedent made a specific bequest to Brockman. The specific
bequest provided:
In making this bequest/devise, I hereby direct that all state and
federal taxes together with costs of administration attributable to same
shall be a charge against said bequest/devise. The same shall also be Stark County, Case No. 2012CA00191 7
the beneficiary of any legislation granting tax relief to any family-owned
business.
{¶14} We find the placement of this instruction within the provision for the
specific bequest as well as the language used therein evidence Decedent’s intent
Brockman pay all of the taxes and costs of administration associated with the specific
bequest from the monies she received from the specific bequest. The words “[i]n
making this bequest/devise, I hereby direct” indicates the language which follows
pertains to the specific bequest to Brockman. The use of the qualifier, “attributable to
the same”, provides guidance as to what is to be paid and from where such is to be
paid. We agree with the trial court Decedent expressly intended for all state and federal
taxes and the costs of administration associated with the specific bequest be charged
against the specific bequest to Brockman.
{¶15} Conversely, the language set forth in the specific bequest does not affect
any state and federal estate taxes owed based upon the value of the assets passing
under the residuary estate as well as the costs of administration relative thereto. Those
taxes and costs are to be paid by the beneficiaries of the residuary estate in proportion
to their distribution. The Will provides Brockman and Gallagher equally share the
residuary estate; therefore, the sisters are equally responsible for the taxes and costs
associated with the residuary estate.
{¶16} Based upon the foregoing, we find the trial court did not err in its
apportionment of taxes 90% to Brockman and 10% to Gallagher, as the order conforms
to the wishes of Decedent as stated in the Will. Stark County, Case No. 2012CA00191 8
{¶17} Gallagher’s sole assignment of error is overruled.
{¶18} The judgment of the Stark County Court of Common Pleas, Probate
Division is affirmed.
By: Hoffman, J.
Gwin, P.J. and
Delaney, J. concur
___________________________________ HON. WILLIAM B. HOFFMAN
___________________________________ HON. W. SCOTT GWIN
___________________________________ HON. PATRICIA A. DELANEY Stark County, Case No. 2012CA00191 9
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
PATRICIA S. GALLAGHER : : Plaintiff-Appellant : : -vs- : JUDGMENT ENTRY : ESTATE OF JEANNE STEPFIELD : : Defendant-Appellee : Case No. 2012CA00191
For the reasons stated in our accompanying Opinion, the judgment by the Stark
County Court of Common Pleas, Probate Division is affirmed. Costs to Appellant.
___________________________________ HON. PATRICIA A. DELANEY