2021 Ohio 4252
Ohio Ct. App.2021Background
- Theodore C. Penno (d. May 15, 2019) executed a 1998 will: Item II devised his farm and farm chattels to his brother John; Item III devised the residue equally to John and Mary Ann Diller.
- John predeceased Theodore (d. 2016), leaving two children (David and Linda Penno) as his only descendants.
- Will admitted to probate; co-executors appointed. Mary Ann filed for declaratory judgment arguing Item II lapsed and should pass under the residuary clause (Item III).
- Defendants (John’s children and co‑executor) argued Ohio’s anti‑lapse statute, R.C. 2107.52, creates a substitute gift to John’s surviving descendants.
- Key legal dispute: which version of R.C. 2107.52 controls and whether the statutory definition of "devise" (R.C. 2107.52(A)(3)) includes primary devises so that a substitute gift can be created in favor of John’s descendants.
Issues
| Issue | Plaintiff's Argument (Mary Ann) | Defendant's Argument (Phyllis/David & Linda) | Held |
|---|---|---|---|
| Which version of R.C. 2107.52 governs effect of the will? | Apply the version in effect when will was executed (1998). | Apply the version in effect at decedent's death (2019). | Court: 2019 version controls (statute applies based on date of death; will "speaks" at death). |
| Does the word "devise" in R.C. 2107.52(B)(2)(a) take the meaning from R.C. 2107.52(A)(3)? | The term should be defined by A(3); but that definition excludes primary devises, so anti‑lapse should not apply to Item II. | The anti‑lapse protections apply to primary devises; A(3) should not be read to exclude them. | Court: A(3) is the definitional section for the whole statute; B(2)(a) incorporates A(3). |
| Is R.C. 2107.52(A)(3)'s list of "devise" categories exhaustive (i.e., excludes primary devises)? | Yes—A(3) uses "means," signaling an exhaustive definition; primary devises are not listed and thus excluded. | No—historical/functional arguments that anti‑lapse was meant to cover primary devises. | Court: A(3) is exhaustive ("means" denotes limitation); therefore primary devises are not "devises" for §2107.52 purposes. |
| Can a substitute gift be created under §2107.52(B)(2)(a) from Item II (a primary devise to John)? | No—Item II is a primary devise and not a qualifying "devise" under A(3); it lapses and falls to residue. | Yes—anti‑lapse should create substitute gift to John’s descendants. | Court: No substitute gift; Item II lapses. Trial court's order granting half to David and Linda reversed. |
Key Cases Cited
- Woolley v. Paxson, 46 Ohio St. 307 (1889) (early Ohio anti‑lapse purpose: liberal construction to effect probable intent of testator)
- Cent. Trust Co. of N. Ohio, N.A. v. Smith, 50 Ohio St.3d 133 (1990) (will "speaks" at death; law at death governs a will's effect)
- Wendell v. AmeriTrust Co., N.A., 69 Ohio St.3d 74 (1994) (testator's intent as of execution may be considered when construing will)
- Larwill’s Exrs. v. Ewing, 73 Ohio St. 177 (1905) (historical application of anti‑lapse to primary devises)
- Helvering v. Morgan’s, Inc., 293 U.S. 121 (1934) (distinction between statutory definitions introduced by "means" versus "includes")
- Digital Realty Trust, Inc. v. Somers, 583 U.S. _, 138 S.Ct. 767 (2018) (legislative definitions in statute are controlling in interpreting terms)
- Jasinsky v. Potts, 153 Ohio St. 529 (1950) (plain, unambiguous statutory language controls interpretation)