In re Estate of Stockmaster , 2011 Ohio 3006 ( 2011 )

[Cite as In re Estate of Stockmaster, 2011-Ohio-3006.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
IN THE MATTER OF
THE ESTATE OF CASE NO. 13-10-43
STELLA R. STOCKMASTER,
[HAROLD STOCKMASTER – OPINION
APPELLANT].
Appeal from Seneca County Common Pleas Court
Probate Division
Trial Court No. 20071114
Judgment Affirmed
Date of Decision: June 20, 2011
APPEARANCES:
James H. Ellis III for Appellant.
Ronald R. Smith for Appellee.
Case No. 13-10-43
PRESTON, J.
{¶1} Appellant, Harold J. Stockmaster (hereinafter “Harold”), appeals the
judgment of the Seneca County Court of Common Pleas, Probate Division, which
denied his motion for an order authorizing the sale of real property in the estate of
Stella R. Stockmaster. For the reasons that follow, we affirm.
{¶2} This appeal involves a motion filed by Harold acting in his individual
capacity as a legatee under the Last Will and Testament of Stella R. Stockmaster.
The facts are largely not in dispute and are stated as follows. Stella R.
Stockmaster had four children: Harold Stockmaster, Appellee Francis
Stockmaster, Appellee Virginia Ruffing, and Appellee Dorothy Hossler (now
deceased and represented as the Estate of Dorothy Hossler). None of the appellees
filed response briefs in this appeal. On November 2, 1993, Stella R. Stockmaster
executed her Last Will and Testament (hereinafter the “will”). She later died on
November 20, 2006. At the time of her death, Stella owned an undivided one-half
interest in three adjoining parcels of real property in Seneca County, Ohio. These
parcels of real property included a 38.962 acre parcel, a 71.5 acre parcel, and an
81.5 acre parcel.
{¶3} Prior to Stella’s death, Harold owned the other undivided one-half
interest in the 38.962 acre parcel and the 71.5 acre parcel, and had farmed these
parcels of real property most of his adult life. The other undivided one-half
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interest in the 81.5 acre parcel was jointly owned by Harold, Francis Stockmaster,
Virginia Ruffing, and Dorothy Hossler.
{¶4} On April 17, 2007, Stella’s will was admitted to the Seneca County
Probate Court in Case No. 20071114. On that same day, according to the terms of
Stella’s will, Dorothy Hossler and Harold were appointed by the court as co-
executors of the Stella R. Stockmaster Estate.
{¶5} In addition, under Article V, Stella provided Harold with an option to
purchase her one-half interest in “any integral farm unit.” In particular, Article V
stated as follows:
Article V: All the rest and remainder of any interest in any farm
real estate I give to my children, Dorothy A. Hossler, Virginia R.
Ruffing, Francis H. Stockmaster, share and share alike, per
stirpes; Provided, however, my son Harold J. Stockmaster may
purchase this and any other farm real estate at the appraised
price as accepted by the Probate Court of my estate. He shall
have thirty (30) days after the appraisal is approved by the
Probate Court to elect to purchase any integral farm unit, i.e.,
my estate interest in the Fritz Farm, the Eight-one (81) acre
home place, or the Sixty (60) acre parcel of land to the North of
the home place, with the payment for the other children’s share
to be made in full within sixty (60) days after the election to
purchase. The election to purchase must be in writing delivered
to both executors and closing completed within sixty (60) days of
the time of election as set forth above, or the right to purchase
shall lapse.
{¶6} The appraisal and inventory of the property were approved by the
court on November 16, 2007. On that same day, Harold presented his written
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offer to purchase the 38.962 acre parcel and the 71.5 acre parcel pursuant to the
option. Harold’s offer to purchase was accepted by Dorothy Hossler and Harold
Stockmaster, co-executors of the Stella R. Stockmaster Estate, on that same day as
well.
{¶7} Thereafter, it was discovered that a barn from the 81.5 parcel was
encroaching onto the 71.5 parcel. In response, Harold executed an addendum to
his offer to purchase, which included additional acres of land that were a part of
the 81.5 acre parcel. Dorothy Hossler, Dorothy’s husband, and Virginia Ruffing
all signed the addendum on November 26, 2007. Francis Stockmaster and his
wife, Veronica Stockmaster, did not sign the addendum.
{¶8} Procedurally, nothing else happened until Dorothy A. Hossler’s death
on or about September 4, 2009, when, as a result of Dorothy’s death, on December
4, 2009, Harold was appointed the sole fiduciary/executor of the Stella R.
Stockmaster Estate.
{¶9} Thereafter, on June 3, 2010, Harold filed a motion for an order
authorizing the sale of real property in the Estate of Stella R. Stockmaster. On
August 24, 2010, Francis Stockmaster filed a motion in opposition to Harold’s
motion.
{¶10} On August 26, 2010, a hearing concerning Harold’s motion was held.
Consequently, on October 5, 2010, the trial court issued its decision denying
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Harold’s motion and finding that the option to purchase real estate contained in
Article V of Stella’s will had lapsed.
{¶11} Harold now appeals and raises three assignments of error.
ASSIGNMENT OF ERROR NO. I
THE PROBATE COURT FAILED TO PROPERLY
INTERPRET AND FURTHER THE INTENTION OF STELLA
STOCKMASTER AS EXPRESSED IN HER WILL.
{¶12} In his first assignment of error, Harold argues that the trial court
failed to properly interpret and carry out Stella R. Stockmaster’s intention as
expressed in her will.
{¶13} It is well settled that the construction of a will is a question of law,
and thus, we will apply a de novo standard of review. Woolley v. Woolley (2010),
190 Ohio App.3d 18, 2010-Ohio-4177, 940 N.E.2d 620, ¶17, citing Dunkel v.
Hilyard (2001), 146 Ohio App.3d 414, 418, 766 N.E.2d 603, citing McCulloch v.
Yost (1947), 148 Ohio St. 675, 677, 76 N.E.2d 707. The most fundamental tenet
for the construction of a will mandates that the court ascertain and carry out,
within the bounds of the law, the intent of the testator. Woolley, 2010-Ohio-4177,
at ¶17, citing Domo v. McCarthy (1993), 66 Ohio St.3d 312, 314, 612 N.E.2d 706.
Such intention must be ascertained from the words contained in the will. Oliver v.
Bank One, Dayton, N.A. (1991), 60 Ohio St.3d 32, 34, 573 N.E.2d 55. “These
words, ‘if technical, must be taken in their technical sense, and if not technical, in
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their ordinary sense, unless it appear[s] from the context that they were used by
the testator in some secondary sense.’” Polen v. Baker (2001), 92 Ohio St.3d 563,
565, 752 N.E.2d 258, quoting Townsend’s Exrs. v. Townsend (1874), 25 Ohio St.
477, paragraph three of the syllabus.
{¶14} If the language of the will is clear and unambiguous, the testator’s
intent must be ascertained from the express terms of the will itself. Domo, 66
Ohio St.3d at 314. The court may consider extrinsic evidence to determine the
testator’s intent only when the language used in the will creates doubt as to the
meaning of the will. Oliver, 60 Ohio St.3d at 34.
{¶15} Here, the issue on appeal concerns determining Stella R.
Stockmaster’s intention as it relates to the option provision in her will. The
language pertaining to Harold’s option was stated in Article V of the will, and in
pertinent part, provided:
[Harold] shall have thirty (30) days after the appraisal is
approved by the Probate Court to elect to purchase any integral
farm unit, * * * with the payment for the other children’s share
to be made in full within sixty (60) days after the election to
purchase. The election to purchase must be in writing delivered
to both executors and closing completed within sixty (60) days of
the time of election as set forth above, or the right to purchase
shall lapse.
(Emphasis added).
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{¶16} After reviewing the four corners of Stella’s will, we find that the
language contained in the option provision is plain and unambiguous, and that it
demonstrates a clear intention on the part of the testator. Article V clearly
articulates that Stella’s intent was to have this real estate option process start and
end within a specific amount of time, and that if the transaction did not close by
the end of that time then Harold’s right to purchase the property under the will
expired. As the provision explicitly stated, closing had to be completed within
sixty days of the time of the election “or the right to purchase shall lapse.”
{¶17} Harold tries to claim that the sixty day time provision was not a strict
time requirement but rather “evidenced [Stella’s] assumption that Appellant would
obtain some sort of financing” so he could close the transaction. (Appellant’s
Brief at page 8). We find no merit to this argument. In addition to the option
language in Article V, the language contained in the option provision clearly
provides “[a]ll the rest and remainder of any interest in any farm real estate I give
to my children, Dorothy A. Hossler, Virginia R. Ruffing, Francis H. Stockmaster,
share and share alike, per stirpes”; provided Harold did not follow through with
the option. Therefore, we conclude that it was Stella’s intention that in the event
that Harold failed to close on the property within sixty days, Harold’s right to
purchase Stella’s undivided one-half interest in the land would cease, and Stella’s
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undivided one-half interest in the property would pass to Francis, Virginia, and
Dorothy under the first sentence of Article V.
{¶18} While it is clear that Harold timely presented his intention to exercise
the option provided in Article V of Stella’s will for the 71.5 acre parcel and the
38.962 acre parcel, the record indicates that Harold failed to make payment to his
other siblings and failed to close on the real estate property within sixty days from
when he presented his offer to purchase. Accordingly, pursuant to the plain
language of Stella’s will, Harold’s right to purchase the property lapsed. As a
result, we find that the trial court did not err in denying Harold’s motion to force a
sale of the property under Stella’s option provision since it is clear that his rights
under the provision had already terminated.
{¶19} We note that in his first assignment of error, Harold also asserts that
it was impossible for him to comply with the condition subsequent (which was to
close within sixty days) due to an encroachment and interference from his family.
Harold argues that unlike conditions precedent, because it was impossible for him
to have performed the condition subsequent, the trial court should have found the
condition void and declared the devise discharged and free of the condition.
However, we find that his arguments pertaining to conditions precedent,
conditions subsequent, and impossibility, relate more to Harold’s second
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assignment of error, and as such, we will address those arguments in greater detail
below.
{¶20} Harold’s first assignment of error is, therefore, overruled.
ASSIGNMENT OF ERROR NO. II
THE PROBATE COURT MISAPPLIED THE DOCTRINE OF
DEVIATION AND THEREBY FRUSTRATED THE INTENT
OF STELLA STOCKMASTER AS EXPRESSED IN HER
WILL.
{¶21} In his second assignment of error, Harold argues that the trial court
misapplied the doctrine of deviation when it failed to use the doctrine to give
effect to Stella Stockmaster’s clear intention.
{¶22} The doctrine of deviation is a principle that allows variation from the
term of a will or trust to avoid defeating the testator’s original intent. In particular,
the Ohio Supreme Court has stated that by using the doctrine a court can “‘direct
or permit a deviation from the terms of the trust where compliance is impossible or
illegal, or where owing to circumstances not known to the settlor and not
anticipated by him compliance would defeat or substantially impair the
accomplishment of the purposes of the trust.” Daloia v. Franciscan Health
Systems of Cent. Ohio, Inc. (1997), 79 Ohio St.3d 98, 106, 679 N.E.2d 1084,
quoting Scott, Law of Trusts, at 323, Section 381. However, in applying the
doctrine of deviation, the court cannot change the original objective of the testator;
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rather, the doctrine is only used for the purpose of giving effect to the testator’s
intention. Id.{¶23} Here, Harold did not specifically raise the doctrine of deviation
below; however, Harold did argue that due to an encroachment on the 71.5 acre
parcel and interference from his brother, Francis, and his brother’s wife, it was
impossible for him to close within sixty days, and thus he was unable to comply
with the condition subsequent. On appeal, Harold argues that unlike conditions
precedent, because it was impossible for him to have performed the condition
subsequent, the trial court should have found the condition void and declared the
devise discharged and free of the condition. Moreover, he asserts that there is
nothing in the will that would suggest that Stella intended or even contemplated a
lack of cooperation on the part of her children nor the presence of an encumbrance
on one of the parcels of land contained in the option provision.
{¶24} The trial court did consider Harold’s argument that it had been
impossible to comply with the terms of Stella’s will. Nevertheless, the trial court
ultimately rejected Harold’s argument finding that Harold had failed to present
any evidence of a legal impediment preventing the transfer of the 71.5 acre parcel
and the 38.962 acre parcel. (Oct. 5, 2010 JE at 7-8). Rather, the trial court found
that the only evidence presented was that Harold had been unable to obtain the
financing he wanted from the lending institution he wanted at the time he
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exercised his option. (Id.). The trial court went on to reason that it could have
been possible for Harold to close within the sixty day time period since Harold
was able to provide the necessary funds now that he was working through a
different lender. (Id.).
{¶25} There are two kinds of conditions: conditions precedent and
conditions subsequent. A condition precedent is a condition that when it happens
an estate will vest, and a condition subsequent is a condition that defeats an estate
already vested. Megery v. Selymes (1968), 14 Ohio App.2d 28, 31-32, 235 N.E.2d
725. Conditions that involve a devise of real estate that are also impossible to
perform are treated differently depending on whether the condition is a condition
precedent or a condition subsequent. Where a devise of real property is subject to
a condition precedent, which is or becomes impossible of performance, typically
the real property will pass under the residuary clause or as intestate estate. Morley
v. Calhoun (1905), 18 Ohio C.D. 163. However, “‘when a condition subsequent
was impossible at the time of the execution of the will or at the testator’s death, or
when it becomes impossible after the testator’s death, the condition is void and the
devisee or legatee takes the bequest or devise discharged and free of the
condition.’” Megery, 14 Ohio App.2d at 32, quoting 56 Ohio Jurisprudence 2d
252, Wills, Section 741.
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{¶26} Nevertheless, despite Harold’s arguments to the contrary, we do not
believe that it is necessary to discuss the nature of any alleged conditions
contained in the will because we do not believe that the trial court abused its
discretion in finding that Harold failed to demonstrate that performance of the
option was impossible.
{¶27} It is hard to determine from the record exactly why Harold could not
close within sixty days of him presenting his written offer. There was some
evidence that an encumbrance was discovered on the 71.5 acre parcel, and that this
encumbrance had prevented Harold from obtaining financing. Also, there was
some evidence that his brother, Francis, and his brother’s wife had prevented him
from following through with purchase by not signing Harold’s addendum to his
offer to purchase. However, all that is in the record are these general assertions.
None of these issues were clearly presented in way of testimony or documentary
evidence at the hearing nor was there any explanation as to why these issues were
no longer rendering the sale impossible. For example, despite the passage of three
years, the encumbrance still existed, Francis and his wife still refused to agree to
any purchase of real estate from the 81.5 acre parcel, yet again, for some not
clearly articulated reason, Harold was now able to follow through with the
purchase of the two parcels. All we can tell from the testimony and evidence is
that Harold was now going through a different lender and had accepted the fact
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that he would have to purchase the property despite the encumbrance on the 71.5
acre parcel. Given the fact that the reasons for why Harold claims the option
provision was “impossible” to perform still existed at the time he filed his motion,
the fact that despite the presence of these problems, Harold was now (three years
later) able to follow through with the purchase, and the lack of clearly articulated
evidence demonstrating just how those problems rendered the option provision
impossible, we find that the trial court’s decision was not an abuse of discretion.
{¶28} Harold’s second assignment of error is, therefore, overruled.
ASSIGNMENT OF ERROR NO. III
THE PROBATE COURT UNFAIRLY APPLIED THE
DOCTRINES OF LACHES AND ESTOPPEL.
{¶29} In his last assignment of error, Harold argues that the trial court
unfairly applied the doctrines of laches and estoppel when there was evidence in
the record that demonstrated that there were “ongoing and continuous efforts to
close the transaction during the entire 3-year period.”
{¶30} However, again we note that Harold did not specifically raise these
doctrines below. Instead, Harold only implied in his motion that, as a result of the
interference with his family and the discovery of the encroachment, the trial court
should toll or stay the sixty day time limit. In considering Harold’s argument to
toll or stay the sixty day time period, the trial court found as follows:
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Harold Stockmaster implies in his motion that negligence with
his siblings, subsequent to the discovery of the encroachment,
tolls the 60 day closing time period articulated in the Option.
Stella R. Stockmaster died on November 20, 2006. The time,
within which the closing for a real estate transaction
contemplated by the Option, expired nearly three (3) years ago.
To date, no motion has been filed with this Court to toll the
running of any option period or closing date. No evidence is
before the Court indicating any fiduciary appointed in this
Estate agreed to the tolling of the 60 day time period. The Court
therefore finds the 60 day time period to close articulated in the
Option was not stayed or tolled.
(Oct. 5, 2010 JE at 8).
{¶31} After reviewing the record, we find the trial court’s decision was
reasonable given the facts of this case. Again, not only did Harold fail to clearly
articulate why the trial court should toll or stay the sixty day time period, but
contrary to Harold’s arguments, the record is completely void of any documents
demonstrating “ongoing and continuous efforts to close the transaction during the
entire 3-year period.” After drafting the addendum to his offer to purchase, which
his other siblings signed on November 26, 2007, the only other document
pertaining to the sale of the property pursuant to the option provision is Harold’s
motion for order authorizing the sale of real property filed on June 3, 2010 –
almost three years after the expiration of the sixty day time period. While Harold
may claim that during these three years he had been attempting to resolve the
problems and move forward with his right to purchase property under the option in
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Stella Stockmaster’s will, the fact of the matter remains that Harold did nothing in
his individual, nor in his co-executor, capacity to toll the running of the sixty day
option period.
{¶32} Overall, as we stated above, the will is unambiguous and shows a
clear intent on the part of Stella R. Stockmaster that Harold had sixty days after he
presented his offer to purchase to make payment to his other siblings and close on
the property. Not only did Harold fail to do so, but Harold failed to adequately
demonstrate how performance of the option had been impossible or why the sixty
day time period should have been stayed or tolled. Consequently, we find that the
trial court did not err in finding that Harold’s right to purchase the property under
the option had lapsed, and also did not err in denying Harold’s motion to force a
sale of the real property.
{¶33} Harold’s third assignment of error is, therefore, overruled.
{¶34} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
ROGERS, P.J. and WILLAMOWSKI, J., concur.
/jlr
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