[Cite as Radzisewski v. Szymanczak, 2012-Ohio-2639.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97795
VICKI RADZISEWSKI, EXECUTOR
PLAINTIFFS-APPELLEES
vs.
MIROSLAW SZYMANCZAK, ET AL.
DEFENDANTS-APPELLANTS
JUDGMENT:
REVERSED AND REMANDED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Probate Division
Case No. 11ADV0166006
BEFORE: Rocco, J., Stewart, P.J., and Keough, J.
RELEASED AND JOURNALIZED: June 14, 2012
ATTORNEY FOR APPELLANTS
Christina M. Joliat
P.O. Box 391531
Solon, Ohio 44139
ATTORNEY FOR APPELLEE
Teddy Sliwinski
5800 Fleet Avenue
Cleveland, Ohio 44105
KENNETH A. ROCCO, J.:
{¶1} This is an appeal from a judgment of the the Cuyahoga County Court of
Common Pleas, Probate Division (“the probate court”), in an action to construe the will of
decedent Zofia Sulek. Defendants-appellants Malgorzata Polkowska-Sulek, Katarzyna
Olszewska-Sulek, Radoslaw Kowalski, Wieslawa Sas, Irena Stankiewicz, and Agata
Maciszewska, who are family members and friends of Sulek who still live in Sulek’s
native country of Poland, appeal from the order that adopted the magistrate’s decision
that, because the will contained no “rest and remainder” clause, Sulek’s residuary estate
went to her next-of-kin, defendant-appellee Zuzanna Szymanczak (“Zuzanna”).1
{¶2} Appellants present two “issues for review.”2 They assert the probate court
improperly interpreted Sulek’s intent, as expressed in her will, to distribute all of her
property to them rather than to her next-of-kin.
{¶3} Upon a review of the record, this court agrees with appellants. Consequently,
their “issues for review” are resolved in their favor, and the probate court’s judgment is
reversed.
1Zuzanna Szymanczak is the wife of Zofia’s deceased nephew, Miroslaw, who
was originally named as a defendant in this action; during the course of the
underlying proceeding, Zuzanna was substituted for her husband.
2One of the appellants, Radoslaw Kowalski, acting on behalf of all, filed a pro
se appellate brief that does not strictly comply with the Ohio Appellate Rules;
therefore, appellants presented no actual assignments of error as required by
App.R. 16(A)(3).
{¶4} The record reflects that Vicki Radzisewski, executor of Sulek’s estate, filed
this action seeking construction of Sulek’s will, because Sulek, at the time of her death,
owned property in Poland that the will failed to mention. Radzisewski attached a copy of
Sulek’s will, which Sulek executed on September 8, 2009.
{¶5} The relevant portions of Sulek’s will, which was prepared by an attorney,
state:
I, Zofia Sulek,* * * do hereby make, publish and declare this instrument to
be my Last Will and Testament, hereby revoking and making null and void
all other Wills heretofore made by me.
ITEM I
I DIRECT that all of my debts, funeral and administrative expenses
be paid out of my estate * * * and any and all * * * taxes, levied or assessed
by reason of my death, shall be paid by my Executor out of my residuary
estate * * * .
ITEM II
I give, devise and bequeath all of my household, clothing, jewelry,
books, works of art, and similar articles of tangible personal belongings I
give and bequeath [sic] to my family residing in Poland: MALGORZATA
POLKOWSKA-SULEK, KATARZYNA OLSZEWSKA-SULEK,
RADOSLAW KOWALSKI, WIESLAWA SAS, IRENA
STANKIEWICZ and AGATA MACISZEWSKA, absolutely and in fee
simple, share and share alike.
ITEM III
In the event MALGORZATA POLKOWSKA-SULEK, KATARZYNA
OLSZEWSKA-SULEK, RADOSLAW KOWALSKI, WIESLAWA SAS, IRENA
STANKIEWICZ and AGATA MACISZEWSKA, predecease me or fail to survive me
* * * , leaving child or children surviving said child or children shall take the share of the
deceased parent as if the deceased parent survived me.
ITEM IV
I direct that the Real Property located at 144 East Dawnwood, Seven Hills, Ohio
be sold and the proceeds divided among my family and friends: MALGORZATA
POLKOWSKA-SULEK, KATARZYNA OLSZEWSKA-SULEK, RADOSLAW
KOWALSKI, WIESLAWA SAS, IRENA STANKIEWICZ and AGATA
MACISZEWSKA, share and share alike.
{¶6} Appellee Zuzanna, Miroslaw Szymanczak’s widow, filed a written response to the
complaint, asserting that Sulek’s intent was to leave all property in Poland to Zuzanna’s husband,
Sulek’s nephew Miroslaw, “in accordance with the Polish law.” In support of her response, Zuzanna
attached a copy of separate, Polish wills, that had been made by Sulek and her husband in 1994 and that
referred only to the property in Poland.
{¶7} Appellants filed a “waiver of service of the complaint,” followed by an answer. Therein,
appellants asserted that, while the “validity” of the Sulek’s will submitted to the probate court on
December 16, 2009 was “not contested,” Sulek’s intent was to leave her property in Poland to her
nephew “only in case of [the] simultaneous death[s]” of her and her husband. Appellants also asserted
that Sulek prepared in Polish a handwritten will dated August 25, 2009 in which she left “her estates,
wherever situated * * * to the family in Poland.”
{¶8} The matter proceeded to a hearing before a magistrate. Only the executor and her attorney
appeared, but the executor offered some exhibits into evidence.
{¶9} Subsequently, the magistrate issued a decision noting that the executor offered evidence to
support her contention that Sulek “wanted all of her estate to be divided equally among the persons
named” in her will. One of the exhibits the executor offered was the affidavit of the attorney who had
prepared the will.
{¶10} The magistrate’s decision set forth the contents of the affidavit. In pertinent part,
“[t]he affiant * * * stated that during the execution of [Sulek’s] will it was the intent of
Ms. Sulek to bequeath and devise all of her real properties and personal properties,
tangible and intangible, to * * * the following: Malgorzata Polkowska-Sulek, Katarzyna
Olszewska-Sulek, Radoslaw Kowalski, Wieslawa Sas, Irena Stankiewicz, and Agata
Maciszewska to share and share alike.”
{¶11} Another exhibit accepted into evidence “was a handwritten copy of a
document titled ‘Testament’ that was written in the Polish language.” According to the
translation and the executor’s representation, the document was “a draft of a new will that
Ms. Sulek had intended to execute before her death.” The magistrate stated that this
document provided in part that Sulek “bequeath[ed her] estates wherever they are to the
family residing in Poland”; however, because this particular document failed to name
“Agata Maciszewska,” it was “inconsistent” with the other evidence submitted at the
hearing. Based upon this and upon the lack of a phrase in Sulek’s will that bequeathed
the residuary estate to appellants, appellants were not entitled to an equal share of Sulek’s
residual estate.
{¶12} Appellants filed objections to the magistrate’s decision. Appellants argued
that the magistrate had ignored the fact that the “Testament” contained Agata
Maciszewska’s maiden name, i.e., “Agata Sulek”; therefore, the decision lacked a basis in
fact.
{¶13} The probate court eventually issued an order in which it overruled
appellants’ objections and adopted the magistrate’s decision. Appellants filed a timely
appeal from the probate court order. They present the following “Issues” for review.
“I. Whether the trial Court erred in failing to expressly say, that in her Last
Will, Zofia Sulek, died on November 23, 2009 disposed all of her properties: real
(including real properties in Poland) and personal properties only to Malgorzata
Polkowska-Sulek, Katarzyna Olszewska-Sulek, Radoslaw Kowalski, Wieslawa Sas,
Irena Stankiewicz, [and] Agata Maciszewska?
“II. In particular whether the trial Court erred in omitting during
construing the Last Will the intended meaning of Zofia Sulek’s latently ambiguous
words: I give, devise and bequest [sic] all of my household, covered in Item II of the
aforementioned Will, in situation, where-according to appellant’s [sic] and in the
light of all extrinsic evidence, this phrase covers all estate (or at least real properties)
of Zofia Sulek?”
{¶14} Appellants argue that the magistrate misapplied the law to this case because
the magistrate did not properly consider the facts presented at the hearing; therefore, the
probate court erred in adopting the magistrate’s decision. Based upon the record, this
court agrees.
{¶15} With respect to a judgment involving the construction of a will, an appellate
court reviews the decision of the probate court de novo. Church v. Morgan, 115 Ohio
App.3d 477, 481, 685 N.E.2d 809 (4th Dist. 1996). Thus, this court reviews the
judgment independently and without deference to the probate court’s determination.
Belardo v. Belardo, 187 Ohio App.3d 9, 2010-Ohio-1758, 930 N.E.2d 862, ¶ 7 (8th
Dist.).
{¶16} The basic law guiding will interpretation is that, “the sole purpose of the
court should be to ascertain and carry out the intention of the testator.” Polen v. Baker,
92 Ohio St.3d 563, 752 N.E.2d 258 (2001), citing Oliver v. Bank One, Dayton, N.A., 60
Ohio St.3d 32, 34, 573 N.E.2d 55 (1991), and Townsend’s Exrs. v. Townsend, 25 Ohio St.
477 (1874), paragraph one of the syllabus. This intent is to be gleaned from the words
used. Id., citing Townsend’s Exrs., paragraph two of the syllabus.
The court may consider extrinsic evidence to determine the testator’s intention
only when the language used in the will creates doubt as to the meaning of the will.
Sandy v. Mouhot (1982), 1 Ohio St.3d 143, 145, 1 OBR 178, 180, 438 N.E.2d 117, 118;
Wills v. Union Savings & Trust Co. (1982), 69 Ohio St.2d 382, 23 O.O.3d 350, 433
N.E.2d 152, paragraph two of the syllabus. Oliver.
{¶17} In this case, the magistrate’s decision indicates that extrinsic evidence was considered.
Michelsen-Caldwell v. Croy, 6th Dist. No. WD-08-001, 2008-Ohio-4281. The magistrate, therefore,
clearly believed the language Sulek used in the will “created doubt as to the meaning” of her will, i.e.,
that a latent ambiguity existed.
{¶18} A latent ambiguity is one that is not apparent from the language used or from the face of
the instrument. Conkle v. Conkle, 31 Ohio App.2d 44, 285 N.E.2d 883 (5th Dist. 1972). A latent
ambiguity can arise even if the language of the instrument is unambiguous and suggests only a single
meaning, but some extrinsic fact or evidence creates the necessity for interpretation or a choice
between two or more possible meanings, or if the words apply equally well to two or more different
subjects or things. Id. (Emphasis added.)
{¶19} Extrinsic evidence may be used to resolve a latent ambiguity in a will, “and
aid in the interpretation or application of the will.” Id. Where there is a latent
ambiguity appearing in a will, extrinsic evidence is admissible, not for the purpose of
showing the testator’s intention, but to assist the court to better interpret that intention
from the language used in the will. Barr v. Jackson, 5th Dist. No. 08 CAF 09 0056,
2009-Ohio-5135, ¶ 36, citing Shay v. Herman, 85 Ohio App. 441, 83 N.E.2d 237 (1948).
{¶20} In this case, Sulek provided in her will that her funeral expenses should be
paid out of her “residuary estate,” however, she specifically bequeathed only her Ohio
property. Thus, Sulek disposed of the “rest and remainder” of her Ohio property at the
same time when she specifically named in her will no other persons but appellees.
Moreover, she bequeathed her property in Ohio “in fee simple,” which are words that
commonly refer to real property rather than only to personal property. Polen, 92 Ohio
St.3d 563, 565-566, 752 N.E.2d 258 (2001), citing Hamilton v. Pettifor, 165 Ohio St.
361, 135 N.E.2d 264 (1956).
{¶21} According to the evidence supplied at the hearing, an additional will
handwritten by Sulek in Polish existed, but Sulek died before she submitted it to a Polish
court. The handwritten will, like her Ohio will, disposed of all of her property in Poland
to the same persons named in her Ohio will.
{¶22} The magistrate nevertheless decided this evidence, even in light of the
affidavit of the attorney who had drafted Sulek’s Ohio will, was somehow “inconsistent”
with the language Sulek used in her Ohio will. In this, the magistrate erred. Shay, 85
Ohio App. 441, 83 N.E.2d 237 (1948); Hamilton; compare Henson v. Casey, 4th Dist.
No. 04CA9, 2004-Ohio-5848, ¶ 22.
{¶23} Because the magistrate failed to correctly apply the law to the facts adduced at the hearing,
the probate court improperly adopted the magistrate’s decision. Appellants’ “issues for review,”
accordingly, are resolved in their favor.
{¶24} The probate court’s order is reversed. This case is remanded for further proceedings
consistent with this opinion. It is ordered
that appellants recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of
Appellate Procedure.
________________________________________
KENNETH A. ROCCO, JUDGE
MELODY J. STEWART, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR