Polen v. Baker

Moyer, C.J.,

dissenting. I respectfully dissent from the majority decision holding that the residuary clause expresses an intention to provide per capita *570distribution to the surviving named beneficiaries and that R.C. 2107.52(B) is inapplicable. The law regarding the lapsing of testamentary gifts is well established, and the majority’s opinion does not comport with it.

R.C. 2107.52(B) provides that “[ujnless a contrary intention is manifested in the will, if a devise of real property or a bequest of personal property is made to a relative of a testator and the relative was dead at the time the will was made or dies after that time, leaving issue surviving the testator, those issue shall take by representation the devised or bequeathed property as the devisee or legatee would have done if he had survived the testator.” (Emphasis added.) This statute creates a statutory presumption against the lapsing of bequests to relatives of the testator. A testator, however, may avoid application of the statute by including in the testator’s will a sufficient statement of intent that is clearly and affirmatively set forth. See Larwill’s Exrs. v. Ewing (1905), 73 Ohio St. 177, 182, 76 N.E. 503, 504-505. The will executed by Haines reveals an intent that the antilapse statute apply. The majority construes the language of the will to mean the contrary of what is expressed in the will.

In her will, Haines distributed the residue of her estate to five named individuals to “equally share and share alike, the same to be theirs absolutely, or to the survivors thereof.” The rule is that when the words “equally” and “share and share alike” are used to make testamentary gifts to named individuals, rather than to a class, equal shares are to be distributed to all the named individuals, with no gift lapsing if a named beneficiary predeceases the testator. See Martin v. Summers (1995), 101 Ohio App.3d 269, 272, 655 N.E.2d 424, 425-426. Similar to the will at issue here, a dispositive factor in Martin was that the testator made gifts to named individuals, not a class, and used the language “equally, share and share alike.” Id. As the majority notes, the Martin opinion did not address a will provision containing survivorship language, but when such a provision is read as a whole, inclusion of survivorship language is not dispositive of an intent to defeat the antilapse statute.

All parts of a will must be construed together, and, if possible, effect must be given to every term of the will. Ohio Natl. Bank of Columbus v. Adair (1978), 54 Ohio St.2d 26, 30, 8 O.O.3d 15, 17, 374 N.E.2d 415, 418. The majority cites this proposition, but then discounts the testator’s use of the term “absolutely” used in conjunction with the survivorship language of the residuary clause. Standing alone, survivorship language in a residuary clause may support the outcome reached by the majority, but inclusion of the term “absolutely” directs a different result.

As noted by the appellants, the term “absolutely” means “[cjompletely, wholly; without qualification; without reference or relation to, or dependence upon, any other person, thing, or event.” (Emphasis added.) Black’s Law Dictionary (6 *571Ed.1990) 9. In construing language of a will, technical words used in the will should be accorded their strict technical meaning. Hamilton v. Pettifor (1955), 101 Ohio App. 213, 214, 1 O.O.2d 149, 149-150, 138 N.E.2d 447, 448, affirmed (1956), 165 Ohio St. 361, 59 O.O. 470, 135 N.E.2d 264. Taking into consideration the technical meaning of the word “absolutely,” it is apparent that the testator did not intend to impose upon the five named beneficiaries a requirement that they survive her. When the definition of “absolutely” is applied, the will provision becomes “equally share and share alike, the same to be theirs completely, without relation to, or dependence on, any other person, thing, or event, or to the survivors thereof.” As urged by appellants, use of the phrase “or to the survivors thereof,” which follows the term “absolutely,” could have meant “the surviving issue of each named legatee” or “those of the five named legatees who survive me.” Either approach is conceivable. See Sinton v. Boyd (1869), 19 Ohio St. 30, 1869 WL 27; Hamilton, 101 Ohio App. 213, 1 O.O.2d 149, 138 N.E.2d 447; Detzel v. Nieberding (1966), 7 Ohio Misc. 262, 36 O.O.2d 358, 219 N.E.2d 327. As Justice Pfeifer observes in his dissent, it is doubtful that language plausibly containing different meanings is a sufficient statement that the testator intended to defeat application of the antilapse statute.

There are other reasons that should have led the majority to a different conclusion. First, Baker predeceased the testator by three and one-half years. The law presumes that a testator knows the law when executing a will, and the law presumes that the testator knew the presumption created by R.C. 2107.52(B). Tootle v. Tootle (1986), 22 Ohio St.3d 244, 247, 22 OBR 420, 424, 490 N.E.2d 878, 881; Ohio Natl. Bank of Columbus v. Harris (1933), 126 Ohio St. 360, 364-365, 185 N.E. 532, 534. Given this presumptive knowledge, if the testator had desired that Baker’s gift would lapse, she could have amended her will to ensure that Baker’s surviving issue would not take his share of the residue estate.

Second, Item XIX(D) of the will, which provides for the contingency that gifts from the estate could be made to minors, indicates an intent to provide for the issue of certain of the beneficiaries. Under Item XIX of the will, which designates powers of the executor, the question is, to whom would the executor make such gifts? Because the language of the residuary clause evidences no intent to defeat application of the antilapse statute, it is reasonable to conclude that the only minors to which Item XIX(D) could apply would be the issue of named beneficiaries.

Finally, appellants make no claim that the five named beneficiaries constitute a class, natural or otherwise. The general rule is that when a gift is made to named persons, it is a gift to them individually, and not as a class. See Jewett v. Jewett (1900), 12 Ohio C.D. 131, 1900 WL 1176, at *3. Unlike the case of Hamilton v. Pettifor (1956), 165 Ohio St. 361, 59 O.O. 470, 135 N.E .2d 264, cited *572by the majority, the five individuals named in the residuary clause are not claimed to be of equal relationship to each other or to the testator, and not all named beneficiaries are members of what could be considered to be a class, such as nieces, nephews, or grandchildren. When there is no class and gifts are made to named beneficiaries, the proper disposition of gifts should be per stirpes, and not per capita as ordered by the majority. See Martin, 101 Ohio App.3d at 272, 655 N.E.2d at 425-426, citing Mooney v. Purpus (1904), 70 Ohio St. 57, 70 N.E. 894.

For the foregoing reasons, I respectfully dissent from the interpretation of the residuary clause adopted by the majority. We should reverse the judgment of the court of appeals.