Opinion
No. 702779
Decided June 16, 1967.
Descent and distribution — Death of legatee after thirty days from death of decedent — Before distribution — Bequest payable to the estate of legatee.
When a legatee dies without issue, after the period of thirty days from the death of the decedent within which Section 2105.21, Revised Code, would be operative, but before distribution, the bequest is payable to the executor of such legatee.
Messrs. Mancino, Mancino Mancino, for plaintiff, Thomas J. McSteen, Executor.
Messrs. Baker, Hostetler Patterson, for defendants, Barclays Bank Limited et al.
Mr. Joel M. Garver, for guardian ad litem for minor defendants.
Counsel have agreed that the allegations in the petition constitute the facts in the case.
Bridie McSteen died testate on March 17, 1962. Her sister, Anne McSteen, was her sole heir. Plaintiff is the executor of Bridie McSteen's estate.
We are interested in the residuary clause only. This is Item VIII of the will, and by its terms the testatrix leaves the rest and residue of her estate to her sister, Anne McSteen, of London, England.
Anne McSteen died testate on May 21, 1962. She was never married and had no children. Barclays Bank Limited and Charles McSteen are the executors of her estate.
Although plaintiff seeks instructions on several points, my conclusion on the chief point makes it unnecessary to consider the others.
The chief question raised by counsel is whether or not the residuary bequest to Anne McSteen lapsed by reason of her death approximately two months after the death of the testatrix and before payment had been made to her.
Inasmuch as Anne McSteen died without issue and was the sole residuary "devisee," Section 2107.52, Revised Code, the so-called anti-lapse statute, is inapplicable.
Likewise, Section 2105.21, Revised Code, is inapplicable. The pertinent part of this section provides that if a legatee dies within thirty days after the death of the decedent, the estate of the first decedent shall pass and descend as though he had survived such legatee. But in the case before us, Anne McSteen lived beyond the statutory period.
It is well settled at common law that if a person named as a legatee or devisee in a will predeceases the testator, the gift fails unless the will provides for a substituted beneficiary. See 56 Ohio Jurisprudence 2d, Section 851; 6 Bowe-Parker, Page on Wills, Section 50.2 (1962).
However, if a bequest once vests, the death of the legatee after that of the testator, but prior to payment or distribution of the bequest, does not cause a lapse, and in the absence of other provisions in the will, the bequest should be distributed to the executor or administrator of the deceased legatee. Wilcox v. Central National Bank (App. 1945), 46 Ohio Law Abs. 65, 69 N.E.2d 527; Hoppes v. American National Red Cross (Com. Pl. 1955), 71 Ohio Law Abs. 259, 128 N.E.2d 851; Schneider v. Dorr (Prob. 1965), 3 Ohio Misc. 103, 120, 210 N.E.2d 311, 322. where the court observed:
"As to testator's nieces * * *, the question of the anti-lapse statute does not arise because both survived the testator."
See also 6 Bowe-Parker, Page on Wills, Sections 50.2, 50.10 (1962).
It is incontrovertible that Anne McSteen had a vested estate under Item VIII of Bridie McSteen's will.
Accordingly, the fund constituting Bridie McSteen's residuary estate belongs to the estate of Anne McSteen and should be paid to the executors of Anne McSteen's estate, namely, Barclays Bank Limited and Charles McSteen.