Ohio National Bank v. Bright

38 N.E.2d 76, 34 Ohio Law. Abs. 453, 1941 Ohio App. LEXIS 959

• Court: Ohio Court of Appeals
• Decided: June 18, 1941
• Docket: No 3312
• Status: Published

Opinions

OPINION

By BARNES, J.

This is an appeal on questions of law from a judgment of the Probate Court in favor of defendants-appellees, Martha S. Pittman, Tom Pittman and Cleone Hawkins upon the construction of the will of George W. Bright, deceased.

That portion of the will of George W. Bright immediately under consideration is Item XI, as follows:

“I give, devise and bequeath to my beloved foster daughter, Helen M. Quinn, who has been so faithful to me and my family, one-third (1/3) of my entire estate whether real, personal and mixed, and wheresoever situated which I may own or have the right to dispose of at the time of my decease, which said bequest I direct my Executors and Trustees to pay to the said Helen M. Quinn the sum of Two Thousand Dollars ($2000.00) annually, to be paid in quarterly payments out of the income and principal from said one-third (1/3) of my entire Estate. If the income from one-third (1/3) of my entire estate does, not produce the sum of Two Thousand Dollars ($2000.00) annually, then I direct my Executors and Trustees to pay to the said Helen M. Quinn from the principal of said one-third (1/3) of my estate so bequeathed to the said Helen M. Quinn such an amount as will make her annual payment the sum of Two Thousand Dollars ($2000.00) for and during her natural life. After the death of the said Helen M. Quinn, I direct my Executors and Trustees to pay the unconsumed portion of this one-third (1/3) of my entire estate, if any, to my heirs share and share alike.”

George W. Bright died January 28, 1928. leaving surviving,' as his closest relative, Mary E. Pittman, a sister of the whole blood who died on September 18, 1939, leaving Tom L. Pittman, Martha Pittman and Mary Pittman Orr, her legál representatives and heirs at law and Mary Pittman Orr died intestate September 28, 1939, leaving Cleone Hawkins, her legal representative and heir at law. Other relatives remaining at the death of testator were heirs or personal representatives of brothers or sisters of the half blood.

The factual situation was presented in the trial court upon statements of fact agreed to by all the parties in all particulars except one, No. 6, to which Elsie Bright does not agree, and is so presented here. Stipulation No. 6- is that that portion of the estate under consideration in this action came to George W. Bright by purchase.

At the time of the death of the testator, §8574 GC, controlled the descént of real estate' which came not by descent, devise or deed of gift and provided in part,

“(3) If there are no such parents, " * *. the estate shall pass to the brothers and sisters of the intestate of the whole blood and their legal representatives.

(4) If there are no brothers or sisters of intestate of the whole blood, or their legal representatives, the estate shall pass to the brothers and sisters of the half blood, and their legal representatives.”

Sec. 8578 GC,-controlled the distribution of personal property and provided,

“When a person died intestate and leaves personal property, it shall be distributed in the order and manner following: * “ ■*

(3) * * * If such intestate leaves no parents surviving him, all of such personal. property shall be distributed to the brothers and sisters of the whole blood or their legal representatives, or if there be no brothers or sisters of the whole blood or their legal representatives, then to the brothers and sisters of the half blood or their legal representatives.”

It is stipulated that Helen M. Quinn died January 29, 1940, at which, time §10503-4 GC (6), defining the course of descent and distribution, provided:

“If there be no spouse, no children or their lineal descendants, and no parents surviving, to the brothers and sisters, whether of the whole or the half blooo of the intestate or their lineal descendants per stirpes.”

The time of the vesting of- the estate remaining at the death of Helen M. Quinn is decisive of the respective rights of those who claim as legal representatives of the sister of the whole blood and the heirs or personal representatives of the brothers or sisters of the half blood. Did the remainder estate vest upon the death of the testator or upon the death of Helen M. Quinn?

The trial court held that the re-, mainder estate vested upon the death of the testator and passed to Mary E. Pittman, a sister of testator of ' the whole blood, as his heir at law.

We are favored with the decisions of the Probate Judge, the first of which passes generally upon the action to determine heirship, the second, particularly upon the claim of Elsie Bright, appellant, the widow of Walter S. Bright, who died on April 12, 1932, the son of Samuel Bright, a half brother of George W. Bright, deceased:

It is unnecessary to a determination of the question before us to define with particularity the estate which Helen M. Quinn took under Item XI, whether a life estate in one-third of the entire estate of the testator to the extent of $2000.00 income annually, or whether a charge of $2000.00 annually upon one-third of the entire estate of the testator, so long as Helen M. Quinn lived.

• The obvious purpose of the testator as to Helen M. Quinn was to assure her an annuity for life of $2000.00 per year to be produced by income, if sufficient, otherwise from the corpus of a full one-third of the estate. It was possible under the terms of the Item that all of the one-third of the estate would .be consumed and if that occurred, Helen M. Qumn had the equivalent of a fee in one-third of the estate.

Appellants m support of their contention that the remainder estate provided in Item XI is contingent in char.acter, cite, among others, the following cases:

Richey v Johnson, 30 Oh St 288.

Hamilton v Rodgers, 38 Oh St 242,

Wells v Pape, 31 Abs 102.

Holt v Miller, 26 Abs 46; and

Barr v Denney, 79 Oh St 358.

Contra, counsel for appellee, among others, cite the following cases:

Linton v Laycock, 33 Oh St 128.

Bolton v Ohio National Bank, 50 Oh St 290.

MinYoung v MinYoung, 47 Oh St 501.

Carnes v McAfee, 11 N. P. (N.S.) 517.

Lisle v Miller, 21 C. C. N.S. 317.

16 O. Jur. 483-488.

Tax Commission v Oswald, 109 Oh St 36.

While we have examined each and all of the cases cited, we do not deem it necessary to quote from all the listed cases. Nothing short of reading the cases m their entirety will be of any particular benefit. In our judgment the case nearest in point in its facts is that of Barr v Denney, 79 Oh St 358, supra.

We go further and say that this case of Barr v Denney is on all fours with the instant case, and therefore determinative of what should be the proper construction of the will of the decedent George W. Bright. The force of the statement as to the application of this cited case may best be shown by setting out in full syllabi 2 and 3:

“Where a testator devises and bequeathes the whole of his estate, real and personal, to his wife during her natural life, except certain amounts to equalize gifts among his children, and then without any express or implied legacy, except as contained in the direction to his executor to convert into personalty and distribute, makes the following dispositive clause, viz.: ‘After the death of my wife I desire that the whole of my property, both real and personal, be sold by my executor and after expenses arc paid to distribute equally to my legal heirs/ the rule that a bequest in the form of a direction to pay, or to pay and divide at a future period vests immediately, if the payment be postponed for the convenience of the fund or estate, or merely to let in some other interest, does not apply. Linton v Laycock. 33 Oh St 128, distinguished. Richey, Exr. v Johnson, 30 Oh St 288; Sinton v Boyd, 19 Oh St 30, and Hamilton v Rodgers, 38 Oh St 242, approved and followed.”

“3. In such case the direction to the executor to pay or to distribute to the testator’s ‘iegal hens’ confers a contingent interest, which does not vest until the period of distribution; and the direction ‘to distribute equally to my legal heirs’ is equivalent to a direction to make distribution in accordance with the statutes providing for descent and distribution.”

So far as we are able to find the case of Barr v Denney has never been questioned since its decision m 1909, and still remains the law of Ohio under similar • facts.

We recognize the principle that courts have formulated certain rules as aid in the construction of wills, but these rules have no application where the intent of the testator is ascertainable from the clear language of the will itself.

For instance, while the law favors the vesting of estates at the earliest time possible, it would not be proper to force a construction so as to accomplish an early vesting where the clear language of the testator indicated a different intent.

We again call attention to the last paragraph of Item XI of the will which reads as follows:

“At the death of said Helen M. Quinn I direct my executors and trustees to pay the unconsumed portion of this one-third (1/3) of my entire estate, if any, to my heirs, share and share alike.”

This is the only part of the will wherein any disposition of this unconsumed portion of the one-third is made.

The decedent, George W. Bright, at the time of his death left a very large estate, most of which was in personal property. He gave to his trustees very broad power as evidenced by Item XV of his will:

“And I do further give to my executors and trustees full power to sell and to convey at such prices, on such terms, and in such manner, any or all my real or personal property which they may deem for the best interests of my estate or the beneficiaries hereof, and generally so to handle and to deal with each and every part and parcel of my estate, real and personal, the same as 2 might do if living.”

From the date of the qualification of the trustees the title, control and management of the entire one-third of decedent’s property was vested in the trustees.

Under the provisions of the will the trustees were to pay from the income to the foster daughter the sum of $2000.00 annually with the further direction that in the event the income was not sufficient the balance would be taken from the corpus; that under the language of this will the authorities adequately support the principle that the corpus was vested in the trustee. Citing Boyd v Talvert, 12 O. 212; Sinton v Boyd, 19 Oh St 30; Barr v Denney, 79 Oh St 358.

It is argued that the instant case is to be distinguished from the case of Barr v Denney due to the following language as contained in the Barr will:

“After the death of my wife I desire that the whole of my property, both real and personal, be sold by my executor and after expenses are paid to ¡distribute equally to my legal heirs.”

We are unable to see that the provisions in the Barr will providing in substance that after the termination of the life estate the property, both real and personal, should be sold and divided, is different in substance from the Bright will, where the property is at all times vested with the trustee with power to sell and direction to distribute at the termination of the life estate. This is very clearly announced in the 2nd syllabus in the case of Barr v Denney, supra.

The reading of the Bright will in its entirety lends aid to the construction to which we are committed.

Special attention is called to Item II where the testator made a special bequest to his sister, Mary E. Pittman in .the sum of $5000.00, “if she be living; if she is not living at the time of my decease, then I direct my executors and trustees to pay to her heirs the sum of $5000.00.” If the testator had intended the sister or her heirs to receive the remainder after the termination of the life estate, why did he not use the identical language that we find in Item II? It seems to us that the testator had in mind the uncertainty as to the time for distribution, and the changing conditions through death, and hence made the provisions that such distribution would be made to his heirs whoever they might be.

The fact that the statute is changed bringing in as heirs half-brothers, half-sisters and their descendants can make no difference m the proper construction. Our court had this question under consideration in the case of Hummell v Davis, 22 Abs 49:

“A testator will be presumed to know that the statutes of descent and distribution could be altered from time to time and that when he used the word ‘heirs’ in his will he described a class that would be designated and determined by the legislature.”

The case of Smith v Hunter, 86 Oh St 106, was cited by us as authority for our pronouncement in the Hummell case, supra.

In our judgment the case of Tax Commission v Oswald, 109 Oh St 36, on which authority the appellees place major reliance is readily distinguishable from the instant case.

• In the Oswald case there was no uncertainty as to the persons who were to receive the remainder after the termination of a life estate given to the widow. The will specifically provided that the remainder should go to named legatees. Under this definite direction the court could very properly apply the principle that an estate- was vested and only possession was delayed. In our judgment the .will-should be construed through which, the distribution would be made to the heirs of the decedent, George W. Bright, as they existed at the time of the death of Helen M. Quinn. Under this situation Elsie Bright would have no interest in the estate.

The finding and judgment of the trial court will be reversed.

Entry may be drawn in accordance with this opinion,

GEIGER, PJ., concurs. HORNBECK, J., dissents.