Polen v. Baker - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as Polen v. Baker, 92 Ohio St.3d 563, 2001-Ohio-1286]

POLEN, EXR., APPELLEE, v. BAKER ET AL., APPELLANTS.
[Cite as Polen v. Baker (2001), 92 Ohio St.3d 563.]
Probate -- Will construction -- Only surviving beneficiaries named in a will's
residuary clause shall receive equal shares of the residuary estate.
(No. 00-1274 -- Submitted February 28, 2001 -- Decided August 22, 2001.)
APPEAL from the Court of Appeals for Pickaway County, No. 99 CA 34.
__________________

COOK, J. This case presents the issue of whether only surviving
beneficiaries named in a will's residuary clause should receive equal shares of the
residuary estate, or whether the children of a beneficiary who also was named in
the residuary clause but who predeceased the testator should inherit his share. For
the reasons that follow, we find that only the surviving named beneficiaries
should share in the residuary estate.
I

Following the death of Frances P. Haines, appellee, Dixie Lee Polen, the
executor of Haines's estate, brought a will construction action in the Pickaway
County Common Pleas Court, Probate Division. Polen asked the court to
construe the will's residuary clause. The will directed Polen "to distribute the net
proceeds [from the residue of the estate] to Dorothy Landrum, Dixie Lee Polen,
Dorothy N. Franklin, Ercil Cutler and George Baker, equally share and share
alike, the same to be theirs absolutely, or to the survivors thereof." (Emphasis
added.) George Baker predeceased Haines and it is Baker's children, appellants,
who sought a share of the residuary estate as "survivors" of their father. The
executor, on the other hand, sought to distribute the residue in equal shares to
Landrum, Franklin, Cutler, and herself as "survivors" of the listed beneficiaries
who outlived Haines.

SUPREME COURT OF OHIO

Baker's son and daughter filed a counterclaim, arguing that under the will
they are entitled to their deceased father's share. They argued in the alternative
that, because the language of the residuary clause was ambiguous, they are
entitled to their father's share under Ohio's antilapse statute. R.C. 2107.52(B),
the antilapse statute, provides:

"Unless a contrary intention is manifested in the will, if a devise of real
property or a bequest of personal property is made to a relative of a testator and
the relative * * * dies after that time, leaving issue surviving the testator, those
issue shall take by representation the devised or bequeathed property as the
devisee or legatee would have done if he had survived the testator."

Both sides moved for summary judgment. Finding the residuary clause
unambiguous and R.C. 2107.52(B) inapplicable, the trial court granted summary
judgment in favor of the executor, Polen. Baker's children appealed to the Fourth
District Court of Appeals. That court affirmed, reasoning that use of the phrase
"or to the survivors thereof" evinced "an intent to avoid operation of R.C.
2107.52(B) and to have the residuary estate vest only in those named beneficiaries
who survived" Haines. Baker's children then appealed to this court.

The cause is now before this court upon our allowance of a discretionary
appeal.
II

The parties agree that the dispositive issue here is what the residuary
clause of the will means. The question of law posed on summary judgment and
reviewed here de novo is (1) does "or to the survivors thereof" as used here
require that the "survivors" as among the listed beneficiaries share the residue of
the estate, or (2) do the issue of a deceased listed beneficiary take that
beneficiary's share as "survivors"? The executor's position in (1) above presents
a construction of the language that would operate in the manner of a per capita
2

January Term, 2001
distribution. The appellants' view in (2) above would have the residuary clause
language operate in the manner of a per stirpes distribution.

We begin with the basic law guiding will interpretation. It is axiomatic
that "[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.

In deciding the intent of the testator here, we recognize that this court has
previously addressed similar survivorship language. We held, for example, that in
the context of a parent's bequest to his unnamed children, "words of survivorship
should be referred to the period `for the payment or distribution of the subject-
matter of the gift,' " Sinton v. Boyd (1869), 19 Ohio St. 30, 35, 1869 WL 27,
quoting Young v. Robertson (1862), 8 Jurist, N.S., 825, and thus only those
beneficiaries who had survived the testator were entitled to share in the estate. Id.
at paragraph two of the syllabus. We later addressed a will provision that both
named specific individuals and included survivorship language in Renner v.
Williams (1905), 71 Ohio St. 340, 73 N.E. 221. There, this court addressed a
clause that read, "In the case of the death of either one or more of [three named
beneficiaries], the survivor or survivors shall inherit the property * * *; if more
than one survivor, to be divided equally, share and share alike." This court
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SUPREME COURT OF OHIO
interpreted the clause to mean that only the named beneficiary or beneficiaries
who were alive at the time of the testator's death inherited as "survivors." Id.,
paragraph two of the syllabus.

The court later explicitly extended the Sinton construction of survivorship
language to a residuary clause that provided for distribution to three named
beneficiaries, "or their survivors, absolutely and in fee simple, equally, share and
share alike," in Hamilton v. Pettifor (1956), 165 Ohio St. 361, 59 O.O. 470, 135
N.E.2d 264. We concluded that the term "survivors" referred to the survivors
among those named in that clause, and that the child of a deceased named
beneficiary was not entitled to share in the estate. Although the will
presumptively made individual bequests, see Jewett v. Jewett (1903), 67 Ohio St.
541, 67 N.E. 1098, summarily affirming Jewett v. Jewett (1900), 12 Ohio C.D.
131, 1900 WL 1176, this court, without explanation, regarded the named
beneficiaries as constituting a class. While such a characterization ought to be
discounted, we note that the survivorship language nonetheless evinced an intent
for the gift to operate in the manner of--but not technically as--a class gift. This
latter construction adheres to "[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." Jewett, 12 Ohio C.D. 131, 1900 WL 1176, at *2.

Here, the court of appeals recognized the construction set forth in several
of the foregoing cases, but found that the cases were "not directly dispositive, * *
* because they deal only with common law will construction cases and do not
analyze the term `survivors' in the context of R.C. 2107.52(B)." This is only
partially true. While this court decided Hamilton before the enactment of current
R.C. 2107.52(B), the analogous former R.C. 2107.52 nonetheless existed when
4

January Term, 2001
this court decided Hamilton.1 Although the court did not refer to former R.C.
2107.52 in Hamilton, such discussion was unnecessary. Because the language of
the will evinced the testator's intent to limit distribution to those surviving
beneficiaries, the statute did not apply. Therefore, we find that the construction
and effect of "survivors" in Hamilton and its progeny properly inform our
decision today. See, also, Cowgill v. Faulconer (1978), 57 Ohio Misc. 6, 8
O.O.3d 423, 385 N.E.2d 327; Shalkhauser v. Beach (1968), 14 Ohio Misc. 1, 43
O.O.2d 20, 233 N.E.2d 527.

The majority of those courts from sister jurisdictions that have addressed
this issue support our interpretation of the survivorship language in this will.2 A
minority of courts have reached a contrary result.3 In examining these latter

1.
Former R.C. 2107.52 was a 1953 recodification of G.C. 10504-73. 1953 H.B. No. 1.
The General Assembly then amended R.C. 2107.52 in 1992. Sub.H.B. No. 427, 144 Ohio Laws,
Part IV, 5457-5458. The legislative intent behind the amendments was not to alter this court's
construction of survivorship language in regard to wills, however; rather, the amendments were
wholly unconcerned with the Hamilton holding. The General Assembly stated in uncodified law:

"In amending sections 2107.01 and 2107.52 of the Revised Code, the General Assembly
hereby declares its intent to supersede the effect of the holding of the Ohio Supreme Court on
October 26, 1988, in Dollar Savings & Trust Co. of Youngstown v. Turner (1988), 39 Ohio St.3d
182 [529 N.E.2d 1261]." Section 3, Sub.H.B. No. 427, 144 Ohio Laws, Part IV, 5483.
In
Dollar Savings & Trust, this court addressed whether R.C. 2107.52 applied to a trust
agreement, so as to vest in a beneficiary's issue that portion of the trust res intended for a
beneficiary who predeceased the settlor. We held that the statute was applicable. Id. at syllabus.
In superseding this holding, the General Assembly demonstrated a willingness to counter what it
perceived to be an undesirable construction of R.C. 2107.52 by this court. The General Assembly
has never taken such action in regard to the Hamilton construction.
2. See,
e.g., In re Estate of Farris (Okla.App.1993), 865 P.2d 1275, 1278; In re Estate of
Kirchwehm (1991), 211 Ill.App.3d 1015, 1019, 156 Ill.Dec. 375, 570 N.E.2d 851, 854; Muzzall v.
Lanford (Tenn.App.1989), 776 S.W.2d 122, 123-124; Mitchell v. Lowery (1988), 90 N.C.App.
177, 182-184, 368 S.E.2d 7, 10-11; Porter v. Estate of Myrick (Fla.App.1988), 522 So.2d 99, 100;
Saia v. Sain (1987), 73 Md.App. 322, 327-329, 533 A.2d 1336, 1338-1339; In re Estate of Burruss
(1986), 152 Mich.App. 660, 664-665, 394 N.W.2d 466, 468; In re Miner's Estate (1971), 129 Vt.
484, 282 A.2d 827; In re Nicholas' Will (1966), 50 Misc.2d 76, 269 N.Y.S.2d 623; In re
Robinson's Will (Sur.Ct.1963), 37 Misc.2d 546, 548, 236 N.Y.S.2d 293, 295; Hummell v.
Hummell (1954), 241 N.C. 254, 258, 85 S.E.2d 144, 147; Coffin v. Short (1954), 82 R.I. 132, 135-
136, 106 A.2d 262, 263-264 (construing will language in context of statutory definition of words
of survivorship); In re Daniels' Estate (1951), 107 N.Y.S.2d 190; In re Northrip's Will (1940),
282 N.Y. 797, 27 N.E.2d 205.
3. See,
e.g., Early v. Bowen (1994), 116 N.C.App. 206, 213, 447 S.E.2d 167, 172; Gottlieb
v. Gottlieb (1987), 142 Wis.2d 937, 417 N.W.2d 197; In re Estate of Allmond (1974), 10
5

SUPREME COURT OF OHIO
cases, however, we find their reasoning either distinguishable or unpersuasive.
One such case, for example, has been criticized as an example of a "court
overemphasiz[ing] legislative intent and minimiz[ing] the expressed intent of the
testator." In re Robinson's Will, 37 Misc.2d at 549, 236 N.Y.S.2d at 296,
referring to Schneller v. Schneller (1934), 356 Ill. 89, 190 N.E. 121. See, also,
Converse v. Byars (1941), 112 Mont. 372, 378, 118 P.2d 144, 146-147. We find
that characterization applicable to the construction of the survivorship language
that the appellants urge us to adopt.

Therefore, we find that the meaning of "or to the survivors thereof" in
Haines's will is consistent with this court's long-standing construction of such
words of survivorship. As a result, we conclude that Haines intended for per
capita, or equal, distribution of the residuary estate to those named individuals
who survived her. And because the will provides for such distribution, the will
evinces sufficient intent to avoid application of the antilapse statute. See Tootle v.
Tootle (1986), 22 Ohio St.3d 244, 22 OBR 420, 490 N.E.2d 878, paragraph two
of the syllabus.

The appellants, however, advance a number of arguments that they allege
support finding a contrary intent on behalf of the testator. They argue, for
example, that "the survivors thereof" must be read to mean the issue of deceased
named beneficiaries, because the phrase "the same to be theirs absolutely"
conveyed an unconditional gift to each named beneficiary that could not lapse.
Because they conclude that the phrase is used in the context of bequests to named
individuals and not to a class, the appellants then aver that, pursuant to Martin v.
Summers (1995), 101 Ohio App.3d 269, 655 N.E.2d 424, the phrase "equally
share and share alike" requires a per stirpes and not a per capita distribution.

Wash.App. 869, 872, 520 P.2d 1388, 1390-1391; Schneller v. Schneller (1934), 356 Ill. 89, 91-93,
190 N.E. 121, 122-123.
6

January Term, 2001

We find this reasoning unpersuasive. In Martin, the Twelfth District
addressed a bequest to the testator's wife and son, "equally * * * share and share
alike." Id. at 271, 655 N.E.2d at 425. The son predeceased the testator. There
were no words of survivorship in the relevant will provisions, which the court of
appeals found dispositive in concluding that, although courts have interpreted the
quoted language as requiring a per capita distribution, the intent manifested in
that will's clause was for a per stirpes distribution. Id. at 272, 655 N.E.2d at 425-
426. We express no opinion here as to the correctness of the Martin rationale.
Because of the words of survivorship in the case sub judice, we find Martin of
little assistance. The words of survivorship here mandate a per capita
distribution, with each surviving beneficiary to take an absolute, or
unencumbered, respective share.

Further, it is well settled that "equally share and share alike" designates
the manner in which beneficiaries are to take. Mooney v. Purpus (1904), 70 Ohio
St. 57, 65, 70 N.E. 894, 895. Such language presumptively indicates an intent for
the beneficiaries to take per capita and not per stirpes. Id. at syllabus. See, also,
Huston v. Crook (1882), 38 Ohio St. 328, 331. Haines's treatment of the named
beneficiary group similarly requires per capita distribution.

The appellants also contend that, because Item XIX(D) of the will permits
the executor to make distributions of the estate to minors, and because none of the
named beneficiaries were minors at the time Haines made the will, we must
interpret "survivors" as meaning potential minors who would take as issue of the
named residual beneficiaries. If we do not, the appellants argue, then Haines's
"express inclusion of instructions for gifts to minors would be irrelevant,
meaningless, and without effect." It is indeed true that " `all the parts of the will
must be construed together, and effect, if possible, given to every word contained
in it.' " Ohio Natl. Bank of Columbus v. Adair, 54 Ohio St.2d at 30, 8 O.O.3d at
17, 374 N.E.2d at 418, quoting Townsend's Exrs., 25 Ohio St. 477, paragraph four
7

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of the syllabus. But the appellants misconstrue the import and effect of Item
XIX(D) in this context. Item XIX merely sets forth the powers of the executor; it
does not limit or broaden the meaning of the technical words employed in the
residuary clause.

Instead, the Item XIX language can be read as targeting provisions of the
will wholly distinct from the residuary clause. We note that two provisions of
Haines's will, Items XIV and XV, bequeath personal property to Dixie L. Polen
and Dorothy Franklin, respectively. Both individuals are identified as Haines's
nieces, and, as the appellants concede in their appellate brief, both women were
related to Haines by consanguinity. While the Item XVII residuary clause
contains language indicative of Haines's intent to escape application of R.C.
2107.52, Haines did not include such language in Items XIV and XV. Therefore,
should Polen or Franklin have predeceased Haines, the personal property bequests
made to them would have passed to Polen or Franklin's minor children, if any, in
accordance with R.C. 2107.52. See Oliver, 60 Ohio St.3d 32, 573 N.E.2d 55,
paragraph two of the syllabus. The appellants' argument--that, because there
were no minors in existence when Haines made her will, the language regarding
minors must inform our construction of the survivorship language--ignores the
possibilities for which the articulated executor powers would account. Given
such a possible explanation for the wording of Item XIX(D), the appellants have
failed to meet their burden of overcoming the presumed meaning of the
survivorship language. Item XIX's general grant of authority does not change the
presumed meaning of the specific survivorship language Haines employed.

Finally, the appellants argue that, if we construe the residuary clause as we
do today, the will would have permitted the possibility of intestate disposition.
This is so because the will did not set forth an alternative scheme for the
disposition of the residuary estate should all of the named beneficiaries have
predeceased Haines. But the appellants neither point to any authority mandating
8

January Term, 2001
the avoidance of intestate disposition, nor account for how this alleged prohibition
would come into play if everyone named in the will and their issue had
predeceased Haines. While the law disfavors intestate disposition, Wendell v.
AmeriTrust Co., N.A. (1994), 69 Ohio St.3d 74, 77, 630 N.E.2d 368, 371, the law
does not prohibit it.
III

For the foregoing reasons, we hold that the language in Haines's residuary
clause provides for per capita distribution to the surviving named beneficiaries,
rendering R.C. 2107.52(B) inapplicable. Because the appellants are not entitled
to share in the residuary estate, the judgment of the court of appeals is affirmed.
Judgment affirmed.

DOUGLAS, RESNICK, F.E. SWEENEY and LUNDBERG STRATTON, JJ., concur.

MOYER, C.J., dissents.

PFEIFER, J., dissents.
__________________

MOYER, C.J., dissenting. I respectfully dissent from the majority
decision holding that the residuary clause expresses an intention to provide per
capita distribution to the surviving named beneficiaries and that R.C. 2107.52(B)
is inapplicable. The law regarding the lapsing of testamentary gifts is well
established, and the majority's opinion does not comport with it.

R.C. 2107.52(B) provides that "[u]nless a contrary intention is manifested
in the will, if a devise of real property or a bequest of personal property is made to
a relative of a testator and the relative was dead at the time the will was made or
dies after that time, leaving issue surviving the testator, those issue shall take by
representation the devised or bequeathed property as the devisee or legatee would
have done if he had survived the testator." (Emphasis added.) This statute creates
a statutory presumption against the lapsing of bequests to relatives of the testator.
A testator, however, may avoid application of the statute by including in the
9

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testator's will a sufficient statement of intent that is clearly and affirmatively set
forth. See Larwill's Exrs. v. Ewing (1905), 73 Ohio St. 177, 182, 76 N.E. 503,
504-505. The will executed by Haines reveals an intent that the antilapse statute
apply. The majority construes the language of the will to mean the contrary of
what is expressed in the will.

In her will, Haines distributed the residue of her estate to five named
individuals to "equally share and share alike, the same to be theirs absolutely, or
to the survivors thereof." The rule is that when the words "equally" and "share
and share alike" are used to make testamentary gifts to named individuals, rather
than to a class, equal shares are to be distributed to all the named individuals, with
no gift lapsing if a named beneficiary predeceases the testator. See Martin v.
Summers (1995), 101 Ohio App.3d 269, 272, 655 N.E.2d 424, 425-426. Similar
to the will at issue here, a dispositive factor in Martin was that the testator made
gifts to named individuals, not a class, and used the language "equally, share and
share alike." Id. As the majority notes, the Martin opinion did not address a will
provision containing survivorship language, but when such a provision is read as
a whole, inclusion of survivorship language is not dispositive of an intent to
defeat the antilapse statute.

All parts of a will must be construed together, and, if possible, effect must
be given to every term of the will. 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. The majority cites
this proposition, but then discounts the testator's use of the term "absolutely" used
in conjunction with the survivorship language of the residuary clause. Standing
alone, survivorship language in a residuary clause may support the outcome
reached by the majority, but inclusion of the term "absolutely" directs a different
result.

As noted by the appellants, the term "absolutely" means "[c]ompletely,
wholly; without qualification; without reference or relation to, or dependence
10

January Term, 2001
upon, any other person, thing, or event." (Emphasis added.) Black's Law
Dictionary (6 Ed.1990) 9. In construing language of a will, technical words used
in the will should be accorded their strict technical meaning. Hamilton v. Pettifor
(1955), 101 Ohio App. 213, 214, 1 O.O.2d 149, 149-150, 138 N.E.2d 447, 448,
affirmed (1956), 165 Ohio St. 361, 59 O.O. 470, 135 N.E.2d 264. Taking into
consideration the technical meaning of the word "absolutely," it is apparent that
the testator did not intend to impose upon the five named beneficiaries a
requirement that they survive her. When the definition of "absolutely" is applied,
the will provision becomes "equally share and share alike, the same to be theirs
completely, without relation to, or dependence on, any other person, thing, or
event, or to the survivors thereof." As urged by appellants, use of the phrase "or
to the survivors thereof," which follows the term "absolutely," could have meant
"the surviving issue of each named legatee" or "those of the five named legatees
who survive me." Either approach is conceivable. See Sinton v. Boyd (1869), 19
Ohio St. 30, 1869 WL 27; Hamilton, 101 Ohio App. 213, 1 O.O.2d 149, 138
N.E.2d 447; Detzel v. Nieberding (1966), 7 Ohio Misc. 262, 36 O.O.2d 358, 219
N.E.2d 327. As Justice Pfeifer observes in his dissent, it is doubtful that language
plausibly containing different meanings is a sufficient statement that the testator
intended to defeat application of the antilapse statute.

There are other reasons that should have led the majority to a different
conclusion. First, Baker predeceased the testator by three and one-half years.
The law presumes that a testator knows the law when executing a will, and the
law presumes that the testator knew the presumption created by R.C. 2107.52(B).
Tootle v. Tootle (1986), 22 Ohio St.3d 244, 247, 22 OBR 420, 424, 490 N.E.2d
878, 881; Ohio Natl. Bank of Columbus v. Harris (1933), 126 Ohio St. 360, 364-
365, 185 N.E. 532, 534. Given this presumptive knowledge, if the testator had
desired that Baker's gift would lapse, she could have amended her will to ensure
that Baker's surviving issue would not take his share of the residue estate.
11

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Second, Item XIX(D) of the will, which provides for the contingency that
gifts from the estate could be made to minors, indicates an intent to provide for
the issue of certain of the beneficiaries. Under Item XIX of the will, which
designates powers of the executor, the question is, to whom would the executor
make such gifts? Because the language of the residuary clause evidences no
intent to defeat application of the antilapse statute, it is reasonable to conclude
that the only minors to which Item XIX(D) could apply would be the issue of
named beneficiaries.

Finally, appellants make no claim that the five named beneficiaries
constitute a class, natural or otherwise. The general rule is that when a gift is
made to named persons, it is a gift to them individually, and not as a class. See
Jewett v. Jewett (1900), 12 Ohio C.D. 131, 1900 WL 1176, at *3. Unlike the case
of Hamilton v. Pettifor (1956), 165 Ohio St. 361, 59 O.O. 470, 135 N.E.2d 264,
cited by the majority, the five individuals named in the residuary clause are not
claimed to be of equal relationship to each other or to the testator, and not all
named beneficiaries are members of what could be considered to be a class, such
as nieces, nephews, or grandchildren. When there is no class and gifts are made
to named beneficiaries, the proper disposition of gifts should be per stirpes, and
not per capita as ordered by the majority. See Martin, 101 Ohio App.3d at 272,
655 N.E.2d at 425-426, citing Mooney v. Purpus (1904), 70 Ohio St. 57, 70 N.E.
894.

For the foregoing reasons, I respectfully dissent from the interpretation of
the residuary clause adopted by the majority. We should reverse the judgment of
the court of appeals.
__________________

PFEIFER, J., dissenting. The danger in applying settled case law to wills
is that all wills are personal. Intentions of testators and stylistic preferences of
lawyers combine to make unique documents. Thus, while particular cases may
12

January Term, 2001
appear to be applicable to a particular will, a closer reading of the language of the
wills involved reveals key differences. Such is the case in this matter.

The majority cites Hamilton v. Pettifor (1956), 165 Ohio St. 361, 59 O.O.
470, 135 N.E.2d 264, for the proposition that use of the term "survivors" in the
clause of a will refers to the survivors named in that clause, and not to the
children of a deceased beneficiary. The Hamilton interpretation was correct in
that particular case because of the particular language employed. That will read:

"If my wife should predecease me, should remarry, or at her death after
my decease, I give, devise and bequeath all of my property of any kind, nature
and description, then remaining, of which I may own or have the right to dispose
of at the time of my decease, to my three (3) children, Carl, Emma and Muriel
Pettifor, or their survivors, absolutely and in fee simple, equally, share and share
alike."

The key phrase in the clause is "to my three children * * *, or their
survivors, absolutely and in fee simple, equally, share and share alike." In the
Hamilton will, the "or their survivors" language comes before the "share and
share alike" language. Thus, if the court had interpreted the "or their survivors"
language as including the children of a deceased beneficiary, the collective
surviving beneficiaries and the deceased beneficiary's children would be part of
the group that would "share and share alike." They would each get an equal share
of the estate, thereby extending the number of persons in the class. For example,
in Hamilton, if the deceased beneficiary, Muriel, had had two children, those two
children would get shares of the estate equal to what the surviving beneficiaries,
Carl and Emma, got. Each would wind up with one fourth of the estate. Muriel's
children would fare better than under even a per stirpes distribution, and Carl and
Emma would fare worse. If the Hamilton court had read "survivors" as "children
of beneficiaries," the more children a deceased beneficiary might have, the
smaller the shares for the surviving beneficiaries.
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There is no such danger in this case. Here, the "or to the survivors
thereof" language follows the language that grants each of the five beneficiaries
an equal share. Again, the language reads that the estate goes to "Dorothy
Landrum, Dixie Lee Polen, Dorothy N. Franklin, Ercil Cutler and George Baker,
equally share and share alike, the same to be theirs absolutely, or to the survivors
thereof." In this case, the will clearly creates shares in the estate before the
"survivors" language appears. Each named beneficiary is granted one fifth of the
estate. The "survivors" are outside of the phrase bequeathing the estate to the five
persons. Thus, unlike in Hamilton, no matter the size of each beneficiary's
family, the size of each share could not be diluted to less than one fifth of the total
of the estate. That one-fifth share belongs absolutely to each of the five named,
so absolutely, in fact, that even in their own death that share gets passed on to
their own survivors.

In short, the will in this case creates a solid one-fifth distribution for each
beneficiary. In Hamilton, if the court had interpreted "survivors" as children of
original legatees, the distribution could have been fractionalized further. Thus, in
Hamilton, allowing children of legatees to participate would potentially leave the
original beneficiaries worse off than if all of them had survived. Because of the
different placement of the "survivors" language in this case, the same potentiality
did not exist.

It is a subtle difference between the two wills, but very significant. And it
is significant enough a difference that the will in this case should be considered
separately from Hamilton. It seems to me clear in this case that the testator's
intent was to give equal shares of the estate to the five beneficiaries, and that if a
beneficiary died, their one-fifth share would go to their survivors. At the very
least, the clause at issue is ambiguous. As such, the clause does not defeat the
antilapse statute. The statute reads:
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January Term, 2001

"Unless a contrary intention is manifested in the will, if a devise of real
property or a bequest of personal property is made to a relative of a testator and
the relative * * * dies after that time, leaving issue surviving the testator, those
issue shall take by representation the devised or bequeathed property as the
devisee or legatee would have done if he had survived the testator." R.C.
2107.52(B).

The will in this case does not contain language that overcomes the
statute's presumption in favor of deceased beneficiaries' survivors. If one can
logically read this will to allow for recovery by children of a beneficiary, then it
certainly does not manifest the "contrary intention" as required by the antilapse
statute.

The court today stamps the language used in this will with its imprimatur.
Do we really want the language of this will to be the benchmark for how to avoid
the antilapse statute? Is this the example we expect Ohio practitioners to follow?
This court's ruling today not only defeats the intent of the testator in this case, it
defeats the General Assembly's intent in enacting the antilapse statute.
__________________

Kegler, Brown, Hill & Ritter, R. Douglas Wrightsel, Stephen E.
Chappelear and Mark R. Reitz, for appellee.

Wood & Lamping LLP, Paul R. Berninger, W. Kelly Lundrigan and
Catherine S. Neal, for appellants.
__________________
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