In re Estate of Gaskill
John C. Huffman for Appellants
{¶1} Appellants, Rita Williams (“Williams“) and Harry C. Crisp (“Crisp“), in his individual capacity, appeal the March 4, 2019 judgment of the Allen County Court of Common Pleas, Probate Division. For the reasons that follow, we affirm.
{¶2} Frank B. Gaskill (“Gaskill“), Williams and Crisp‘s stepfather, died testate on May 27, 2017. (See Doc. No. 2). On November 3, 2017, Crisp applied to admit Gaskill‘s will to probate and for authority to administer Gaskill‘s estate.1 (Doc. Nos. 2, 4). On November 13, 2017, Gaskill‘s will was admitted to probate, and Crisp was appointed the executor of Gaskill‘s estate. (Doc. Nos. 2, 6). As relevant to this case, Gaskill‘s will provides:
ITEM II
I give, devise and bequeath my entire estate, whether real, personal or mixed, of every kind, nature and description whatsoever, and wheresoever situated, which I may now own or hereafter acquire, or have the right to dispose of at the time of my decease, by power of appointment or otherwise, unto my three step-children, SHARON JOHNSON, RITA WILLIAMS and HARRY C. CRISP, absolutely and in fee simple. If any one of the aforenamed predeceases the
others, his or her share shall be divided equally by the other two. If any two of the aforenamed predecease leaving only one, their shares shall go to the survivor.
(Capitalization sic.) (Doc. No. 2). Although Williams, Crisp, and Sharon Johnson (“Johnson“) each survived Gaskill, Johnson subsequently died on March 4, 2018. (See Doc. Nos. 24, 26, 27).
{¶3} On August 24, 2018, Crisp, as executor of Gaskill‘s estate, filed a complaint in the trial court requesting a construction of Gaskill‘s will. (Doc. No. 38). In the complaint, Crisp noted that some of the “legatees and devisees named in the Will have said that they believe that [Gaskill] intended Item II of the Will to mean that if one of the three legatees and devisees predeceases the others, his or her share shall be divided equally by the other two, notwithstanding the fact that the deceased legatee and devisee survived the testator.” (Id.). Crisp also maintained that there was a belief among the beneficiaries of Gaskill‘s estate that Gaskill “intended Item II of the Will to mean that if any two of the three legatees and devisees predecease the other, leaving only one, their shares shall go to the survivor, notwithstanding the fact that the deceased legatees and devisees survived the testator.” (Id.).
{¶4} On October 9, 2018, Williams filed her answer to the complaint. (Doc. No. 41). On January 9, 2019, Williams filed a “Motion to Construe Will” and a
{¶6} On April 3, 2019, Williams and Crisp filed a notice of appeal. (Doc. No. 55). They raise two assignments of error for our review, which we will address together.
Assignment of Error No. I
The trial court erred by construing the will of Frank Gaskill in a manner that contravened the testator‘s intent to limit his devise to his step-children.
Assignment of Error No. II
The trial court erred in finding that the survivorship language in the will of Frank Gaskill did not create a joint tenancy with rights of survivorship.
{¶7} In their first and second assignments of error, Williams and Crisp argue that the trial court erroneously construed Gaskill‘s will. In their first assignment of error, Williams and Crisp argue that the trial court erred by determining that Johnson‘s interest in Gaskill‘s estate vested at the time of Gaskill‘s death and that,
{¶8} “It is well settled that the construction of a will is a question of law, and thus, we will apply a de novo standard of review.” In re Estate of Stockmaster, 3d Dist. Seneca No. 13-10-43, 2011-Ohio-3006, ¶ 13, citing Woolley v. Woolley, 190 Ohio App.3d 18, 2010-Ohio-4177, ¶ 17 (3d Dist.), citing Dunkel v. Hilyard, 146 Ohio App.3d 414, 418 (4th Dist.), citing McCulloch v. Yost, 148 Ohio St. 675, 677 (1947). “[T]he most fundamental tenet for the construction of a will requires that
{¶9} We begin with Williams and Crisp‘s first assignment of error, in which they contend that the trial court erred by concluding that Johnson‘s interest in Gaskill‘s estate vested at the time of Gaskill‘s death. As Williams and Crisp acknowledge, it is well settled that “‘the law strongly favors the immediate vesting of estates.‘” Stevens v. Radey, 117 Ohio St.3d 65, 2008-Ohio-291, ¶ 11, quoting Ohio Natl. Bank of Columbus v. Boone, 139 Ohio St. 361, 370 (1942). “The rights of the beneficiaries become fixed and certain at the death of the testator unless a
{¶10} After reviewing the entirety of Gaskill‘s will and giving effect, where possible, to every term in the will, we cannot conclude that Gaskill clearly expressed an intention to postpone the vesting of Johnson‘s interest in his estate until some later date. There are no references in Gaskill‘s will to any specific date to which the vesting of Johnson‘s interest was or is to be postponed. (See Doc. No. 2). Furthermore, there is no language in the will explicitly linking the vesting of Johnson‘s interest in Gaskill‘s estate to the occurrence of some future event. (See id.). Thus, as far as can be ascertained from the plain language of Gaskill‘s will, Gaskill did not explicitly communicate an intention to delay the vesting of Johnson‘s interest in his estate.
{¶11} Moreover, in ascertaining a testator‘s intent, “there are certain well recognized rules of construction and interpretation which are presumptively known
{¶12} Nevertheless, Williams and Crisp argue that there is an “exception subordinating this principle of construction to another prevailing principle in the law of estates, which is the will of the testator.” (Appellants’ Brief at 5). They speculate that Gaskill‘s overriding intention was to limit his devise exclusively to his stepchildren, arguing that “[t]he words of survivorship in Item II of the * * * will are the sole manifestation of * * * Gaskill‘s intent, and those words express the intent that Gaskill‘s surviving step-children should be those who divide the share of their deceased co-devisee.” (Id. at 8). Williams and Crisp claim that if Item II of
{¶13} Williams and Crisp‘s argument is without merit. In evaluating Williams and Crisp‘s argument, one case, Renner v. Williams, is particularly instructive. In Renner, the Supreme Court of Ohio was tasked with construing a will that contained survivorship language similar to the survivorship language used in Item II of Gaskill‘s will. There, the testator provided, “In case of the death of either one or more of [three named beneficiaries], the survivor or survivors shall inherit the property bequeathed to them * * *; if more than one survivor, to be divided equally, share and share alike.” 71 Ohio St. 340, 356 (1905). The issue in Renner was whether the survivorship language “relate[d] to the time of the death of the testator, or to the time of distribution, or to the time of the death of any of the devisees there named[.]” Id. at 356-357. The court held that “[w]ords of survivorship in a will prima facie refer to the time of the testator‘s death, because that is the time at which the property to be divided usually comes into enjoyment.” Id. at paragraph one of the syllabus. The court noted, however, that “if the time of payment or distribution * * *, or the time of vesting an estate, be postponed in the
{¶14} As discussed above, Gaskill‘s will does not evince an intention to postpone the vesting of the interests in his estate or to defer payment or distribution of the interests created thereunder. Consequently, the words of survivorship in Item II refer to the time of Gaskill‘s death. Renner at paragraphs one and two of the syllabus. Because the survivorship language in Item II refers to the time of Gaskill‘s death, Gaskill‘s intent to limit his devise to his stepchildren, as expressed through the survivorship language, must also relate to the time of his death. In other words, while the survivorship language in Item II of Gaskill‘s will may express Gaskill‘s intention to limit his devise to his stepchildren who survived him at the time of his death, it does not necessarily evidence his intention to cut off the heirs or devisees of his stepchildren who survived him but died before his estate could be fully
{¶15} In light of the foregoing, we conclude that the trial court did not err by holding that Johnson‘s interest in Gaskill‘s estate vested at Gaskill‘s death. Furthermore, we conclude that Gaskill‘s will does not demonstrate that Gaskill intended to limit his devise to his stepchildren surviving at the time of the distribution of his estate. As a result, we conclude that Gaskill‘s will does not bar Johnson‘s heirs or devisees from receiving Johnson‘s vested share of Gaskill‘s estate solely because Johnson died before Gaskill‘s estate was fully distributed.
{¶16} In their second assignment of error, Williams and Crisp argue that “[i]t is clear from the language of the * * * will that * * * Gaskill intended for his [step]children to own his real property as joint tenants with rights of survivorship because of the words of survivorship included in the will.” (Appellants’ Brief at 12). They argue that even if Gaskill‘s “real property actually did vest upon his death in equal shares to the three step-children named in the will, it did so as a joint tenancy” and that upon Johnson‘s death, “the survivorship language of the will would have vested the real property in [Williams and Crisp].” (Emphasis sic.) (Id. at 13-14).
{¶17} Initially, we note that Williams and Crisp apparently do not argue that Gaskill intended to give rights of survivorship with respect to his personal property. Instead, they argue that the joint tenancy with rights of survivorship supposedly created by Gaskill‘s will is limited to the real property passing under the will.
{¶18} However, after reviewing the entirety of Gaskill‘s will, we conclude that Gaskill did not clearly articulate an intention for Williams, Crisp, and Johnson to take title to his real, or for that matter personal, property as joint tenants with rights of survivorship. The common-law joint tenancy with incidental right of survivorship is not recognized in Ohio. Hutchison at 550; In re Estate of Shelton, 154 Ohio App.3d 188, 2003-Ohio-4593, ¶ 9 (11th Dist.); Spitz v. Rapport, 78 Ohio App.3d 330, 333 (8th Dist.1992) (“[T]here is no common-law joint tenancy with right of survivorship in Ohio.“); Huntington Natl. Bank v. Hebeka, 6th Dist. Lucas No. L-90-318, 1992 WL 173276, *4 (July 24, 1992) (“Ohio had never recognized joint tenancies * * * until the Legislature, in 1972, enacted former
{¶19} Nevertheless, while Ohio has never embraced the common-law joint tenancy with its incidental right of survivorship, it is well established that “parties may * * * contract for a joint ownership with the right of survivorship.” Hutchison at paragraph two of the syllabus; Shelton at ¶ 18. If “a donor or grantor, by the operative words of the gift or grant, clearly expresses an intention to give the right of survivorship, such words will not be disregarded.” (Emphasis added.) Hutchison at 552. Therefore, “at the death of one of the joint owners the survivor succeeds to
{¶20} This principle—that a grantor, donor, or testator may expressly provide for rights of survivorship in his grantees, donees, or beneficiaries—serves as the foundation for the “survivorship tenancy,” a creation of Ohio statutory law that shares some features with the common-law joint tenancy. Under
{¶21} In this case, the survivorship language contained in Item II of Gaskill‘s will does not evidence a clear intention to create a survivorship tenancy in Williams, Crisp, and Johnson. Instead, even assuming that this language can conceivably be read as expressing an intention to create a survivorship tenancy in Williams, Crisp, and Johnson, it can also be reasonably interpreted as evidencing Gaskill‘s desire to avoid operation of
Unless a contrary intent appears in the will, if a devisee fails to survive the testator and is a * * * stepchild of * * * the testator * * * [and] [i]f 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.
{¶23} Various formulations of survivorship language have been found sufficient to indicate an intent to avoid the anti-lapse statute. For example, one court
{¶24} Whether the survivorship language in Item II of Gaskill‘s will adequately expresses an intention to avoid application of the anti-lapse statute is not at issue in this case. Thus, we do not decide whether the survivorship language in Item II is sufficient to escape operation of the anti-lapse statute. Instead, we introduce the above-cited authority merely to illustrate that the survivorship language in Item II of Gaskill‘s will can be reasonably interpreted as evidencing Gaskill‘s desire to avoid operation of the anti-lapse statute, rather than as indicating Gaskill‘s intent to create a survivorship tenancy in Williams, Crisp, and Johnson. In fact, the anti-lapse-statute-avoidance interpretation is perhaps the more natural interpretation because the method of distributing Gaskill‘s property provided for by the survivorship language is consistent with how one would expect Gaskill‘s property to be distributed if Williams, Crisp, or Johnson predeceased Gaskill and the anti-lapse statute did not apply. That is, assuming that the anti-lapse statute does not apply to Gaskill‘s will, if any one or more of Gaskill‘s stepchildren predeceased Gaskill, leaving one or more of them alive, the share or shares of the predeceasing
{¶25} Accordingly, although we do not determine whether the survivorship language in Item II is sufficient to express an intention to avoid operation of the anti-lapse statute, we believe that it is susceptible of such an interpretation. Given this second plausible interpretation, we cannot conclude that Item II of Gaskill‘s will contains language showing a clear intent to create a survivorship tenancy with respect to the real property devised to Williams, Crisp, and Johnson. See Hutchison, 120 Ohio St. at 551-552; Reif, 86 Ohio App.3d at 807-808;
{¶27} Having found no error prejudicial to the appellants herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
ZIMMERMAN, P.J. and WILLAMOWSKI, J., concur.