Diller v. Diller, 2023 Ohio 1508

Background

Testator Theodore C. Penno (will executed 1998) died in 2019; Item II devised his farm to his brother John Penno, and Item III (residuary clause) devised the remainder equally to John and Mary Ann Diller, per stirpes.
John predeceased Theodore in 2016 and was survived by his children/appellants David Penno and Linda Pennucci; Mary Ann Diller (appellee) was Theodore’s only surviving sibling.
Mary Ann sued for declaratory relief, arguing the Item II devise to John lapsed on his death and therefore passed under the residuary clause to her (in part).
John’s children argued Ohio’s antilapse statute (former R.C. 2107.52) prevented lapse and instead passed the farm to John’s heirs.
The Third District held former R.C. 2107.52(A)(3)(a) (which defined “devise” using the word “means”) did not cover a primary devise, so the antilapse statute did not apply; the Supreme Court dismissed the appeal as improvidently accepted, and Justice Stewart dissented, arguing the Court should decide and reverse.
After the appellate decision and the accepted appeal, the General Assembly amended R.C. 2107.52(A)(3)(a) (effective Apr. 3, 2023) to state that “devise includes a primary devise…,” and made the amendment retroactive to the fullest extent permitted.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether former R.C. 2107.52 applied to a primary devise	Diller: statute’s definition of “devise” (using "means") limits application to alternative devises, class gifts, or exercises of a power of appointment; a primary devise lapses	Pennucci/Penno: antilapse historically covers primary devises; the statutory definition was not intended to exclude primary devises	Supreme Court (majority): appeal dismissed as improvidently accepted (no merits decision); Third Dist.: antilapse did not apply; Stewart, J. (dissent): would hold statute applies to primary devises and reverse
Whether the statute’s use of "means" (vs. "includes") creates an absurd or ministerial drafting error that courts should correct	Diller: read the statute literally; "means" narrows definition to listed items	Pennucci/Penno: literal reading produces absurd result given historic application; "means" was a ministerial mistake—court should correct under absurdity doctrine; subsequent legislative amendment confirms intended scope	Majority: no ruling on the merits (appeal dismissed); Stewart, J. (dissent): would apply absurdity doctrine and treat the definition as intended to include primary devises; legislative amendment corroborates that intent

Key Cases Cited

Woolley v. Paxson, 46 Ohio St. 307, 24 N.E. 599 (1889) (discusses origin and purpose of Ohio’s early antilapse law)
Larwill’s Exrs. v. Ewing, 73 Ohio St. 177, 76 N.E. 503 (1905) (applied antilapse principles to primary devises)
West v. Aigler, 127 Ohio St. 370, 188 N.E. 563 (1933) (antilapse precedent in Ohio jurisprudence)
Cochrel v. Robinson, 113 Ohio St. 526, 149 N.E. 871 (1925) (discusses antilapse statutory effects)
Dollar Sav. & Trust Co. of Youngstown v. Turner, 39 Ohio St.3d 182, 529 N.E.2d 1261 (1988) (addressed antilapse application to trusts)
Polin v. Baker, 92 Ohio St.3d 563, 752 N.E.2d 258 (2001) (statutory context regarding probate/antilapse statutes)
State ex rel. Clay v. Cuyahoga Cty. Med. Examiner’s Office, 152 Ohio St.3d 163, 94 N.E.3d 498 (2017) (discusses the doctrine of absurdity as a basis for correcting obvious statutory errors)

(Outcome note: the Supreme Court majority dismissed the accepted appeal as improvidently accepted without resolving the statutory question; a Justice dissented arguing the Court should decide and hold the antilapse statute covers primary devises, a position subsequently reinforced by the legislature’s amendment.)