Church v. Morgan , 115 Ohio App. 3d 477 ( 1996 )

I respectfully dissent. I agree that Minnie Frances Lacy executed an unambiguous last will and testament on February 27, 1995. However, she did not say in Item II of her last will that the funds must remain in the same specified CDs and savings accounts at the time of her death.

"The court's function in construing a will * * * is to determine and apply the testator's intent as expressed in the language of the whole will, and read in light of the applicable law, and circumstances surrounding the will's execution." Cent.Trust Co. v. Smith (1990), 50 Ohio St.3d 133, 136,553 N.E.2d 265, 269. Courts must ascertain and give effect to the intent of the testator wherever legally possible. The express language of the last will and testament normally provides the court with the indicators of the testator's intentions. "However, * * * other factors must be considered. * * * [V]arious presumptions orrules of construction have historically been utilized by courtsin this area of the law." (Emphasis added.) Id., citing OhioCitizens Bank v. Mills (1989), 45 Ohio St.3d 153, 155,543 N.E.2d 1206, 1208-1209.

"``A will speaks from the time of execution as to its meaning and from the death of testator as to its effect and operation.'"Id. at 137, 553 N.E.2d at 270, fn. 2, quoting 4 Page on Wills (Bowe Parker Rev. 1961) 165, Section 30.26. Pursuant to an established rule of construction, "a general description of * property shows that testator intends the * * * property as [it exists] at his death. A specific description of * * * property so as to distinguish [it] from other * * * property as [it exists] when the will is made, usually shows that testator makes his will with reference to the * * * property * * * as [it exists] at the time that the will is made." 4 Page on Wills (Bowe Parker Rev. 1961) 165, Section 30.26.

Applying the above rule of construction, I believe that the specific descriptions of the bequests in Item II of the will refer to the property as it existed at the exact time Lacy signed the document. Lacy bequeathed "all funds located in" the specified accounts at the time she executed her will. The $90,000 transferred from savings account No. 72424 is money that was funds located in that account at the time Lacy executed her will. Moreover, the $90,000 transferred out of the specified savings account does not pass pursuant to Item III because Lacy did not "acquire or become entitled to [the $90,000.00] after the execution of this Will."

The majority cites In re Estate of Evans (1956), 165 Ohio St. 27, 59 O.O. 43, 133 N.E.2d 128, paragraph two of the syllabus, which states as follows:

"A specific bequest to a designated beneficiary of ``all cash in the box on the desk in the back room of my home' is plain and unambiguous, and such beneficiary, on the death of the testator, takes such amount of cash as is in the box at that time." (Emphasis added.)

I agree. In re Estate of Evans is consistent with the rule of construction cited earlier in this dissent. "All cash in the box" is a general description of property while "all funds located in * * * savings account # 72424" is a specific description of property. Thus, my dissent is not contrary to In re Estate ofEvans.

An example will help illustrate why detailed descriptions usually refer to the time of the execution of the will instead of the date of death. Here, Spring Fleming, of 884 26th Street, Altoona, Pennsylvania, inherits under Item II and Ellene Lacy Cobbs, of New Brighton, Pennsylvania, inherits under Item III. Lacy did not provide that Fleming and Cobbs still had to reside at these addresses to inherit at her death. Thus, I believe Fleming and Cobbs can inherit even if they live at different addresses at the time of Lacy's death. Likewise, I believe Item II identifies funds located in specified CDs and savings account numbers as of February 27, 1995 instead of the date of Lacy's death.

Accordingly, I would overrule all three assignments of error and affirm the judgment of the trial court.