THE STATE EX REL. LEE ET AL., APPELLANTS, v. MONTGOMERY, ATTORNEY GENERAL, APPELLEE.
No. 99-1760
SUPREME COURT OF OHIO
Submitted February 23, 2000—Decided March 22, 2000.
88 Ohio St.3d 233 | 2000-Ohio-316
APPEAL from the Court of Appeals for Franklin County, No. 98AP-1516.
{¶ 2} Havighurst bequeathed the remainder of his estate to his designated trustee, First National Bank of Southwestern Ohio (“First National“), to create a charitable trust known as the “Walter E. Havighurst Fund,” which would “promote and fund educational projects through the Miami University International Center, Oxford, Ohio, for building cross-cultural understanding between the peoples of the United States of America and the Union of Soviet Socialist Republics.” Under the terms of the trust, the President of Miami University, within specified guidelines, was vested with the “sole discretion to determine the nature of said projects * * * and to determine the amounts necessary to fund said projects.”
{¶ 3} On February 3, 1994, Havighurst died, leaving assets valued at over six million dollars. His will was admitted to probate.
{¶ 5} In February 1996, the probate court entered a judgment declaring that Havighurst‘s will created a charitable trust, that the trust be fully funded and carried out in accordance with its terms, and that the terms “Union of Soviet Socialist Republics,” “Soviet Union,” and “Soviet” used in the trust be construed to mean “former Union of Soviet Socialist Republics” and “former Soviet Union.” On aрpeal by the heirs, the court of appeals affirmed the judgment of the probate court, and this court and the Supreme Court of the United States declined jurisdiction over the heirs’ further appeals. First Natl. Bank of Southwestern Ohio v. Miami Univ. (1997), 121 Ohio App.3d 170, 699 N.E.2d 523, discretionary appeal not allowed (1997), 80 Ohio St.3d 1411, 684 N.E.2d 704, certiorari denied (1998), 525 U.S. __, 119 S.Ct. 70, 142 L.Ed.2d 55. Appellant, Martha Lee, an attorney, had represented one of the heirs during the probate court proceeding and, eventually, both of the heirs in the appellate process.
{¶ 6} In November 1998, while her appeal on behalf of the Havighurst heirs in the probate court proceeding was still pending in the United States Supreme Court, Lee filed a complaint in the Court of Appeals for Franklin County in her individual capacity as well as her capacity as representative of unidentified
{¶ 7} This cause is now before the court upon an appeal as of right.
Martha C. Lee, pro se.
Betty D. Montgomery, Attorney General, and Monica A. Moloney, Assistant Attorney General, for appellee.
Per Curiam.
{¶ 8} Lee asserts that the court of appeals erred in denying the requested writ of mandamus. Lee‘s preeminent claim is for a writ of mandamus to compel the Attorney General to “take such action as is necessary * * * to resolve the matter of identifying the rest of the members of the ‘class of beneficiaries’ ” of the charitable trust. Lee contends that the Attorney General has a clear legal duty to bring an actiоn to define the other beneficiaries of the trust besides Miami University. Lee further contends that the Attorney General has a clear legal duty to move to vacate the probate сourt judgment because necessary parties, i.e., the other trust beneficiaries, were not represented in that case.
{¶ 10}
“The attorney general may investigate transactions and relationships of trustees of a chаritable trust for the purpose of determining whether the property held for charitable, religious, or educational purposes has been and is being properly administered in acсordance with fiduciary principles as established by the courts and statutes of this state. * * *
” * * *
“The attorney general shall institute and prosecute a proper action to enforce the performance of any charitable trust, and to restrain the abuse of it whenever he considers such action advisable or if directed to do so by the governor, the supreme court, the general assembly, or either house of the general assembly.” (Emphasis added.)
{¶ 11} The Attorney General had no legal duty under
{¶ 12} Moreover, contrary to Lee‘s assertions, all necessary parties were properly joined in the probate court declaratory judgment proceeding. The Attorney General, a necessary party to the proceeding under
{¶ 13} Lee further argues that an abuse of discretion is exhibited because the Attorney General could not adequately represent both Miami University (through counsel that the Attorney General appointed) and the other potential trust beneficiaries that Lee claims to represent in this action. But these other potential trust beneficiaries are at best only potential beneficiaries. The President of Miami University is vested with the sole discretion under the trust to determine the nature of the projects to be funded. Permitting possible beneficiaries to have separate counsel besides the Attorney General and to institute their own actions to enforce charitable trusts might unduly burden trustees and compromise the best interest of the beneficiaries. See, generally, Plant v. Upper Valley Med. Ctr. (Apr. 19, 1996), Miami App. No. 95-CA-52, unreported, 1996 WL 185341.
{¶ 14} In fact, Lee‘s mandamus action appears to be merely a thinly veiled attemрt to overturn a probate court judgment that she failed to reverse on appeal when she represented the heirs. Cf. State ex rel. Sampson v. Parrott (1998), 82 Ohio St.3d 92, 93, 694 N.E.2d 463, 463 (“Where a plain and adequate remedy at law has been unsuccessfully invoked, a writ of mandamus will not lie to relitigate the same issue.“).
{¶ 16} Finally, as the court of appeals held, Lee did not establish her entitlement to a writ of mandamus to compel the Attorney Genеral to force the charitable trust to comply with the registration requirements of
{¶ 17} Based on the foregoing, Lee is not entitled to the requested extraordinary relief in mandamus. Accordingly, we affirm the judgment of the court of appeals.
Judgment affirmed.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG STRATTON, JJ., concur.