Castillo v. OttCastillo v. Ott
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John R. Kuhl, for appellants.
Annе M. Frayne and Donald W. Harper II, for appellee Mark Ott.
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YARBROUGH, P.J.
I. Introduction
{¶ 1} Appellants, Joelle Castillo, Amanda Ott, and Christopher Ott, bring this accelerated appeal from the judgment of the Lucas County Court of Cоmmon Pleas, Probate Division, dismissing their declaratory judgment action against appellees, Mark Ott, Curt Ott, and Gloria Chadwick. We affirm.
{¶ 2} The facts relevant to our disposition of this appeal are not in disрute. On July 8, 2013, appellants’ grandfather, Herman Ott, died testate. In his will, Herman stated his desire to leave the entirety of his estate to his wife, Wanda Mae Ott. However, Wanda predeceased Herman. Thus, the will provided for a distribution of Herman‘s estate “to [Herman‘s] children, share and share alike, absolutely and in fee simple.” Herman‘s children included appellees and appellants’ father, Roger Ott. Unfоrtunately, Roger also predeceased Herman. Consequently, the attorney for Herman‘s estate notified appellants that they would not receive a distribution under the will because Roger‘s shаre lapsed upon his death.
{¶ 3} On March 11, 2014, upon receiving notification that they would not receive Roger‘s share of Herman‘s estate, appellants filed their complaint, seeking an order frоm the probate court declaring that they were entitled to receive Roger‘s share of the inheritance pursuant to
{¶ 4} Following briefing on Mark‘s motion to dismiss, the рrobate court set the matter for a hearing. One week before the hearing was scheduled to occur, appellants
B. Assignment of Error
{¶ 5} Appellants now appeal the decision of the probate court, assigning the following error for our review:
The Probate Cоurt erred in granting defendant Mark Ott‘s Motion to Dismiss plaintiffs’ Complaint for Declaratory Judgment and denying plaintiffs’ Motion for Summary Judgment.
II. Analysis
{¶ 6} In appellants’ sole assignment of error, they contend that the trial court errеd in granting Mark‘s motion to dismiss and denying their motion for summary judgment. As an initial matter, we reiterate the fact that the trial court, prior to ruling on the motions, issued an order converting Mark‘s motion to dismiss into a motion for summary judgment. Thus, we review the trial court‘s decision under the standard applied to summary judgment rulings.
{¶ 7} We review summary judgment rulings de novo, applying the same standard as the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996); Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d 127, 129, 572 N.E.2d 198 (9th Dist.1989). The motion may be granted only when it is demonstrated:
(1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whоm the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 67, 375 N.E.2d 46 (1978);
Civ.R. 56(C) .
{¶ 8} Here, the parties concede that the relevant facts are undisputed. They disagree, however, on the application of
(2) Unless a contrary intent appears in the will, if a devisee fails to survive the testator and is a grandparent, a descendant of a grandparent, or a stepchild of either the testator or the donor of a power of appointment exercised by the testator‘s will, either of the following applies:
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(b) If the devise is in the form of a class gift, other than a devise to “issue,” “descendants,” “heirs of the body,” “heirs,” “next of kin,” “relatives,” or “family,” or a class described by language of similar import, a substitute gift is created in the surviving descendants of any deceased
devisеe. The property to which the devisees would have been entitled had all of them survived the testator passes to the surviving devisees and the surviving descendants of the deceased devisees. Eaсh surviving devisee takes the share to which the surviving devisee would have been entitled had the deceased devisees survived the testator. Each deceased devisee‘s surviving descendants who are substitutеd for the deceased devisee take, per stirpes, the share to which the deceased devisee would have been entitled had the deceased devisee survived the testator. * * * (C) For рurposes of this section, each of the following applies:
(1) Attaching the word “surviving” or “living” to a devise, such as a gift “to my surviving (or living) children,” is not, in the absence of other language in the will or other evidence to the contrary, a sufficient indication of an intent to negate the application of division (B) of this section.
(2) Attaching other words of survivorship to a devise, such as “to my child, if my child survives me,” is in the absenсe of other language in the will or other evidence to the contrary, a sufficient indication of an intent to negate the application of division (B) of this section.
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(D) Except as provided in divisiоn (A), (B), or (C) of this section, each of the following applies:
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(2) If the residue is devised to two or more persons, the share of a residuary devisee that fails for any reason passes to the other residuary devisee, or to other residuary devisees in proportion to the interest of each in the remaining part of the residue. (Emphasis added.)
{¶ 9} In the case at bar, Mark argues that, under
{¶ 10} For their part, appellants assert that the anti-lapse protections of
{¶ 11} The fact that Herman‘s devise does not use the words “issue,” “descendants,” “heirs of the body,” “heirs,” “next of kin,” “relatives,” or “family” does not automаtically subject it to that section‘s anti-lapse provisions. Notably, in addition to the classes of individuals expressly set forth in the statute,
{¶ 13} At the outset, we note that the primary purpose of statutory constructiоn is to give effect to the intention of the General Assembly. Henry v. Cent. Natl. Bank, 16 Ohio St.2d 16, 20, 242 N.E.2d 342 (1968), paragraph two of the syllabus. A court must first look to the language itself to determine the legislative intent. Provident Bank v. Wood, 36 Ohio St.2d 101, 105, 304 N.E.2d 378 (1973). “If that inquiry reveals that the statute conveys a meaning which is clear, unequivocal and definite, at that point the interpretative effort is at an end, and the statute must be applied accordingly.” Id. at 105-106, citing Sears v. Weimer, 143 Ohio St. 312, 55 N.E.2d 413 (1944).
{¶ 15} As to appellants’ argument concerning
{¶ 16} In light of the foregoing, we find that the trial court did not err in granting Mark‘s motion to dismiss and denying appellants’ motion for summary judgment. Accordingly, appellants’ sole assignmеnt of error is not well-taken.
{¶ 17} The judgment of the Lucas County Court of Common Pleas, Probate Division, is affirmed. Appellants are ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J.
Thomas J. Osowik, J.
Stephen A. Yarbrough, P.J. CONCUR.
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interеsted in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.