[Cite as In re Estate of Wall, 2017-Ohio-5713.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
IN THE MATTER OF: ) CASE NO. 16 MA 0023
)
THE ESTATE OF: )
CRYSTAL E. WALL, DECEASED ) OPINION
)
)
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common
Pleas, Probate Division, of Mahoning
County, Ohio
Case No. 2015 ES 132
JUDGMENT: Affirmed.
APPEARANCES:
For Appellant William (“Bill”) Wall: Atty. John Ams
143 Westchester Drive
Youngstown, Ohio 44515
For Appellee Alexander Wall, Executor: Atty. Neil H. Maxwell
Atty. Matthew M. Ries
Harrington, Hoppe & Mitchell, Ltd.
26 Market Street, Suite 1200
Youngstown, Ohio 44503
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: June 27, 2017
[Cite as In re Estate of Wall, 2017-Ohio-5713.]
WAITE, J.
{¶1} Appellant, William (“Bill”) Wall, appeals the judgment of the Mahoning
County Common Pleas Court, Probate Division, holding that Willie Mae Wall (“Willie
Mae”) was deemed to have predeceased her daughter, Crystal E. Wall (“Crystal”), for
purposes of determining survivorship. Willie Mae did not survive Crystal by 120
hours as required pursuant to R.C. 2105.32. Based on a review of the record,
Appellant’s assignment of error is without merit and the judgment of the trial court is
affirmed.
Factual and Procedural History
{¶2} Willie Mae and her adult daughter, Crystal, resided together in
Youngstown, Ohio. On October 30, 2014, Willie Mae discovered Crystal’s deceased
body in her home. As a result, Willie Mae suffered a stress-induced event and also
died. It is undisputed that Willie Mae passed away less than 120 hours after the
death of Crystal.
{¶3} On March 11, 2015, Crystal’s will was admitted to the Mahoning County
Probate Court. An estate was also opened for Willie Mae, who died intestate. On
July 23, 2015, Appellant, who is Crystal’s brother, filed objections to the inventory of
the estate of Crystal. Appellant is not a named beneficiary under Crystal’s will. He
is, however, heir to any estate of Willie Mae. Appellant contends that Crystal’s estate
should pass to Willie Mae’s estate pursuant to Crystal’s will prior to distribution of
Willie Mae’s estate. Appellee, Alexander Wall, is Executor of Crystal’s estate and
contends that R.C. 2105.32, also known as Ohio’s Presumption of Death Statute,
requires a beneficiary to survive a decedent by 120 hours, otherwise the beneficiary
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is deemed to have predeceased the decedent. His position is that the estate should
devise to the alternative beneficiaries.
{¶4} The trial court ordered the parties to submit briefs to the court regarding
R.C. 2105.32 and the survivorship issue. On February 3, 2016, the trial court issued
a judgment entry holding that R.C. 2105.32 precluded the estate of Willie Mae from
inheriting under Crystal’s will because Willie Mae did not survive Crystal by 120 hours
as required by statute. Appellant filed this timely appeal.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN FINDING THAT THE WILL OF
CRYSTAL WALL DOES NOT FALL WITHIN THE EXCEPTION TO
THE 120-HOUR RULE CONTAINED IN R.C. 2105.36(A).
{¶5} Appellant contends the trial court erred in finding that the language in
Crystal’s will does not cause the will to fall within a statutory exception to the
operation of R.C. 2105.32.
{¶6} Questions of statutory interpretation are reviewed de novo. State v.
Best, 7th Dist. No. 04 MA 203, 2005-Ohio-4375, ¶ 34. When interpreting a statute, a
court’s primary concern is the legislative intent behind the enacting of the particular
statute. State v. S.R., 63 Ohio St.3d 590, 594, 589 N.E.2d 1319 (1992). It is
axiomatic that a court must look to the language of the statute itself to determine the
legislative intent. Shover v. Cordis, 61 Ohio St.3d 213, 218, 574 N.E.2d 457 (1991).
In undertaking that interpretation, the statute’s words and phrases must be read in
context and construed according to the rules of grammar and common usage.
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Independent Ins. Agents of Ohio, Inc. v. Fabe, 63 Ohio St.3d 310, 314, 587 N.E.2d
814 (1992); R.C. 1.42. Courts cannot ignore the plain and unambiguous language of
a statute in interpreting the statute, but must give effect to all of the words used within
the statute. Johnson’s Markets, Inc. v. New Carlisle Dept. of Health, 58 Ohio St.3d
28, 35-36, 567 N.E.2d 1018 (1991). Thus, a court may not delete language from, or
insert words not present into, a given statute. Cline v. Ohio Bur. of Motor Vehicles,
61 Ohio St.3d 93, 97, 573 N.E.2d 77 (1991).
{¶7} The Presumption of Death statute, R.C. 2105.32 reads:
(A) Except as provided in section 2105.36 of the Revised Code, if title
to property, the devolution of property, the right to elect an interest in
property, or the right to exempt property, homestead, or allowance for
support depends upon an individual's survivorship of the death of
another individual, an individual who is not established by clear and
convincing evidence to have survived the other individual by one
hundred twenty hours is deemed to have predeceased the other
individual.
{¶8} Based on a plain reading of this statute, it provides that if a presumed
heir does not survive the decedent by at least 120 hours, that presumed heir will be
deemed to have predeceased the decedent and is thereby unable to inherit under the
decedent’s will.
{¶9} An exception to the operation of this statute is contained within R.C.
2105.36(A), which reads, in pertinent part:
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Survival by one hundred twenty hours is not required if any of the
following applies:
(A) The governing instrument contains language dealing explicitly with
simultaneous deaths or deaths in a common disaster, and that
language is operable under the facts of the case.
{¶10} The exception to the presumption of death rule requires the governing
instrument, in this case Crystal’s will, to “explicitly” deal with simultaneous death or
death in common disaster to circumvent the operation of the presumption. The fifth
section of Crystal’s will reads:
I give, devise and bequeath all of my estate, whether real, personal or
mixed of whatever kind and wherever situated, hereinafter referred to
“my estate” to my mother, Willie Mae Wall, if she survives me. Should
she predecease me, I then give, devise and bequeath all of my estate
as follows: [.]
{¶11} Appellant contends that the language “if she survives me” and “[s]hould
she predecease me” in Crystal’s will is sufficient to trigger the exception to the
presumption of death statute. Citing a decision from the Supreme Court of Idaho,
Appellant argues that Ohio has never interpreted this issue, and seeks to have us
rely on the Idaho Court’s interpretation of its statute, which uses language similar to
the Ohio statute, to determine that the language in Crystal’s will allows her devisee,
Willie May, to inherit if Willie Mae survives Crystal for any period of time.
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{¶12} The facts of In the Matter of the Estate of Ida D. Kerlee, 98 Idaho 5, 557
P.2d 599, 88 A.L.R.3d 1331 (1976) are as follows: Ira Kerlee died. His sister and
primary beneficiary under his will, Margaret Fogg, died 74 hours later. Ira’s will
stated that if Fogg predeceased him, Children’s Home Finding and Aid Society was
the conditional beneficiary. The Idaho statute regarding presumption of death, I.C.
15-2-601, provided:
A devisee who does not survive the testator by one hundred twenty
(120) hours is treated as if he predeceased the testator, unless the will
of the decedent contains some language explicitly dealing with
simultaneous deaths or deaths in a common disaster, or requiring that
the devisee survive the testator or survive the testator for a stated
period in order to take under the will.
Ida.Code 15-2-601.
{¶13} Because the will in Kerlee contained the language “[i]f my sister above-
named does not survive me,” the Idaho Supreme Court held that this language,
alone, was sufficient to overcome the operation of the presumption of death statute
and the exception applied. Id. at 600.
{¶14} Appellee responds that Ohio courts have affirmatively rejected the
Kerlee decision. In a case interpreting a prior version of the current statute, which
stated that the survivorship period was 30 days rather than 120 hours, the Sixth
District held that Ohio’s presumption of death statute applied to treat the devisee as
predeceasing the testator because the testator did not “specifically or unmistakably
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provide that a named legatee or devisee shall take under the will, even though said
legatee or devisee survives the testator, but by less than thirty days.” In the Matter of
Est. of Tertel v. Tertel, 6th Dist. No. L-83-286, 1984 WL 7760 (Feb. 3, 1984) *3.
Although it was in reference to a prior version of the statute, the court clearly and
affirmatively rejected the holding in Kerlee, noting that it was a case that
“distinguishes Ohio’s position.” Id.
{¶15} As discussed, R.C. 2105.36(A) provides for an exception to the 120
hour rule contained in the presumption of death statute in two circumstances: if there
is language in the will “dealing explicitly with” (1) simultaneous deaths, or (2) deaths
in a common disaster. The Idaho statute includes three circumstances in which the
presumption would not apply: (1) explicit language in the will referring to
simultaneous deaths; (2) explicit language in the will referring to deaths in a common
disaster; or (3) language requiring that the devisee survive the testator or survive the
testator for a stated time period. As Appellant urges, this slight difference makes little
difference in interpretation of these statutes. That said, it is apparent why the Sixth
District would dismiss the Kerlee Court’s interpretation of this statute out of hand.
{¶16} In arguing that the language in Crystal’s will serves as an exception to
the 120 hour presumption of death, it appears Appellant (and similarly, Kerlee) is
utilizing circular reasoning. The contention that the words “if she survives me” and
“[s]hould she predecease me” adequately provides language “dealing explicitly with”
simultaneous or common disaster deaths simply begs the question. R.C. 2105.32 is
a definitional section. It was enacted to define the terms “survivor” and “predecease.”
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Defining what constitutes survivorship and determining under what circumstances a
devisee has been deemed to predecease the decedent are exactly the issues, here.
The presumption of death statute provides that answer when it states that any
individual who passes away within 120 hours of a decedent is considered to have
predeceased that decedent. Appellant would have the exceptions subsume the
language. But in Ohio, by law, one exception to this definition is that the language of
the will at issue must explicitly deal with and address the issue of simultaneous death
or death in a common disaster when discussing the devisee. Virtually every will
names a devisee and an alternate in case the named devisee has predeceased the
testator. Simply providing this alternative does not “explicitly” deal with the
presumption of death contained in the statute. To hold otherwise would render the
operation of the presumption superfluous. Hence, even if the Idaho decision had any
value in Ohio as precedent, and it does not, that decision appears to be wrong
because it is based on circular logic, and has been considered and disregarded by at
least one other Ohio court. In order to meet exception (A) to R.C. 2105.36, the
language of an Ohio testator contained in his or her will must clearly state that
testator’s intention to override the Ohio presumption. The language utilized in the
instant will serves only as broad, general language designating beneficiaries, and not
as the explicit acknowledgment that Ohio has a definitive presumption defining
“survivorship.” Part and parcel of this acknowledgement must be the use of wording
to actively defeat the presumption. Only then does a testator trigger the statute
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allowing an exception to the presumption. No such language is contained in Crystal
Wall’s will.
{¶17} Based on the foregoing, Appellant’s assignment of error is without merit
and the judgment of the trial court is affirmed.
Donofrio, J., concurs.
DeGenaro, J., concurs.