Summary
noting that a no-contest clause is not violated by the participation of beneficiaries in an action for construction of the will even if, having appeared, they make contentions asserting the invalidity of particular clauses of the instrument
Summary of this case from Pifher v. Pifher (In re Estate of Damschroder)Opinion
No. 32256
Decided April 25, 1951.
Wills — Bequest in trust to testator's children — Corpus to charities at termination of trust period — Bequest to charities invalid, when — Section 10504-5, General Code — Children taking benefits under will — And expressing determination not to waive provisions of such section — In terrorem clause of will not violated thereby.
1. Where a testator devises or bequeaths property in trust, the income to be paid to his children and others for a period of time and at the expiration of such period the corpus of the trust property to be divided among certain charities, the devise or bequest to the charities is invalid under Section 10504-5, General Code, if the testator dies within one year after the execution of his will, leaving issue of his body.
2. Where, under such circumstances, the children of the testator take the benefits accruing to them under the will and express a determination not to waive the provisions of Section 10504-5, General Code, they do not thereby violate an in terrorem clause providing for their disinheritance if, by procedure in court or in any way for any cause, real or imaginary, they make any effort to break, change or set aside the will or any part thereof, nor do they consent that the provision as to the charities shall be considered valid.
APPEAL from the Court of Appeals for Lucas county.
Walter G. Kirkbride and others, executors under the will of Arthur S. Hickok, deceased, hereinafter designated plaintiffs, instituted an action in the Probate Court of Lucas County against Daisy S. Hickok and others, hereinafter designated defendants. All persons, classes of persons and institutions named in the will of Arthur S. Hickok, deceased, were made parties defendant.
The action is for a construction of the will of Arthur S. Hickok, deceased. He died a resident of Lucas county on June 30, 1945, leaving Daisy S. Hickok, his widow, Clarence H. Hickok, his son, and Ruth Hickok Marvin, his daughter, surviving him.
Arthur S. Hickok was an exceedingly wealthy man, and on February 10, 1945, he executed his will in which he provided that substantially all his estate shall be held in trust for a period of 20 years, the income to be paid to his son, daughter and employees as directed by the will. The provisions for his wife are of no importance in the present case for the reason that she elected not to take under the will and, therefore, became entitled to one-third of the net estate of her deceased husband.
The will provides that, after the termination of the 20-year trust, all the assets remaining in the estate are to be divided into five funds, and those funds are to be distributed to some 20 charities named therein.
There is an in terrorem clause in the will to the effect that, if any person, heir, devisee, legatee or beneficiary named in the will shall by procedure in court or in any way for any cause make any effort or attempt to break, change or set aside the will or any part thereof, such person or persons will be barred from any right, title or interest to any devise, bequest or gift under the will.
The petition filed in the Probate Court seeks construction of numerous provisions of the will but the one with which we are concerned relates to the disposition of property made in item XII.
The petition recites:
"* * * the legacies, bequests and devises under item XII of said last will and testament were made by the testator, Arthur S. Hickok, for benevolent, religious, educational and charitable purposes and were made to the trustees and in trust for certain purposes for the period of twenty (20) years and thereafter for distribution for said benevolent, religious, educational and charitable purposes; that said Arthur S. Hickok executed the last will and testament on the 10th day of February, 1945, and died on the 30th day of June, 1945; that he executed his said last will and testament less than one (1) year prior to his death; that he left surviving him Clarence H. Hickok and Ruth Hickok Marvin, issue of his body; that these plaintiffs are advised that thereby the said bequests to said defendants * * * [naming the charities] contained in item XII of said will are invalid; and that the testator died intestate as to all assets of the trust created by said will, including accumulation of income therefrom, which shall be in the hands of said trustees twenty (20) years from and after the death of said testator and that the testator did not provide in his said last will and testament as to the distribution of said assets at said time; the plaintiffs are further of the opinion that the court should order at the expiration of the term of said trust, to wit: twenty years from the death of said testator, that the assets remaining in their hands shall be distributed to Clarence H. Hickok and Ruth Hickok Marvin and in the event of the prior death of any one of them, to their heirs, executors, administrators or assigns, subject to the right, title and interest therein of Daisy S. Hickok, surviving widow."
Joint answers were filed by Daisy S. Hickok, Ruth Hickok Marvin and Clarence H. Hickok which admit most of the allegations contained in the foregoing part of the petition and admit specifically that "Arthur S. Hickok died intestate as to certain portions of his estate."
In addition to their admissions, the answers of the three above-mentioned defendants contain the following paragraph:
"Defendants are informed, and accordingly say, that, by reason of the provisions of Section 10504-5 of the General Code of Ohio, item XII of said will of Arthur S. Hickok, deceased, is void, and the said Arthur S. Hickok died intestate as to the property therein purported to be bequeathed and devised; but if the court shall determine that the provisions of said item XII are voidable and that affirmative action on the part of the defendants, Ruth Hickok Marvin and Clarence H. Hickok, is necessary in order to make invalid the provisions of said item XII, defendants further say that such affirmative action may be had and taken by the defendants, Ruth Hickok Marvin and Clarence H. Hickok, and the same shall, and will not, constitute an effort or attempt to break, change or set aside the will of Arthur S. Hickok, deceased, or any part thereof, within the meaning and intent of item XIII of said will; or, in the alternative, if the same shall be determined to constitute an effort or attempt to break, change or set aside the will of Arthur S. Hickok, deceased, or any part thereof, within the meaning and intent of item XIII of said will, defendants further say that the provisions of said item XIII in their purported application to any affirmative action pursuant to the provisions of Section 10504-5 of the General Code of Ohio are void because contrary to public policy; and in the event the court shall so determine, but not otherwise, defendants Ruth Hickok Marvin and Clarence H. Hickok further say that they do hereby elect to have declared invalid the provisions of item XII of the will of Arthur S. Hickok, deceased."
The charities filed a joint answer in which they say that, if Section 10504-5, General Code, applies in any way to the devises and bequests under item XII, which the charities specifically deny, the Hickok children and each of them have waived any right to invoke the provisions of such section or otherwise to invalidate the devises and bequests and have elected not to assert any such right.
In their answer the charities say further that the Hickok children are legatees and beneficiaries under the will, subject to item XIII (the in terrorem clause), and that, if the Hickok children assert any right under Section 10504-5 or otherwise attempt to invalidate, break or set aside the devises and bequests to the charities, the Hickok children will destroy, defeat and bar all their claims to any participation in the estate of their father.
Answers were filed by the remaining defendants.
The cause was submitted to the Probate Court, which held, inter alia:
"1. The five funds to be provided by the trustees and the provision for the distribution of said funds as set up under item XII of said will are invalid and of no effect by reason of Section 10504-5, General Code.
"* * *
"8. The testator died intestate as to all funds or assets which may be or remain in the trust fund created under item VIII of said will and testament at the expiration of twenty years from the date of his death and distribution of such funds and assets shall be made one-half to Ruth Hickok Marvin, her executors, administrators, heirs and assigns, and one-half to Clarence H. Hickok, his executors, administrators, heirs and assigns."
An appeal on questions of law and fact was prosecuted by the charities to the Court of Appeals which entered the same judgment as that entered by the Probate Court.
The cause is before this court upon the allowance of a motion to certify the record.
Messrs. Kirkbride, Cole, Frease Mittendorf and Mr. Rolland W. Dings, for plaintiff-appellees.
Messrs. Kirkbride, Cole, Frease Mittendorf, Mr. Rolland W. Dings, Messrs. Welles, Kelsey, Fuller, Harrington Seney, Mr. James Hodge, Jr., Messrs. Slyfield, Hartman, Reitz Tait, Mr. Glenn P. Beavers and Mr. J.C. McFellin, for defendant-appellees.
Mr. Oliver Bates, Messrs. Effler, Eastman, Stichter Smith, Mr. George H. Fell, Messrs. Levison Levison, Messrs. Logan, Schroeder Swartzbaugh, Mr. Theodore Markwood, Messrs. Marshall, Melhorn, Bloch Belt, Messrs. Rowe, Williams Shawaker, Messrs. Spengler, Nathanson, Hebenstreit Heyman, Mr. Theodore Van Dellen, Messrs. Williams Eversman and Mr. Josiah T. Herbert, for appellants.
The question of law presented to us is a narrow one. It is whether Section 10504-5, General Code, renders a bequest to charities, made in a will executed within one year before the death of the maker, void or merely voidable at the instance of the next of kin named therein, and whether the acceptance of the benefits, as provided in a will, by the next of kin of the testator constitutes a waiver of their rights under Section 10504-5 and confirms the bequests to the charities.
Section 10504-5 provides:
"If a testator dies leaving issue of his body, or an adopted child, living, or the lineal descendents of either, and the will of such testator gives, devises or bequeaths the estate of such testator, or any part thereof, to a benevolent, religious, educational or charitable purpose, or to this state or to any other state or country, or to a county, city, village or other corporation, or association in this or any other state or country, or to a person in trust for such purposes, or municipalities, corporations or associations, whether such trust appears on the face of the instrument making such gift, devise or bequest or not; such will as to such gift, devise or bequest, shall be invalid unless it was executed according to law, at least one year prior to the death of the testator."
The language of this section is clear and unambiguous. Where a testator dies leaving issue of his body, or an adopted child, and his will contains devises or bequests to charitable institutions, such devises or bequests are invalid unless the will was executed at least one year prior to the death of the testator.
In the present case the testator died within a year after executing his will, and under the provisions of the statute the bequests he made to the charities are invalid. This statute has been construed by this court in the following cases:
Patton v. Patton, 39 Ohio St. 590; Board of Trustees of Ohio State University v. Folsom, 56 Ohio St. 701, 47 N.E. 581; Davis v. Davis, Exr., 62 Ohio St. 411, 57 N.E. 317; Theobold v. Fugman, 64 Ohio St. 473, 60 N.E. 606; Thomas v. Trustees of Ohio State University, 70 Ohio St. 92, 70 N.E. 896; and Barrett, Admr., v. Delmore, 143 Ohio St. 203, 54 N.E.2d 789, 153 A.L.R., 192.
In none of those cases has the statute been treated otherwise than as a limitation on the power of a testator to make charitable bequests, where the testator dies within a year after making his will, and all hold that property so devised or bequeathed does not under such circumstances pass to charitable institutions.
The charities contend, however, that, even conceding the gifts to them are invalid because of Section 10504-5, the children of the testator have waived the application of the provisions of the section by reason of having elected to take the income provided for them for the period of 20 years and by their express election in their answers to take under the will.
It is the contention of the charities that application of the provisions of Section 10504-5 may be waived and they rely upon the opinion of this court in the case of Thomas v. Trustees of Ohio State University, supra.
The Thomas and Folsom cases were concerned with the will of Henry F. Page which contained a devise to the Ohio State University and provided that if such devise should fail or be held void for any cause, it should then go to the children of two of testator's deceased brothers.
In a codicil he fully empowered his daughter to ratify and confirm his bequest to the university, and if she exercised this power the devise over to the children of his deceased brothers "is revoked."
Page died within a year from the making of the will, so that the devise to the university became invalid by virtue of Section 5915, Revised Statutes (Section 10504-5, General Code).
The daughter exercised the power given her by the will by executing and delivering a deed for the property to the university.
The Page will was construed by this court in the Folsom case which held that the children of testator's brothers could take nothing under the will as the action which would defeat their remainder had taken place, namely, the making of a deed to the university by the testator's daughter.
In that case the court said that there might be a question as to what construction the law might place on the will as between the university and the heirs of the daughter. This latter question was the point at issue in the Thomas case, which held that the power conferred by the testator upon his daughter and heir at law was not a devise in trust to or for the university but a naked power to appoint to a designated object and therefore was not rendered invalid by the statute.
This court held further that a deed of confirmation expressly purporting to execute such power and conveying the property which had been devised was operative to invest the university with a perfect title to the property therein described.
In both the Folsom and Thomas cases it was conceded that the bequest to the university was invalid because the testator died within a year after making his will.
However, the testator provided for the property to go to others but gave his daughter and heir at law power to transfer the property to the university and in case she exercised the power the bequest over was voided. She exercised the power and therefore the bequest over was voided, and if the university was not entitled to the property under the exercise of the power the property would have descended to the testator's daughter as intestate property.
The Thomas case held simply that since she had exercised the power and had conveyed the property to the university the university received a perfect title thereto.
The logic of the Thomas case is apparent.
It is obvious that in any case there can be no question of the right of children of a testator to make a conveyance and gift of property bequeathed to charities, and if they perfect such conveyance and gift the charities would undoubtedly receive it.
The children of the testator have in no way violated the in terrorem clause in their father's will. They have not sought to set aside, break or make invalid any provision thereof. They were made beneficiaries of a trust under the will, along with employees of the testator, and they have taken the provisions made for them exactly as the testator provided. In their answer they disclaim any notion of waiving the provisions of Section 10504-5, but that is in no way an attack upon the will. No action of testator's children made the gifts to the charities invalid; the statutory law of Ohio accomplished that.
Whether the provision of the law is wise is a question addressed solely to the legislative branch of the government. We can only construe the statute as it is. Its purpose, of course, is to prevent undue influence enhanced by the apprehension of approaching death.
Invalid means void, or without validity, and it seems obvious that if children of the blood take under the will just as it provides, and have done nothing themselves to bring about the invalidity of the bequest to the charities, they can not be said to have waived the provisions of the statute, particularly when they declare that they do not waive such provisions.
It is contended by the charities that the bequests and gifts to them form a pattern or plan of the will and that the children by accepting the provisions of the will adopted the plan or pattern.
The obvious answer to this contention is that in nearly every will in which bequests are made to charities it can be said that such bequests form a plan or pattern, but, unfortunately for the charities, the law says that the plan or pattern is disrupted so far as they are concerned if the testator dies within a year from the execution of his will, leaving issue of his body or an adopted child.
The present case is clearly distinguishable from the Thomas case for the reason that the testator in the present case made no provision with reference to the corpus of his estate in the event his bequests and gifts to the charities became invalid. It follows that such corpus must at the end of the 20-year period pass as intestate property and that both the Probate Court and the Court of Appeals were correct in the conclusions at which they arrived.
The claim of the charities that Section 10504-5 applies only in case a bequest or gift is made to one charity and not to more than one was not seriously argued and it seems to us that it requires no discussion to demonstrate that it is untenable.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS and HART, JJ., concur.
MIDDLETON, J., not participating.