JENNIFER J. DEMERASKI v. JOHN R. BAILEY, EXECUTOR, ET AL.
No. 102304
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
June 4, 2015
[Cite as Demeraski v. Bailey, 2015-Ohio-2162.]
JUDGMENT: REVERSED AND REMANDED
Civil Appeal from the Cuyahoga County Probate Court Case No. 2014 ADV 198128
BEFORE: E.A. Gallagher, P.J., Boyle, J., and Blackmon, J.
RELEASED AND JOURNALIZED: June 4, 2015
Anthony W. Kerber
Anthony W. Kerber Co., L.P.A.
14701 Detroit Avenue, Suite 540
Lakewood, Ohio 44107
John L. Reulbach Jr.
14701 Detroit Avenue, Suite 575
Lakewood, Ohio 44107
ATTORNEYS FOR APPELLEES
FOR JOHN R. BAILEY
Kevin T. O’Connor
Laura E. Englehart
Kohrman Jackson & Krantz P.L.L.
1375 Ninth Street
One Cleveland Center, 20th Floor
Cleveland, Ohio 44114
FOR JAMES P. BAILEY
Algis Sirvaitis
Algis Sirvaitis & Company
880 E. 185th Street
Cleveland, Ohio 44119
FOR MARY GAIL BURNSON
Amanda M. Buzo
Wegman, Hessler & Venderburg
6055 Rockside Woods Boulevard
Suite 200
Cleveland, Ohio 44131
{¶1} In this accelerated appeal, plaintiff-appellant Jennifer Demeraski appeals from the dismissal of her complaint to construe the will of James Phillip Bailey, III ( Bailey ) pursuant to
Factual and Procedural Background
{¶2} Demeraski is the natural born daughter of Bailey and Gail Elaine Bailey. Until she was five years old, she was known by her legal birth name, Jennifer Joan Bailey. Shortly after her fifth birthday, following her parents divorce and her mother s remarriage to James Jaworski, Demeraski s name was legally changed, with Bailey s consent, to Jennifer Joan Jaworski. There was no adoption of Jennifer by Jaworski. When she later married, she changed her surname to Demeraski.
{¶3} Bailey died testate on October 24, 2012. His will was probated by the Cuyahoga County Court of Common Pleas, Probate Division (the probate court ) on November 15, 2012. By operation of a residuary clause, the will disposed of the residue of Bailey s estate as follows:
4.1 All the rest, residue and remainder of my property (including any interest in J.B. Stamping, Inc. and Lucky 13) shall be liquidated within two (2) years after my death and the proceeds of such property shall be apportioned in equal shares among my children who survive me and shall be distributed to them: JAMES P. BAILEY, IV, JOHN R. BAILEY,
JEFFREY W. BAILEY, JERALD M. BAILEY, JILL SHANTZLIN, JANET KRUSE, J. PHILIP BAILEY and JASON L. BAILEY.
{¶4} With respect to Bailey s children, paragraphs 6.2 and 6.3 of the will further provided:
6.2. Presently, I have eight (8) children, namely, JAMES P. BAILEY, IV, JOHN R. BAILEY, JEFFREY W. BAILEY, JERALD M. BAILEY, JILL SHANTZLIN, JANET KRUSE, J. PHILIP BAILEY, JASON L. BAILEY, all of whom are adults.
6.3 The words child, children, and issue as used herein include persons whose relationship is such by adoption as well as issue of such adopted person. No person who is otherwise a child or issue of mine shall lose his or her status as such by being adopted by another person.
{¶5} On May 12, 2014, Demeraski filed a complaint for declaratory judgment against John R. Bailey, executor of Bailey s estate (the executor ), and the beneficiaries of the estate, seeking (1) a declaration that she was Bailey s daughter and was entitled to inherit an equal share of Bailey s residuary estate under the will, and (2) an order requiring the executor to distribute the residuary estate accordingly. Although she was not specifically named in the will, Demeraski claimed that she was entitled to inherit a share of Bailey s residuary estate as one of Bailey s surviving children under paragraphs 4.1 and 6.3 of the will. Demeraski further alleged that she had not received notice of the probating of Bailey s will and that she would have inherited as Bailey s daughter under Ohio s statutes of descent and distribution had Bailey died intestate.
{¶6} In support of her claim, Demeraski attached to her complaint a copy of Bailey s will and copies of various documents establishing that she was Bailey s
{¶7} On July 23, 2014, the executor filed a motion to dismiss the complaint pursuant to
{¶8} Demeraski opposed the motion. On November 6, 2014, the probate court granted the motion to dismiss, concluding that Demeraski could prove no set of facts that would entitle her to take under Bailey s will and entered a judgment entry dismissing the complaint. Relying on this court s decision in Belardo v. Belardo, 187 Ohio App.3d 9, 2010-Ohio-1758, 930 N.E.2d 862 (8th Dist.), the probate court held that because Demeraski was not among the children Bailey had listed by name in his will as the beneficiaries of his residuary estate, Demeraski needed to establish that Bailey intended to make a class gift of his residuary estate to his children (rather than individual gifts to the children specifically named), in order to share in his estate under the residuary clause.
{¶9} Demeraski appealed the probate court s judgment, raising the following assignment of error for review:
The Lower Court committed prejudicial error by dismissing Plaintiff-Appellant s Complaint for Declaratory Judgment, without a hearing, based upon a misreading of Belardo and a corresponding misinterpretation and/or disregard of provision in the underlying will which demonstrated that the Testator s likely intent was not to make a gift to specifically-named children, but rather, to create a class gift that included Plaintiff-Appellant, a natural-born daughter thereof, whom the Testator thought had been adopted.
Law and Analysis
Standard of Review
{¶10} A
{¶11} The probate court dismissed Demeraski s complaint under
{¶12} In deciding whether a complaint should be dismissed pursuant to
{¶13} Where a plaintiff s claim is predicated upon a written instrument attached to the complaint, a dismissal under
{¶14} Applying the foregoing standards, we find that the probate court erred in dismissing Demeraski s complaint for failure to state a claim for which relief can be granted.
Failure to Hold a Hearing on the Motion to Dismiss
{¶15} As an initial matter, we note that although Demeraski asserts in her assignment of error that the probate court erred by dismissing her complaint without a
{¶16} However, even if we were to consider the issue, we would find that the probate court did not err in failing to hold a hearing on the executor s motion to dismiss.
{¶17} Resolution of a
Construction of the Will
{¶19} In the construction of a will, the sole purpose of the court should be to ascertain and carry out the intention of the testator. Polen v. Baker, 92 Ohio St.3d 563, 565, 752 N.E.2d 258 (2001), quoting Oliver v. Bank One, Dayton, N.A., 60 Ohio St.3d 32, 34, 573 N.E.2d 55 (1991). This intent must be ascertained from the language used in the will. Oliver at 34, citing Carr v. Stradley, 52 Ohio St.2d 220, 371 N.E. 2d 540 (1977), paragraph one of the syllabus; Townsend s Exrs. v. Townsend, 25 Ohio St. 477 (1874), paragraphs one and two of the syllabus. The words used in the will, 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, 54 Ohio St.2d 26, 30, 374 N.E.2d 415 (1978), quoting Townsend s Exrs. at paragraph three of the syllabus.
{¶20} The court may consider extrinsic evidence to determine the testator s intent only when the language used in the will creates doubt as to its meaning. Oliver at 34. Extrinsic evidence may be considered where the language of the will is ambiguous; however, where the language of the will is clear and unambiguous, the testator s intent must generally be ascertained from the express terms of the will itself. Boulger v. Evans, 54 Ohio St.2d 371, 378-379, 377 N.E.2d 753 (1978); Belardo, 187 Ohio App.3d 9, 2010-Ohio-1758, 930 N.E.2d 862, at ¶ 8, 23.
{¶21} Extrinsic evidence may also be considered to resolve a latent ambiguity in a will, i.e., an ambiguity that is not apparent from the language used in the will but arises because some extrinsic fact or evidence creates the necessity for interpretation or a choice between two or more possible meanings, or if the words apply equally well to two or more different subjects or things. Radzisewski v. Szymanczak, 8th Dist. Cuyahoga No. 97795, 2012-Ohio-2639, ¶ 18-19. Where there is a latent ambiguity appearing in a will,
{¶22} Thus, where a term in a will is susceptible to various meanings, the [court] may consider the circumstances surrounding the drafting of the instrument, in order to arrive at a construction consistent with the overall intent of the testator so as to uphold all parts of the will. Sandy v. Mouhot, 1 Ohio St.3d 143, 145, 438 N.E.2d 117 (1982), quoting Wills v. Union Savings & Trust, 69 Ohio St.2d 382, 433 N.E.2d 152 (1982), paragraph two of the syllabus; see also Holmes v. Hrobon, 158 Ohio St. 508, 518, 110 N.E.2d 574 (1953) ( [W]here there is some doubt as to the meaning of the will the court may admit extrinsic evidence of the testator s family situation, his business and financial circumstances, the nature and extent of his investments, the character and manner of operation of his business and the natural objects of his bounty. With such evidence the court is better able to see things as the testator saw them and to construe the words used in the will as he understood them and to give that construction which he intended. ). A court, however, cannot rewrite a will. Boulger at 379; Barr v. Jackson, 5th Dist. Delaware No. 08 CAF 09 0056, 2009-Ohio-5135, ¶ 45. A court has no power to make a new and different will for a testator in contravention of the language employed in the will. Kurtz v. Kurtz, 12th Dist. Preble No. CA90-09-017, 1991 Ohio App. LEXIS 2363, *8 ( May 20, 1991), citing Cleveland Trust Co. v. Frost, 166 Ohio St. 329, 142 N.E.2d 507 (1957); see also Weygandt v. Ward, 9th Dist. Wayne No. 09CA0050, 2010-Ohio-2015, ¶ 10 ( If the terms and expressions employed by a testator forbid
{¶23} [A] person has a right to dispose of his property in a manner he thinks fit. Birman v. Sproat, 47 Ohio App.3d 65, 68, 546 N.E.2d 1354 (2d Dist.1988), citing Moskowitz v. Federman, 72 Ohio App. 149, 51 N.E. 2d 48 (9th Dist.1943). Ohio law allows a testator to disinherit a child without specifically stating that he intends to disinherit that child. Estate of Snell v. Kilburn, 165 Ohio App.3d 352, 364, 2005-Ohio-7076, 846 N.E.2d 572, ¶ 52 (7th Dist.). Under Ohio law, an heir may be disinherited expressly or by necessary implication, i.e., where such a strong probability of disinheritance exists that an intention to the contrary cannot be supposed. Id., quoting Crane v. Exrs. of Doty, 1 Ohio St. 279, 283 (1853). If [a] testator makes no mention of one of his children in his will and by such will disposes of all of his property, such child is as completely disinherited as if the testator had specifically so provided. Estate of Snell at ¶ 52-56 (where testator completely disposed of all his property in his will, including devising his residuary estate to a specifically named devisee without mentioning his son, such disposition overcame the presumption against disinheritance), quoting Birman at 69; Walther-Coyner v. Walther, 2d Dist. Montgomery No. 18131, 2000 Ohio App. LEXIS 2319, *14-15 (June 2, 2000) (necessary implication existed in testator s will to disinherit child with former spouse based on language in the will stating [f]or all purposes of this will, references to a child or
{¶24} The residuary clause listed by name eight of Bailey s children to whom Bailey devised his residuary estate. Absent from that list was any reference to Demeraski. Demeraski was not, however, expressly disinherited in the will. Because Bailey s will disposed of all his property and Demeraski was not specifically named as one of the beneficiaries of his residuary estate, she would need to establish (1) that Bailey intended to make a class gift of his residuary estate to his children and (2) that she was included within that class, in order for her to take under the will s residuary clause.
{¶25} A class gift is a gift of an aggregate sum to be divided among a group of persons, uncertain in number and specific identification at the time of the gift, but which can be ascertained at a future time, the amount of each share depending on the ultimate number of persons included in the class. Cent. Trust Co., N.A. v. Smith, 50 Ohio St.3d 133, 138, 553 N.E.2d 265 (1990), citing Annotation, When is a Gift by Will or Deed of Trust One to a Class, 61 A.L.R.2d 212, 221 (1958); see also Kurtz, 12th Dist. Preble No. CA90-09-017, 1991 Ohio App. LEXIS 2363, at *8 ( Generally, a gift to a number of persons not named, but answering a general description, is a gift to a class. * * * A bequest to the children of a named person is a class gift. )
{¶26} 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, 12 Ohio C.D. 131, 21 Ohio C.C. 278 (1900), aff d without opinion, 67 Ohio St. 541, 67 N.E. 1098 (1903) ( [T]he rule
{¶27} This court considered a similar issue in Belardo, supra. Belardo involved the interpretation of a testator s bequest to to my beloved sons, John Salvatore Belardo and James Charles Belardo, share and share alike, absolutely and in fee simple. Belardo at ¶ 2. James Charles Belardo predeceased the testator. Id. at ¶ 3. James D. Belardo, his son and the grandson of the decedent, filed a complaint for declaratory judgment in the probate court claiming that under Ohio s antilapse statute,
In his will, Belardo designated the individual beneficiaries both as a class, i.e., his beloved sons, and he named them as individuals. In Jewett v. Jewett, 12 Ohio C.D. 131, 21 Ohio C.C. 278, aff d without opinion, 67 Ohio St. 541, 67 N.E. 1098 (1900), the rule in such a case was stated as follows: [T]he rule of law is, that when the gift is made to persons designated by name, that is, individually, it is a gift to them as individuals, and not as a class, even though the persons designated may constitute a class[.] The court explained that where the will designates beneficiaries as individuals, and also as a class, and there is nothing more to show the testator s intent, the construction is that the gift by name constitutes a gift to individuals to which the class description is added by way of identification. Id.
As in Jewett, it seems clear to us that this is a gift to John Salvatore Belardo and James Charles Belardo as individuals, and not as a class. There is nothing to show that Belardo intended anything more than to identify John and James as being beloved sons. Accordingly, we find Belardo s intent was to give each son, individually, an equal one-half share of his estate.
{¶28} Demeraski acknowledges the general rule set forth in Belardo but argues that this case is distinguishable because in this case, unlike Belardo, there is something more to show the testator s intent, namely, the provision in paragraph 6.3 relating to a child who has been adopted by another person.
{¶29} Demeraski argues that, given that there is no allegation that (1) any of Bailey s other children had been by adopted another person or (2) Bailey would have believed that any of his other children would had been adopted by another person, it would have been senseless for Bailey to have included such a provision in his will unless Bailey believed that Demeraski had been legally adopted by her stepfather, James Jaworski, and wanted to provide for her, as he had for his other biological children, in his
{¶30} When construing a will to determine a testator s intent, all the parts of the will must be construed together, and effect, if possible, given to every word contained in it. Polen, 92 Ohio St.3d at 568, 752 N.E.2d 258, quoting Adair, 54 Ohio St.2d at 30, 374 N.E.2d 415; Townsend s Exrs., 25 Ohio St. 477, at paragraph four of the syllabus; see also In re Henderson, 12th Dist. Butler No. CA2012-03-051, 2013-Ohio-1380, ¶ 18 (ascertaining testator s intent based upon a holistic reading of his will ). Conjecture is not permitted to supply what the testator has failed to indicate * * * . Crane, 1 Ohio St. at 284, quoting 1 Jarman, Wills, 315.
{¶31} In paragraph 4.1, Bailey states that his residuary estate shall be apportioned in equal shares among my children who survive me and shall be distributed to them but then, without explanation, proceeds to identify only eight of his nine children in the list that follows. Similarly, in paragraph 6.2 of his will, Bailey states:
6.2. Presently, I have eight (8) children, namely, JAMES P. BAILEY, IV, JOHN R. BAILEY, JEFFREY W. BAILEY, JERALD M. BAILEY, JILL SHANTZLIN, JANET KRUSE, J. PHILIP BAILEY, JASON L. BAILEY, all of whom are adults.
(Emphasis added.) It is undisputed that this statement is incorrect. The record reflects that Demeraski was born in February 1969, that Bailey executed the will at issue in
{¶32} A
{¶33} Based on our examination of the will and consideration of the allegations of Demeraski s complaint, we cannot state that the language of Bailey s will presents an insuperable bar to relief as a matter of law, see, e.g., Abdallah, 2007-Ohio-6065, at ¶ 3; Fairview Realty Investors, 2002-Ohio-6819, at ¶ 8, or that there is no set of facts under
{¶34} Judgment reversed and remanded.
It is ordered that appellant recover from appellees the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, PRESIDING JUDGE
MARY J. BOYLE, J., and
PATRICIA A. BLACKMON, J., CONCUR