[Cite as Bogar v. Baker, 2017-Ohio-7766.]
                           STATE OF OHIO, MAHONING COUNTY

                                 IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT


CHARLES A. BOGAR                             )    CASE NO. 16 MA 0138
                                             )
        PLAINTIFF-APPELLANT                  )
                                             )
VS.                                          )    OPINION
                                             )
MARK BAKER, et al.                           )
                                             )
        DEFENDANTS-APPELLEES                 )

CHARACTER OF PROCEEDINGS:                         Civil Appeal from the Court of Common
                                                  Pleas, Probate Division, of Mahoning
                                                  County, Ohio
                                                  Case No. 2015 CI 00041

JUDGMENT:                                         Reversed and Remanded.

APPEARANCES:

For Plaintiff-Appellant:                          Atty. Thomas G. Carey, Jr.
                                                  Atty. Matthew M. Ries
                                                  Harrington, Hoppe & Mitchell, LLC
                                                  108 Main Avenue, Suite 500
                                                  Warren, Ohio 44481

For Defendants-Appellees:                         Atty. David P. Powers
                                                  Stacey & Powers Co., LPA
                                                  33 Pittsburgh Street
                                                  P.O. Box 255
                                                  Columbiana, Ohio 44408


JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Carol Ann Robb
                                                  Dated: September 21, 2017
[Cite as Bogar v. Baker, 2017-Ohio-7766.]
WAITE, J.


        {¶1}    Appellant, Charles A. Bogar, the sole specific beneficiary in the last will

and testament of Thomas E. Bogar, appeals the judgment entry of the Probate

Division of the Mahoning County Court of Common Pleas in this will construction

case. Appellant contends that the probate court erred in concluding that a specific

bequest of “the real estate located at 13300 Diagonal Road, Salem, Ohio together

with all contents of said real estate” does not include farm equipment and vehicles

located on the property. (8/31/16 J.E., p. 2.) Appellees are Abraham Alexander,

Benjamin Alexander, Brandon Beeson, Susan Bogar, and Jennifer Bogar, the

residual beneficiaries, and Mark Baker, who is both a residual beneficiary and the

executor of the will. For the following reasons, we find that there is a latent ambiguity

in the will and remand this matter for further consideration by the probate court.

                                  Facts and Procedural History

        {¶2}    This matter was scheduled for an evidentiary hearing before the

probate court, but the parties waived the hearing and submitted the matter on briefs.

Twelve written stipulations and the affidavit of Mary Jane Bogar were the only

extrinsic evidence before the probate court. The following facts are taken from the

stipulations unless otherwise noted.

        {¶3}    Thomas E. Bogar, Appellant’s brother, died testate on June 20, 2014.

An inventory and appraisal of his estate was filed with the probate court on

December 30, 2014 and approved by the court. (5/25/16 Stipulations, p. 1.) Item 9

provides a valuation of $99,705.00 for all personal property found and located at
                                                                                    -2-

13300 Diagonal Road, Salem, Ohio. The inventory and appraisal also includes an

itemized appraisal of the personal property.

       {¶4}   Thomas’s last will and testament contained only two bequests, one

specific and one residual. Item II reads, in its entirety:

       I give, devise, and bequeath to my brother, CHARLES A. BOGAR, if he

       shall survive me, the real estate at 13300 Diagonal Road, Salem, Ohio,

       together with all contents of said real estate, if owned by me at the time

       of my death.

(Thomas E. Bogar Will, p. 1.) The parties stipulated that Thomas owned the real

estate at 13300 Diagonal Road, Salem, Ohio at the time of his death. According to

the affidavit of Mary Jane Bogar, Thomas’s aunt and a resident of 13300 Diagonal

Road, the real estate measured roughly 31 acres, and included a house and out

buildings. (5/25/16 Mary Jane Bogar Aff.) Mary Jane also averred that Thomas was

“the owner of all tools, farm equipment and machinery, all farm vehicles, all lawn and

garden equipment, and all of the contents of all of the outbuildings and garage

building located at the premises.” Id.

       {¶5}   Item III, the residual clause, reads in its entirety:

       All the rest, residue and remainder of my property whether real,

       personal or mixed and wheresoever situated which I may own or have

       the right to dispose of at the time of my death, I give, devise and

       bequeath to ABRAHAM ALEXANDER, BENJAMIN ALEXANDER,

       BRANDON BEESON,             my niece,      SUSAN BOGAR,        my niece,
                                                                                       -3-

       JENNIFER BOGAR, and MARK BAKER, share and share alike or to

       the survivor or survivors of them.

(Thomas E. Bogar Will, p. 1.)

       {¶6}   During the administration of the will, a dispute arose between Appellant

and Baker, who is both the executor and a residual beneficiary, regarding the correct

interpretation of the phrase “all contents of said real estate” in the specific bequest to

Appellant. Appellant interpreted that phrase to include all of the personal and other

property physically located on the real estate on the date of Thomas’s death. Baker

argued that the phrase was to be interpreted to include only household goods and

personalty.

       {¶7}   The probate court agreed with Baker. According to the judgment entry,

the inventory valued Thomas’s tangible personal property at $99,705.00; intangible

personal property at $624,811.06; and real property at $173,070.00, for a gross

estate value of $915,586.06. The appraisal divided the tangible personal property

into three categories:       (1) Trucks-Auto-Farm Equipment; (2) Shop Tools-

Miscellaneous; and (3) Heated Shop. While the appraisal was cited by the probate

court in the judgment entry, it was not included in the record on appeal. The probate

court found that all of the personal property in the category of Trucks-Auto-Farm

Equipment (“vehicles and farm equipment”) passed to Appellees through the residual

clause of the will.

       {¶8}   The probate court stated that there was no evidence showing that

Thomas intended to include the vehicles and farm equipment in the specific bequest
                                                                                    -4-

to Appellee.     The court reasoned that “any item such as a motor vehicle or

specialized farm vehicle or equipment would be excluded from being considered

personality [sic] items due to the fact of their very nature of increased value and the

ability to title such items.” (8/31/16 J.E., p. 2.)

       {¶9}    The probate court’s reliance on the term “personalty” is derived from a

1944 case from the Second District Court of Appeals, McAlpin v. Obenour, 75 Ohio

App. 268, 61 N.E.2d 820 (1944). The McAlpin panel held that a specific bequest of

“all my personal property located in the room now occupied by me” did not include

certificates of deposit or checks, even though the certificates and checks themselves

were found in that room after the death of the testatrix. Id. at syllabus. Because the

probate court found that there was almost no caselaw addressing the evidentiary

standard to be used in will interpretation cases, the court adopted the reasoning in

McAlpin, holding, “[McAlpin] Court relied upon the fact that there was no extrinsic

evidence presented that showed it was the intention of the decedent to give the

Certificates of Deposit and the check to the specific bequest beneficiary.” (Emphasis

in original.) (8/31/16 J.E., p. 2.)

       {¶10} The probate court also relied on a New York case, Ball v. Dickson, 83

Hun 344, 31 N.Y.S. 990 (1894) (cited in McAlpin), in which the court held that a

bequest of “all the personal property in the house and in the other buildings on said

premises” did not include promissory notes, certificates of deposits, and bank

passbooks which were, at the time of the will’s execution, in the safe at the dwelling.

Id. at Headnote. The Ball court held:
                                                                                      -5-

       If we should give to the words “personal property,” in the first clause of

       the will, their broadest and most comprehensive signification, they

       would undoubtedly carry the contents of the safe. Property is divided

       into two general divisions, real property and personal property. Had the

       will failed to dispose of the contents of the safe by the residuary clause,

       there are authorities justifying the giving to such words their broadest

       meaning; but we are not required to adopt that rule here, for, as stated,

       if the property in question was not bequeathed to William, it passed to

       the legatees mentioned in the residuary clause.

Id. at 991-992.

       {¶11} Based on the foregoing caselaw, and the absence of extrinsic evidence

establishing Thomas’s intent to transfer “titled vehicles and farm equipment” to

Appellant, the probate court defined “contents of said real estate” as “all household

goods, personal property furnishing [sic], including all contents of the outbuildings

which are typically found in a home environment.” (8/31/16 J.E., p. 3.) As previously

stated, the probate court determined that motor vehicles, specialized farm vehicles

and equipment were excluded from the specific bequest because they were of

“increased value” and because of “the ability to title” these items. Id.

       {¶12} Finding that an ambiguity existed in the specific bequest because the

meaning of “contents of said real estate” was not clear, the probate court resolved

the ambiguity in favor of the residual beneficiaries using McAlpin and Ball, supra.
                                                                                        -6-

                                            Law

         {¶13} An appellate court reviews the decision of the probate court to construe

the language of a will on a de novo basis as a matter of law. Belardo v. Belardo, 187

Ohio App.3d 9, 2010-Ohio-1758, 930 N.E.2d 862, ¶ 7 (8th Dist.); Church v. Morgan,

115 Ohio App.3d 477, 481, 685 N.E.2d 809 (4th Dist.1996). Hence, we review the

judgment independently and without deference to the determination of the probate

court.

         {¶14} “ ‘In the construction of a will, 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, 565, 752 N.E.2d 258 (2001), quoting Oliver v. Bank One, Dayton, N.A., 60 Ohio

St.3d 32, 34, 573 N.E.2d 55 (1991).          This intent must be ascertained from the

language used in the will. Id. at 34, citing Carr v. Stradley, 52 Ohio St.2d 220, 371

N.E.2d 540 (1977), paragraph one of the syllabus. The words used in the will, “ ‘if

technical, must be taken in their technical sense, and if not technical, in their ordinary

sense, unless it appear[s] from the context that they were used by the testator in

some secondary sense.’ ” Ohio Natl. Bank v. Adair, 54 Ohio St.2d 26, 30, 374

N.E.2d 415 (1978), quoting Townsend's Exrs. v. Townsend, 25 Ohio St. 477 (1874),

paragraph three of the syllabus. All the parts of the will must be construed together,

and effect, if possible, given to every word contained in the will. Id. at paragraph four

of the syllabus.

         {¶15} The court may consider extrinsic evidence to determine the testator’s

intent only when the language used in the will creates doubt as to its meaning. Oliver
                                                                                       -7-

at 34, 573 N.E.2d 55. But while extrinsic evidence may be considered where the

language of the will is ambiguous, where the language of the will is clear and

unambiguous, the testator’s intent must be ascertained from the express terms of the

will itself. Boulger v. Evans, 54 Ohio St.2d 371, 378-379, 377 N.E.2d 753 (1978).

        {¶16} Extrinsic evidence may also be considered to resolve a latent ambiguity

in a will, i.e., an ambiguity that is not apparent from the language used in the will but

arises because “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.” (Emphasis deleted.)

Radzisewski v. Szymanczak, 8th Dist. No. 97795, 2012-Ohio-2639, ¶ 18. “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.” (Emphasis deleted.) Id. at

¶ 19.

        {¶17} Thus, “ ‘[w]here a term in a will is susceptible to various meanings, the

[court] may consider the circumstances surrounding the drafting of the instrument, in

order to arrive at a construction consistent with the overall intent of the testator so as

to uphold all parts of the will.’ ” Sandy v. Mouhot, 1 Ohio St.3d 143, 145, 438 N.E.2d

117 (1982), quoting Wills v. Union Savings & Trust, 69 Ohio St.2d 382, 433 N.E.2d

152 (1982), paragraph two of the syllabus.

        [W]here there is some doubt as to the meaning of the will the court may

        admit extrinsic evidence of the testator's family situation, his business
                                                                                     -8-

      and financial circumstances, the nature and extent of his investments,

      the character and manner of operation of his business and the natural

      objects of his bounty. With such evidence the court is better able to see

      things as the testator saw them and to construe the words used in the

      will as he understood them and to give that construction which he

      intended.

Holmes v. Hrobon, 158 Ohio St. 508, 518, 110 N.E.2d 574 (1953).

      {¶18} A court, however, cannot rewrite a will. Boulger, supra, at 379, 377

N.E.2d 753; Barr v. Jackson, 5th Dist. No. 08 CAF 09 0056, 2009-Ohio-5135, ¶ 45.

“A court has no power to make a new and different will for a testator in contravention

of the language employed in the will.” Kurtz v. Kurtz, 12th Dist. No. CA90-09-017,

1991 WL 84027, *3 (May 20, 1991), citing Cleveland Trust Co. v. Frost, 166 Ohio St.

329, 142 N.E.2d 507 (1957); see also Weygandt v. Ward, 9th Dist. No. 09CA0050,

2010-Ohio-2015, ¶ 10 (“ ‘If the terms and expressions employed by a testator forbid

interpretation by reason of their clarity, a court is without power to change them.’ ”),

quoting Everhard v. Brown, 75 Ohio App. 451, 461, 62 N.E.2d 901 (9th Dist.1945).

                                       Analysis

      {¶19} Appellant advances a single assignment of error:

      The trial court erred in its decision to award the farm to Charles Bogar

      but the farm equipment and machinery to the residual beneficiaries.

      {¶20} The probate court based its decision in this case on the conclusion that

this specific bequest to Appellant is ambiguous. While the phrase “the real estate
                                                                                      -9-

located at 13300 Diagonal Road, Salem, Ohio together with all contents of said real

estate” is not ambiguous on its face, it does appear that an examination of all of the

property located at 13300 Diagonal Road on the date of Thomas’s death creates a

latent ambiguity.

       {¶21} “Contents”     are   defined    as   “something     that   is   contained.”

www.dictionary.com Appellant argues that the definition of “contents” is broader than

the term “personal property.” While that is certainly correct, Appellant’s interpretation

of the language in the bequest is strictly “geographical” in nature: all of the items

physically located within the boundaries of testator’s real estate were bequeathed to

Appellant.   However, a strict application of this interpretation of “contents” would

actually limit the bequest based on the location of the property on the day of

Thomas’s death. In other words, if any of the usual contents of the real estate,

regardless of their practical use or value to the real estate, were at a repair shop or

loaned to a third party, that property would not be included in the bequest and would

appear to pass to the residual beneficiaries due to happenstance, rather than the

intent of the testator.

       {¶22} The probate court’s interpretation of the words “contents of said real

estate,” however, does not appear to address the intent of the testator. The court

relies, instead, on whether the specific item has “increased value,” whether the item

is capable of being titled in accordance with state law, and on whether these items

“are typically found in a home environment.” Relying on his own definition, the court

determined that automobiles and trucks found on the property were not “contents of
                                                                                   -10-

said real estate” and also that pieces of farm equipment, presumably because they

had significant value and were not “typically” found in a “home” were also not

“contents of said real estate,” despite the fact that the real estate in question has

been operated as a farm.

         {¶23} While the probate court attempted to rely on and extrapolate from the

McAlpin and Ball cases, this reliance is equally misplaced.       In these cases, the

property in dispute consisted of certificates of deposit, checks, promissory notes and

bank passbooks. While these articles were undisputably physically located on or in

the real property bequeathed, these articles were merely “representative” of the

goods sought by the parties:       money.    Such articles have been described as

“intangible personal property.” The parties sought to obtain, not the paper certificates

of deposit, but control of the funds the certificates represented. It cannot be disputed

that these funds, like the funds represented by the checks, promissory notes and

passbooks, were not physically located at or on the bequeathed premises and hence,

did not fall under the definition of “contents.” McAlpin and Ball have no application to

the determination of the word “contents” here, because the property in dispute, farm

equipment, trucks and other vehicles (tangible personal property), bear no

resemblance to the money (intangible personal property) being sought in those

cases.

         {¶24} Despite our analytical disagreement with the probate court, we

recognize, and Appellant appears to concede, that automobiles, while they may be

garaged at or parked on the real estate, may not necessarily be “contents” of that real
                                                                                    -11-

estate by their very nature. While they are certainly personal property, it does strain

the ordinary definition of “contents” to reach as far as automobiles. However, the

question here is whether the testator intended these to be “contents of said real

estate.” There appears to be no evidence in the record on this question, beyond the

admission that they were owned by the testator at the time of his death.

       {¶25} On the other hand, trucks and farm equipment present a more difficult

question. Appellant contends that trucks and farm equipment fall within the practical

definition of “contents of said real estate,” because the real estate at issue in this

case is a farm. However, neither party offered any evidence to establish whether the

real estate is an operating farm, or whether the trucks and farm equipment are

necessary to the function or maintenance of the real property.         Evidence of this

nature would certainly be pertinent to determining the intent of the testator in this

regard. While we agree that trucks and farm equipment may fall within the practical

interpretation of the phrase “all contents of said real estate,” particularly if the real

estate is or was at decedent’s death a functioning farm, there is insufficient evidence

in the record to conclude that the probate court erred in excluding them from the

specific bequest.     We again note, however, that the court’s reliance on the

determination that these items of tangible personal property have a high value and

are not usually found in a “home environment” does not meet the standard necessary

to determine the testator’s intent, here.

       {¶26} Unlike a typical civil case, where the burden of proof is assigned to a

specific party, and his or her failure to meet the burden of proof results in judgment
                                                                                    -12-

against that party, the lack of evidence in this case requires remand. The probate

court is solely responsible for interpreting the will in accordance with the testator’s

intent.    In this case, the question is whether vehicles and farm equipment are

“contents of” the testator’s real estate. Because the focus in this matter appears to

have been on the intrinsic value of this disputed property, and because of the

misplaced reliance on inapplicable law instead of on the intent of this testator, the

matter must be remanded to the probate court for a new evidentiary hearing.

                                        Conclusion

          {¶27} For the foregoing reasons, we find that the specific bequest to Appellant

contains a latent ambiguity. We reverse the judgment entry of the probate court and

remand this matter for the probate court to consider extrinsic evidence regarding the

practical use of the trucks and farm equipment identified in the appraisal, whether the

testator intended the automobiles to be “contents of said real estate” and any

additional evidence that may reveal the intent of the testator.


Donofrio, J., concurs.

Robb, P.J., concurs.
