Diller v. DillerDiller v. Diller
APPEARANCES:
Paul E. Howell for Appellant, Mary Ann Diller
Travis J. Faber and John R. Willamowski, Jr. for Appellant, Phyllis Diller
J. Alan Smith and Ashley R. Doty for
MILLER, J.
{1} Plaintiff-appellant, Mary Ann Diller, appeals the March 18, 2021 judgment of the Mercer County Court of Common Pleas, Probate Division. Defendant-appellant, Phyllis Diller, in her capacity as co-executor of the estate of Theodore C. Penno, appeals the same judgment.1 In this appeal, the court is called upon as the first court to interpret the meaning of the term “devise” as used in Ohio‘s anti-lapse statute,
{2} On May 15, 2019, Theodore C. Penno died testate at the age of 78. Theodore‘s will, which he executed on February 10, 1998, provides in relevant part:
ITEM II. I hereby give, devise and bequeath my farm located in Butler Township, Mercer County, Ohio, and any interest that I may have in any farm chattel property to my brother, JOHN PENNO.
ITEM III. All the rest, residue, and remainder of my property, real and personal, of every kind, nature, and description, wheresoever situated, which I may own or have the right to dispose of at the time of my decease, I give, devise, and bequeath equally to my brother, JOHN PENNO and my sister, MARY ANN DILLER, absolutely and in fee simple, share and share alike therein, per stirpes.
* * *
ITEM V. I hereby appoint my niece, LINDA PENNUCCI and my niece, PHYLLIS DILLER, or the survivor of them, as Co-Executors of this my Last Will and Testament.
(Capitalization, boldface, and underlining sic.). Although Mary Ann Diller survived Theodore, John Penno predeceased Theodore on July 18, 2016, leaving defendants-appellees, David Penno and Linda Pennucci, as his only surviving children.
{3} On August 27, 2019, Theodore‘s will was admitted to probate. That same day, Phyllis Diller and Linda were appointed to serve as co-executors of Theodore‘s estate pursuant to Item V of Theodore‘s will.
{4} On October 23, 2019, Mary Ann filed a complaint for declaratory judgment and for construction of Theodore‘s will. Mary Ann named Phyllis, Linda, and David as defendants in the action. Phyllis was named as a defendant solely in her capacity as co-executor. Linda was named as a defendant both individually and in her capacity as co-executor. David was named as a defendant solely in his individual capacity. In her complaint, Mary Ann averred that Theodore‘s will, “construed as a whole and considering its specific language, evidences [Theodore‘s] intent that the gift to [John] in Item II was to lapse in the event [John] died before [Theodore].” That is, she claimed that Theodore intended for the anti-lapse statute,
{5} Phyllis, David, and Linda then filed their answers to Mary Ann‘s complaint. In addition, David joined with Linda, in her individual capacity, to file a counterclaim for declaratory judgment. In their counterclaim, David and Linda averred that
{6} On December 4, 2019, Mary Ann filed a reply to David and Linda‘s counterclaim. In her reply, Mary Ann introduced a new argument to support her proffered construction of Theodore‘s will. Specifically, she asserted that the gift to John in Item II of Theodore‘s will is not a “devise” as defined in
{7} Because the parties agreed that the trial court could resolve the competing claims without conducting an evidentiary hearing, the trial court promptly set a briefing schedule. On January 17, 2020, Mary Ann filed a memorandum in support of her claims for declaratory judgment and construction of Theodore‘s will. In her memorandum in support, Mary Ann further developed the two separate lines of argument first set forth in her complaint and reply. With respect to her contention that the gift to John in Item II of Theodore‘s will does not constitute a “devise,” Mary Ann clarified that she was arguing that the gift to John was a “primary devise,” which does not meet
{8} On May 21, 2020, oral arguments were held before a magistrate. On December 7, 2020, the magistrate issued a decision declining to adopt Mary Ann and Phyllis‘s interpretation of
{9} After being granted extensions to file objections, Mary Ann and Phyllis each filed objections to the magistrate‘s decision on December 28, 2020. The trial court heard oral arguments on Mary Ann‘s and Phyllis‘s objections on March 11, 2021. On March 18, 2021, the trial court, in a judgment entry consisting mostly of its own de novo analysis, rejected Mary Ann‘s and Phyllis‘s arguments. The trial court concluded that
II. Assignments of Error
{10} On April 7, 2021, Mary Ann filed a notice of appeal. She raises the following assignments of error for our review:
- The trial court erred by misinterpreting Ohio‘s Anti-Lapse Statute‘s definition of “devise” in
R.C. 2107.52(A)(3) and thereby concluding that the Statute applied to the testamentary gift which would have otherwise lapsed under Item II of the testator‘s will. (See trial court‘s “Judgment Entry“, pp. 3 and 4). - The trial court erred by misconstruing the Anti-Lapse Statute‘s “contrary intent” provision of
R.C. 2107.52(B)(2) and failing to follow Ohio common law to ascertain whether it appeared in the will itself that the testator never intended any substitute gift under Item II. (See trial court‘s “Judgment Entry“, pp. 2 and 3).
{11} On April 8, 2021, Phyllis filed a separate notice of appeal. She raises the following assignments of error for our review:
- The Trial Court erred by applying Ohio‘s Anti-Lapse Statute (
R.C. § 2107.52 ) to Item II of the Last Will and Testament of Theodore C. Penno. - The Trial Court erred in finding that prior versions of Ohio‘s Anti-Lapse Statute (
R.C. § 2107.52 ) apply toItem II of the Last Will and Testament of Theodore C. Penno. - The Trial Court erred by applying facts outside of the four corners of the will to determine the intent of the testator.
{12} Mary Ann‘s assignments of error and Phyllis‘s assignments of error overlap in many respects. For ease of discussion, we first address Phyllis‘s second assignment of error. We then address Mary Ann‘s and Phyllis‘s first assignments of error together. Finally, if necessary, we will consider Mary Ann‘s second assignment of error and Phyllis‘s third assignment of error together.
III. Discussion
A. Phyllis‘s Second Assignment of Error: Which version of R.C. 2107.52 applies in this case?
{13} In her second assignment of error, Phyllis argues that the trial court did not apply the appropriate version of
i. The Common-Law Rule of Lapse & the History of Ohio‘s Anti-lapse Statutes
{14} At common law, a devise2 given to a person who predeceases the testator is said to “lapse.” The common-law rule of lapse rests on the proposition that because “[a] donative transfer cannot be made to a deceased person” and “probate transfers take place at the decedent‘s death, [probate transfers] cannot be made to an individual who fails to survive the decedent.” Restatement of the Law
3d, Property, Wills & Donative Transfers, Section 1.2, Comment a (1999). A lapsed devise does not become part of a predeceased devisee‘s estate, to be distributed among the predeceased devisee‘s heirs or beneficiaries. Instead, depending on the circumstances, the lapsed devise either falls into the residue of the testator‘s estate, where it is distributed pursuant to the terms of a residuary clause, or passes to the testator‘s heirs through intestate succession.3 See Margolis v. Pagano, 39 Ohio Misc.2d 1, 3-4 (C.P.1986); Shalkhauser v. Beach, 14 Ohio Misc. 1, 3 (P.C.1968).
{15} Despite its historical pedigree, the common-law rule of lapse has long been
The rule as to the lapsing of devises and legacies that prevailed before the statute defeated, in most cases, the intention of the testator. He generally made his will with reference to the objects of his bounty as they existed at the time, and as though his will took effect at the date of its execution, not apprehending that a lapse would occur in case any of them should die before himself, unless some express disposition should be made in anticipation of such event. The statute was passed to remedy such disappointments, and should receive a
liberal construction, so as to advance the remedy and suppress the mischief. It, among other things, provides that, where a devise is made to a child or other relative of the testator who dies before the testator, the issue of such object of his bounty shall take the portion devised to such child or relative. Nothing is more just and conformable to the probable intention of the testator in every instance. The fact that the child or relative is not mentioned by name should not defeat the application of the statute where the language applied to the facts, as they were at the execution of the will, designates a child or relative as an object of the testator‘s bounty with as much certainty as if it were mentioned by name.
Woolley v. Paxson, 46 Ohio St. 307, 314 (1889).
{16} Ohio‘s anti-lapse statute has been repealed, reenacted, and revised many times since its original enactment in 1840. See id. at 313; see also West v. Aigler, 127 Ohio St. 370, 376-377 (1933); Cochrel v. Robinson, 113 Ohio St. 526, 536 (1925). Since 1953, Ohio‘s anti-lapse statute pertaining to wills has been codified at
ii. By its own terms, the 2019 version of R.C. 2107.52 applies in effectuating the provisions of Theodore‘s will because he died after March 22, 2012.
{17} Phyllis insists the trial court erroneously applied the 1992 version of
{18} Nevertheless, because David and Linda maintain that this court must look to the 1992 version of
{19} First, the 2019 version of
{20} In addition, long-settled principles of the law of wills reinforce that the 2019 version of
{21} Nonetheless, the 1992 version of
{22} We find the trial court properly applied the law in effect at the time of Theodore‘s death, i.e., the 2019 version of
B. Mary Ann‘s and Phyllis‘s First Assignments of Error: Is the gift to John in Item II of Theodore‘s will a “devise” as defined by R.C. 2107.52(A)(3), from which a substitute gift can be created in favor of David and Linda?
{23} In their respective first assignments of error, Mary Ann and Phyllis argue that the trial court erred by concluding that the substitute-gift provisions of
(A) As used in this section:
* * *
(3) “Devise” means an alternative devise, a devise in the form of a class gift, or an exercise of a power of appointment.
* * *
(B)
* * *
(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, * * * the following applies:
(a) If the devise is not in the form of a class gift and the deceased devisee leaves surviving descendants, a substitute gift is created in the devisee‘s surviving descendants. The surviving descendants take, per stirpes, the property to which the devisee would have been entitled had the devisee survived the testator.
{24} Mary Ann and Phyllis recognize that if
{25} However, Mary Ann and Phyllis contend that
{26} Accordingly, to resolve this case, we must first determine whether
i. General Principles of Statutory Interpretation
{27} The issues presented in Mary Ann‘s and Phyllis‘s first assignments of error are primarily issues of statutory interpretation. “The interpretation of a statute is a question of law that we review de novo.” Stewart v. Vivian, 151 Ohio St.3d 574, 2017-Ohio-7526, ¶ 23. “De novo review is independent and without deference to the trial court‘s judgment.” City Rentals, Inc. v. Kesler, 191 Ohio App.3d 474, 2010-Ohio-6264, ¶ 11 (3d Dist.).
{28} The goal of statutory interpretation is to ascertain and give effect to the General Assembly‘s intent in enacting the statute. State v. Lowe, 112 Ohio St.3d 507, 2007-Ohio-606, ¶ 9. “The intent of the General Assembly must be determined primarily from the language of the statute itself.” Stewart at ¶ 24. This is because we must “presume that a legislature says in a statute what it means and means in a statute what it says there.” Connecticut Natl. Bank v. Germain, 503 U.S. 249, 253-254 (1992). “When the statutory language is plain and unambiguous, and conveys a clear and definite meaning, we must rely on what the General Assembly has said.” Jones v. Action Coupling & Equip., Inc., 98 Ohio St.3d 330, 2003-Ohio-1099, ¶ 12.
“In the case of such unambiguity, it is the established policy of the courts to regard the statute as meaning what it says, and to avoid giving it any other construction than that which its words demand. The plain and obvious meaning of the language used is not only the safest guide to follow in construing it, but it has been presumed conclusively that the clear and explicit terms of a statute expresses [sic] the legislative intention, so that such plain and obvious provisions must control.”
(Bracketed material in original.) Jasinsky v. Potts, 153 Ohio St. 529, 534 (1950), quoting 50 American Jurisprudence 2d, Section 225, at 205 (1944). Where the meaning of a statute is plain and unambiguous, the statute “is to be applied, not interpreted.” McConnell v. Dudley, 158 Ohio St.3d 388, 2019-Ohio-4740, ¶ 19, quoting Sears v. Weimer, 143 Ohio St. 312 (1944), paragraph five of the syllabus.
{29} When reviewing a statute, the court must refrain from “pick[ing] out one sentence and disassociat[ing] it from the context * * *.” State v. Wilson, 77 Ohio St.3d 334, 336 (1997). Instead, “[i]n ascertaining the plain meaning of [a] statute, the court must look to the particular statutory language at issue, as well as the language and design of the statute as a whole.” K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988). In this endeavor, “significance and effect should if possible be accorded every word, phrase, sentence and part of an act.” Wachendorf v. Shaver, 149 Ohio St. 231, 237 (1948).
{30} Generally, statutes in derogation of the common law, such as
ii. R.C. 2107.52(B)(2)(a) is meant to incorporate R.C. 2107.52(A)(3)‘s definition of “devise.”
{31} We begin our analysis by establishing what sort of meaning to give to the word “devise” in
{32} When determining the plain meaning of a statute, courts must rely on legislative definitions because a “definition by the average man or even by the ordinary dictionary with its studied enumeration of subtle shades of meaning is not a substitute for the definition set before us by the lawmakers with instructions to apply it to the exclusion of all others.” Fox v. Std. Oil Co. of New Jersey, 294 U.S. 87, 96 (1935). Therefore, “[d]efinitions provided by the General Assembly are to be given great deference in deciding the scope of particular terms.” Montgomery Cty. Bd. of Commrs. v. Pub. Util. Comm., 28 Ohio St.3d 171, 175 (1986). In most cases, “[s]tatutory definitions of terms are controlling in the application of the statute to which such definitions pertain.” Woman‘s Internatl. Bowling Congress, Inc. v. Porterfield, 25 Ohio St.2d 271, 275 (1971). This is so even if a definition is at odds with the ordinary meaning of the defined term or with the meaning given to the same term in other statutes. Digital Realty Trust, Inc. v. Somers, 583 U.S. 149 (2018).
Somers, 583 U.S. ___, 138 S.Ct. 767, 776-777 (2018), quoting Burgess v. United States, 553 U.S. 124, 130, 128 S.Ct. 1572 (2008); Good Samaritan Hosp. of Dayton v. Porterfield, 29 Ohio St.2d 25, 30 (1972). Only in rare circumstances is a legislative definition not conclusive. See, e.g., Lawson v. Suwannee Fruit & S.S. Co., 336 U.S. 198, 201, 69 S.Ct. 503 (1949) (declining to apply a statutory definition “in a mechanical fashion” because it would “create obvious incongruities in the language” and “destroy one of the major purposes” of the statute).
{33} Here, it is plain that the General Assembly intended to incorporate
iii. R.C. 2107.52(A)(3) sets forth an exhaustive list of the kinds of testamentary gifts that qualify as “devises” for purposes of R.C. 2107.52(B)(2)(a) .
{34} Because we start with an expectation that the word “devise” in
{35} To better understand Mary Ann and Phyllis‘s argument, we first survey the four categories of testamentary gifts at issue. A “primary devise” is a “devise to the first person named as taker.”7 PRIMARY DEVISE, Black‘s Law Dictionary (11th Ed.2019). In contrast, an “alternative devise” is a “devise that, under the terms of the will, is designed to displace another devise if one or more specified events occur.” ALTERNATIVE DEVISE, Black‘s Law Dictionary (11th Ed.2019). An alternative devise necessarily follows a primary devise. “For example, a devise of ‘Blackacre to A, but if A does not survive me then to B’ names A as the recipient of the primary devise and B as the recipient of the * * * alternative devise.” PRIMARY DEVISE, Black‘s Law Dictionary (11th Ed.2019). A “class gift” is a “gift to a group of persons, uncertain in number at the time of the gift but to be ascertained at a future time, who are all to take in definite proportions, the share of each being dependent on the ultimate number in the group.” CLASS GIFT, Black‘s Law Dictionary (11th Ed.2019). Finally, a “power of appointment” is a “power created or reserved by a person having property subject to disposition, enabling the donee of the power to designate transferees of the property or shares in which it will be received; esp., a power conferred on a donee by will * * * to select and determine one or more recipients of the donor‘s estate[.]” POWER OF APPOINTMENT, Black‘s Law Dictionary (11th Ed.2019).
{36} According to Mary Ann and Phyllis, because each of the terms used in
{37} Where we are confronted with a statutorily defined term as we are in this case, we treat the statutorily defined term no differently than we treat other statutory provisions—“[w]hen the text of the statute in question is plain and unambiguous, * * * we give effect to the
a. The word “means” in R.C. 2107.52(A)(3) is a word of restriction, rather than a word of illustration or expansion.
{38} The particular language used to introduce
{39} By contrast, when “a definitional section says that a word ‘means’ something, the clear import is that this is its only meaning.” (Emphasis sic.) Scalia & Garner, Reading Law: The Interpretation of Legal Texts, 226 (2012). Therefore, ““[a]s a rule, [a] definition which declares what a term “means” * * * excludes any meaning that is not stated.“” Burgess, 553 U.S. at 130, quoting Colautti v. Franklin, 439 U.S. 379, 392-393, 99 S.Ct. 675 (1979), fn. 10; see Groman v. Commissioner of Internal Revenue, 302 U.S. 82, 86, 58 S.Ct. 108 (1937) (“[W]hen an exclusive definition is intended the word ‘means’ is employed, * * * whereas here the word used is ‘includes.‘“). A statutory definition declaring what a term “means” is less susceptible of extension by construction than a definition declaring what a
{40} Here, under
b. Varying use of the words “means” and “includes” in R.C. 2107.52(A) suggests that the word “means” is used when an exhaustive definition is intended.
{41} The rest of
{42} In general, when the legislature uses particular language in one part of a statute but omits that language in another part of the statute or uses different language, it is presumed that the legislature did so intentionally and purposely. Hulsmeyer v. Hospice of Southwest Ohio, Inc., 142 Ohio St.3d 236, 2014-Ohio-5511, ¶ 26; NACCO Industries, Inc. v. Tracy, 79 Ohio St.3d 314, 316 (1997). The General Assembly must be presumed “to know the meaning of words, to have used the words of a statute advisedly and to have expressed legislative intent by the use of the words found in the statute * * *.” Wachendorf, 149 Ohio St. at 237.
{43} Accordingly, we presume that the General Assembly was familiar with the differing meanings of the words “means” and “includes” when it enacted
{44} Given that
iv. R.C. 2107.52(A)(3) ‘s definition of “devise” cannot be read out of R.C. 2107.52(B)(2)(a) on the basis that using it produces absurd results or defeats the purpose of R.C. 2107.52 .
{45} At various points throughout their appellate brief, David and Linda assert that it would be “absurd” to interpret and apply
{46} “The absurd result principle in statutory interpretation provides an exception to the rule that a statute should be interpreted according to its plain meaning.” (Emphasis deleted.) State ex rel. Clay v. Cuyahoga Cty. Med. Examiner‘s Office, 152 Ohio St.3d 163, 2017-Ohio-8714, ¶ 22 (plurality opinion), quoting Dougherty, Absurdity and the Limits of Literalism: Defining the Absurd Result Principle in Statutory Interpretation, 44 Am.U.L.Rev. 127 (1994). “It is premised on a guiding principle of statutory construction: that when the General Assembly enacts a statute, it does not intend to produce an absurd result.” Id., citing
Moreover, “even if the plain-language application of a statute would yield an absurd result, the absurdity doctrine does not permit a court to correct the absurdity unless it is ‘reparable by changing or supplying a particular word or phrase whose inclusion or omission was obviously a technical or ministerial error * * *. The doctrine does not include substantive errors arising from a drafter‘s failure to appreciate the effect of certain provisions.“”
Id., quoting State v. Parker, 157 Ohio St.3d 460, 2019-Ohio-3848, ¶ 28 (lead opinion), quoting Scalia & Garner, Reading Law: The Interpretation of Legal Texts, 238 (2012).
{47} Here, the plain language of
{48} As we discuss near the conclusion of this opinion, we question whether the General Assembly intended this result. Nevertheless, even if this result was unintended, we could not use the absurdity doctrine to correct the General Assembly‘s oversight. This is because the cause of the supposed absurdity,
{49} As in
{50} The definitions in
{51} In our view, the differences and similarities between
{52} As a final matter, we dispense with any suggestion that we should decline to apply
{53} In
{54} Nonetheless, this interpretation and application of
v. Because the gift to John in Item II of Theodore‘s will is not a “devise” as defined in
{55} The parties agree that since the gift to John in Item II of Theodore‘s will is to an individual rather than to a class of persons,
{56} The gift to John in Item II of Theodore‘s will is neither an alternative devise nor an exercise of a power of appointment. Instead, because it is to John as “the first person named as taker,” it is a primary devise. Accordingly, because the gift to John is not an alternative devise or an exercise of a power of appointment, it does not constitute a “devise.” Because the gift to John in Item II of Theodore‘s will does not qualify as a “devise,”
{57} We acknowledge that this result may not have been what the General Assembly intended when it enacted the 2019 version of
{59} Mary Ann‘s and Phyllis‘s first assignments of error are sustained.
C. Mary Ann‘s Second and Phyllis‘s Third Assignments of Error: In construing Theodore‘s will, did the trial court err by finding that Theodore intended for R.C. 2107.52 to apply to the gift to John in Item II of his will?
{60} In Mary Ann‘s second and Phyllis‘s third assignments of error, they argue that the trial court misconstrued Theodore‘s will and that, in his will, Theodore expressed his intention for the substitute-gift provisions of
IV. Conclusion
{61} For the foregoing reasons, Phyllis‘s second assignment of error is overruled,
Judgment Reversed and Cause Remanded
ZIMMERMAN and SHAW, J.J., concur.
/jlr