624 N.E.2d 361 | Ohio Ct. App. | 1993
Lead Opinion
This is an appeal from a judgment entered by the Common Pleas Court of Lawrence County, Probate-Juvenile Division, overruling a motion to vacate a certificate of transfer previously issued and filed in the estate of Clifford Derifield, deceased. The following errors have been assigned for our review:
"I. The probate court erred in concluding the second clause of testator's will not to have constituted a valid residuary clause.
"II. The probate court erred in not vacating the transfer of burial lots, as said lots do not pass under the general residuary clause contained in a testator's will, but descend to the heirs of the testator as intestate property."
The record reveals the following facts pertinent to this appeal. Clifford Derifield (hereinafter referred to as "the decedent") died in May 1985. The decedent left four adult children as heirs at law and no surviving spouse. On August 16, 1985, Lois Hopper, one of decedent's daughters, made application with the court below to probate her father's last will and testament. The will was admitted into probate and, subsequently, the estate was relieved from administration.1 The assets of the estate were then, presumably, transferred or delivered to Lois Hopper, who was named sole beneficiary in the will. *561
On March 5, 1992, Noah Dean Hopper, the surviving spouse of Lois Hopper and appellee herein, made application to reopen the estate and to have himself appointed "successor commissioner."2 Appellee sought to have the decedent's interest in several burial lots at Highland Memorial Gardens in South Point, Ohio, transferred to himself as his wife's heir. The lower court granted the application and, on May 18, 1992, approved the distribution and transfer of those lots to appellee.
On July 8, 1992, Lonnie Nixon, another of decedent's daughters and appellant herein, filed a motion to vacate the transfer. Appellant argued that the burial lots would descend to all the decedent's heirs rather than pass by testamentary bequest to a residual beneficiary. Appellee filed a memorandum contra, arguing that the clear intent of the decedent was for all property, including interests in burial lots, to pass to Lois Hopper. On August 19, 1992, the lower court issued its decision, holding that burial lots do not pass under a residuary clause in a will. However, the court reasoned, Lois Hopper was bequeathed "everything" in the decedent's estate and did not acquire the lots through a "residual" bequest. The court then concluded that the lots had been properly transferred to Lois Hopper and that appellant's motion to vacate the transfer should be denied. A judgment to that effect was entered on September 9, 1992, and this appeal followed.
The method by which ownership interests in burial lots pass, at death, to successive generations is a topic which has received little treatment under the law of Ohio or that of other jurisdictions. Nevertheless, the general rule appears to be that burial lots do not pass under a general or residuary clause in a will but rather pass to the heirs at law of the testator as if he had died intestate. See 14 Ohio Jurisprudence 3d (1979) 355, Cemeteries and Dead Bodies, Section 52; see, also, Annotation (1969), 26 A.L.R. 3d 1425, 1426-1427. The lower court relied on this rule in reaching its decision and both parties agree that it is a correct statement of the law.3 *562
The real conflict between the parties is whether the decedent's bequest to Lois Hopper was residual in nature so as to bring such rule into play. Both assignments of error address this issue and we shall consider them together. At the outset, it is not entirely clear to us that the disposition of this case would depend on the testamentary provision being characterized as "residuary" or non-residuary. The rule that burial-lot interests pass as if by intestate succession is said to apply to bothgeneral and residuary devises. See Annotation, supra, 26 A.L.R.3d at 1426-1427. Assuming arguendo that such characterization is crucial to the outcome of this case, we note the following portion of the decedent's will:
"All the rest, residue and remainder of my property, real and personal, owned by me at the time of my death or over which I may have power of disposition, I give, devise and bequeath to my beloved daughter, Lois Ann Hopper, to be hers absolutely and forever, if she survives me by at least two (2) months."
The words "all the rest, residue and remainder" are generally indicative of a residuary clause in a will. See 32 Ohio Jurisprudence 3d (1981) 280, Decedent's Estates, Section 787. The lower court correctly defined such a clause as one which disposes of that part of the testator's estate which remains after satisfaction of all previous bequests and devises. SeeCollins v. Patton (App. 1952), 64 Ohio Law. Abs. 518, 519, 113 N.E.2d 100, 102. The court then apparently carried this definition one step further and reasoned that a clause could not properly be deemed "residuary" unless there was some other devise or bequest specified in the will. It was noted that there were no other bequests in the decedent's will and, therefore, Lois Hopper took "everything" in the estate rather than the "remains" of the estate. The court then concluded that the decedent's bequest to his daughter was not a "residuary" clause. Appellant now argues that the lower court was operating under too stringent a definition of "residuary clause" by requiring the existence of some other bequest in addition to that clause disposing of the residual estate. We agree. *563
Generally speaking, a residuary clause disposes of all the testator's estate for which there has not been some previous disposition. See Newman v. Newman (P.C.1964), 94 Ohio Law. Abs. 321, 332, 28 O.O.2d 154, 160, 199 N.E.2d 904, 912. A residuary legatee can just as easily be one who takes the entire estate as one who takes the remaining estate after numerous specific bequests. Although a residuary clause, in a strict sense, would seem to presuppose prior particular bequests or devises, a bequest of "all" of the testator's property or estate is also treated as a residuary clause. Jackson v. Jackson (1975),
An examination of decedent's will in light of these principles clearly shows that Lois Hopper was the residual legatee. Ownership interests in burial lots, as aforesaid, do not pass under the residuary clause of a will. Rather, they pass to the heirs at law of the testator as if he had died intestate. The lower court erred in not vacating the previous transfer of such interests to appellee. Accordingly, the two assignments of error are sustained, the judgment is reversed, and this cause is remanded to the probate court for further action to vacate the previous transfer of the burial lots.
Judgment reversedand cause remanded.
PETER B. ABELE, J., concurs.
HARSHA, P.J., concurs in judgment only.
Concurrence Opinion
I concur in judgment only since I am not totally convinced in the wisdom and binding nature of the general rule that burial plots pass to the heirs at law rather than general or residual legatees. However, since the parties here appear to be content with such a rule, we need not address its application in this jurisdiction. *564
