Kretzer v. Brubaker

No. 94-2039 | Ohio | Feb 14, 1996

Moyer, C.J.

In this case, we are asked to determine whether an agreement to make a will or the actual will itself controls in determining the intent of the testator.

We have held that a valid contract to make a will may be specifically enforced against the heirs of the promisor if a will is not executed. Emery v. Darling (1893), 50 Ohio St. 160, 165, 33 N.E. 715, 716. Both parties have stipulated that the agreement to make a -will (“the agreement”), executed by Earl and Nettie Brubaker in 1956, is valid and enforceable. However, in the instant case, Earl Brubaker did make a valid will contemporaneously with executing the agreement. Thus, the issue becomes whether the agreement and the will are in conflict with each other.

It is well established that “[t]he cardinal rule of interpretation of a will is to ascertain the meaning and intention of the testator.” Anderson v. Gibson (1927), 116 Ohio St. 684" court="Ohio" date_filed="1927-06-01" href="https://app.midpage.ai/document/anderson-v-gibson-3780915?utm_source=webapp" opinion_id="3780915">116 Ohio St. 684, 157 N.E. 377, paragraph one of the syllabus. The agreement, incorporated into the will by reference, provides that “in consideration for such sale of the above described premises at such reduced price the undersigned have agreed with said brothers and sisters of the said Earl E. Brubaker, that Wills shall be set-up by the undersigned providing for the keeping of title in the above described premises on the Brubaker side of the family, and, * * * such Wills have been made on this date by the undersigned, containing such provisions^] * * * ” (Emphasis added.) Finally, the agreement provides that “it is mutually understood between the undersigned that such Wills as are this date executed may be changed in any way by the undersigned as long as such changes do not effect [sic ] the agreement entered into herein for keeping the above described premises titled in the Brubaker side of the family.” (Emphasis added.)

In his will, Earl Brubaker devised the family farm to Nettie “absolutely and in fee simple, it being understood as between my beloved wife and myself, that my said wife shall provide a home for my sister, Sarah J. Brubaker, if my said sister shall be living at the time of my decease and providing further that my said wife, under a written agreement entered into this date between my wife and me and my brothers and sisters wherein both my wife and I have agreed that the above described premises shall remain titled in the Brubaker side of our family and under which agreement my wife has agreed not to change her Will made this date, leaving the above described real estate to the Brubaker side of the family, if I have predeceased her. * * *

“If my beloved wife, Nettie Brubaker, has predeceased me, I then give and devise the above described real property, absolutely and in fee simple, to my blood nephews, living at the time of my decease, share and share alike, and request that such real property not be sold to a stranger, but that such nephews shall sell their interest in said property to one or more of my blood nephews who may be willing to purchase such property from the other devisees.” (Emphasis added.)

We discern no conflict between the promises of the agreement and the devises of the will. When interpreting a will, this court has held that “if that language is such that its meaning is clear, and if the words employed are unequivocal and unambiguous, they should be given their ordinary meaning and natural effect[.]” Anderson at 687, 157 N.E. 377" court="Ohio" date_filed="1927-06-01" href="https://app.midpage.ai/document/anderson-v-gibson-3780915?utm_source=webapp" opinion_id="3780915">157 N.E. at 378. The language in the agreement establishes a class of devisees in providing that the title to the family farm is to remain “on the Brubaker side of the family.” The will would unambiguously comply with the intent of the agreement, whether Earl devised the farm to some, one or all members of “the Brubaker side of the family,” so long as the will was drafted consistently with that general limitation. Thus, the will satisfies that requirement by devising the property to a narrow subset of the broad class, namely, the “blood nephews” of Earl Brubaker.

The judgment of the court of appeals is affirmed.

Judgment affirmed.

Douglas, Wright, Resnick, F.E. Sweeney, Pfeifer and Cook, JJ., concur.