[Cite as Bragdon v. Carter, 2017-Ohio-8257.]


                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                       SCIOTO COUNTY

HEATHER BRAGDON, ET AL.,                               :
                                                       :
        Plaintiffs-Appellants,                         :
                                                       :              Case No. 17CA3791
        v.                                             :
                                                       :              DECISION AND
BELINDA CARTER                                         :              JUDGMENT ENTRY
FKA BELINDA DILES, ET AL.                              :
                                                       :
        Defendants-Appellees.                          :              RELEASED 10/18/2017



                                               APPEARANCES:

William S. Cole, Jackson, Ohio, for plaintiff-appellant Heather Bragdon.

William R. Dever, Portsmouth, Ohio, for defendant-appellee Belinda Carter.



Hoover, J.


        {¶ 1} Plaintiff-appellant, Heather Bragdon, appeals the judgment of the Scioto County

Common Pleas Court denying her claim for declaratory relief and entering judgment in favor of

defendants. This action involves the interpretation of a will executed by Burl Bragdon who died

testate and whose estate was previously administered by the Scioto County Probate Court.

Heather Bragdon asserts that the trial court erred as a matter of law in determining that Burl

Bragdon’s will created a valid restriction on the alienability of the real property devised under

the will. Because the law of this State disfavors restraints on the alienation of real property

devised fee simple, we agree. Accordingly, we reverse the judgment of the trial court.

                                   I. Facts and Procedural Posture
Scioto App. No. 17CA3791                                                                                               2


         {¶ 2} Burl Bragdon died testate in 1998 and owned a tract of real estate at the time of his

death. Burl Bragdon’s will provided in relevant part:

         ITEM IV:

         I give, bequeath and devise my real estate equally to my children and friend,

         BELINDA DILES, BRENDA BRAGDON, BURL BRAGDON II, and BETH A

         NIXON, per stirpes, provided that said real estate not be sold until twenty-one

         (21) years after the death of my granddaughter, MORGAN MCKENZIE DILES,

         born April 14, 1996. It is the purpose of this bequest that my children and their

         heirs shall always have a place to live.1

         {¶ 3} Belinda Carter, fka Belinda Diles, the named executor under the will2, admitted the

will to probate. Shortly thereafter a Certificate of Transfer was issued and recorded in the deed

book of the Scioto County Recorder. The Certificate of Transfer conveyed a one-fourth interest

to Burl Bragdon’s three children and his friend as directed under the will. The Certificate of

Transfer also noted the following: “Said real estate may not be sold until twenty-one (21) years

after the death of Morgan McKenzie Diles, d/b 4-14-96.”

         {¶ 4} On November 9, 2001, the probate court filed an entry that approved and settled the

estate, and discharged the fiduciary, Belinda Carter.

         {¶ 5} In 2004, Belinda Carter conveyed her one-quarter interest in the real property to

Brenda Bragdon. Burl Bragdon II followed suit, conveying his one-quarter interest in the real

property to Brenda Bragdon in 2009. In 2014, Brenda Bragdon and Beth A. Ritchie, fka Beth A.

Nixon, conveyed their respective interests in the real property to Corey Bragdon and Heather
1
  Inexplicably, the record does not include a copy of the will. While various filings, and even trial court entries claim
that a copy of the will is attached as an exhibit, a review of the record reveals no such will. Nonetheless, the parties
agree as to the language of the purported will at issue in this appeal, with the above quoted language coming from
the parties’ appellate briefs.
2
  Again, because a copy of the will does not exist in the record this fact cannot be independently verified. However,
the parties do not dispute this fact.
Scioto App. No. 17CA3791                                                                                          3


Nowlin (aka Heather Bragdon). Thus, as of 2014, Corey and Heather Bragdon were the sole

owners of the devised property.

        {¶ 6} On March 29, 2016, Corey and Heather Bragdon filed a complaint in the trial court

seeking declaratory judgment against Belinda Carter, the Unknown Spouse of Belinda Carter,

Burl Bragdon II, and the Unknown Spouse of Burl Bragdon II. The complaint sought a

declaratory judgment finding that Corey and Heather Bragdon hold marketable title to the real

estate, that the testamentary restriction on the sale of the real estate is null and void, and that they

should be permitted to convey the real estate. Belinda Carter was the only defendant to file a

timely answer.

        {¶ 7} On August 24, 2016, Corey and Heather Bragdon filed a Memorandum seeking to

declare the restriction on alienation void, invalid, and of no legal effect. On October 17, 2016,

Belinda Carter filed a Response to the Memorandum. In her Response, Belinda Carter alleged

that the aforementioned transfers were void and invalid based on the restriction in the will and on

the Certificate of Transfer. On the same date, Morgan McKenzie Diles, by and through her legal

custodian, Belinda Carter, filed an Objection to the Sale of Real Estate. We note, however, that

Morgan McKenzie Diles is not a named party to this action.

        {¶ 8} The trial court held a status conference on November 22, 2016.3 Shortly thereafter,

on January 23, 2017, the trial court entered judgment in favor of the defendants. In the judgment

entry, the trial court found that the restriction on alienation was valid and that the transfer of the

property was a clear violation of Burl Bragdon’s wishes, was contrary to Ohio law, and would

unfairly and unjustly divest Morgan McKenzie Diles of her future interest in the property.

Heather Bragdon then filed a timely notice of appeal.


3
  There is indication in the record that an oral hearing may have been conducted on November 22, 2016. However,
the oral hearing, if it did occur, has not been transcribed.
Scioto App. No. 17CA3791                                                                                4


                                       II. Assignment of Error

        {¶ 9} Heather Bragdon asserts the following assignment of error for review:

Assignment of Error:

        The trial court erred in finding a valid restriction on transfer of the property and
        said transfers were contrary to Ohio law.
                                        III. Law and Analysis

        {¶ 10} “Although the general standard of review in declaratory judgment cases is abuse

of discretion, the trial court’s resolution of purely legal issues in the context of a declaratory

judgment case is reviewed de novo.” Keltz v. Enchanted Hills Community Assn., 4th Dist.

Highland No. 12CA16, 2014-Ohio-866, ¶ 13. This case involves the resolution of a legal issue,

specifically the construction and validity of a provision of a will purporting to restrict the

alienability of devised real property. See Dunkel v. Hilyard, 146 Ohio App.3d 414, 418, 766

N.E.2d 603 (4th Dist.2001) (holding that the interpretation of wills is a question of law).

Therefore, we review this matter de novo.


        {¶ 11} “The case law of Ohio holds that any attempt by a testator to restrain alienation on

a grant of fee simple must be declared void.” Margolis v. Pagano, 39 Ohio Misc.2d 1, 3, 528

N.E.2d 1331 (C.P.1986), citing Hobbs v. Smith, 15 Ohio St. 419 (1864), and Anderson v. Cary,

36 Ohio St. 506 (1881). “While an owner of an absolute estate may transfer an estate less than

whole. i.e., life estate, etc., he cannot take away its inherent quality of alienability and still

transfer it as a fee simple absolute.” Id. “Restrictions on the rights of alienation are simply of no

effect.” Id., citing Murdock v. Lord, 14 Ohio N.P. (N.S.) 156, 31 Ohio Dec. 593 (1913); see also

Ohio Soc. for Crippled Children & Adults, Inc. v. McElroy, 175 Ohio St. 49, 52, 191 N.E.2d 543

(1963) (“This court has held that, where land is devised upon condition that the devisee shall not

sell it, such a restraint is void as repugnant to the devise and contrary to public policy.”).
Scioto App. No. 17CA3791                                                                              5


       {¶ 12} The case of Anderson v. Cary, supra, is similar to the case sub judice. In

Anderson, the will provision at issue had forbidden the sale or encumbrance of the devised

property until a child of the testator, who was 14 at the testator’s death, reached the age of 31.

Anderson at 506, 514. The Ohio Supreme Court, in addressing the provision, found it to be void

because such a restraint, even though it was temporally limited, was repugnant to the fee

conveyed to the recipient and contrary to public policy. Id. at 515, 517. “Thus, a * * * will which

vests in the * * * devisee the title in fee cannot validly impose, either as a condition or as a

simple provision, a restraint against alienation * * * including an attempted restraint that is

limited to a period of years.” 41 Ohio Jurisprudence 3d, Estates, Powers, and Restraints on

Alienation, Section 223 (Sept. 2017 Update).

       {¶ 13} While not entirely clear, it seems that both the trial court, in its judgment entry,

and appellee Belinda Carter, in her appellate brief, contend that the will devises only a life estate

to the devisees; and thus the restriction on alienation is valid. R.C. 2107.51 requires that every

devise of land in a will convey all interest unless it is clearly shown a lesser estate was intended.

In other words, “[a] devise or bequest of a life estate must be clearly expressed to be effective.”

Margolis at 3, citing Schwan v. Meinert, 56 Ohio App. 336, 10 N.E.2d 951 (6th Dist.1937). Here,

the requisite clarity does not exist and a lesser estate has not been devised. Notably, the devise

does not contain a remainder provision. Nor does the provision at issue use the term “life estate”

or any other language indicating that a life estate was intended. Thus, the record before us does

not suffice to prove that the testator intended to devise less than a fee simple absolute.

       {¶ 14} In sum, the real property at issue was transferred in fee simple absolute, and the

portion of the devise attempting to restrict the alienability of the property is void and of no effect
Scioto App. No. 17CA3791                                                                               6


as being repugnant to the devise and the public policy of this State. Thus, the trial court erred in

determining that the restriction was valid.

                                          IV. Conclusion

       {¶ 15} Based on the foregoing, we sustain Heather Bragdon’s sole assignment of error;

and we conclude that the trial court erred by ruling in favor of the defendants in this declaratory

judgment action. Accordingly, we reverse the judgment of the trial court and remand the cause to

that court to enter judgment in favor of Corey and Heather Bragdon.

                                       JUDGMENT REVERSED AND CAUSE REMANDED.
Scioto App. No. 17CA3791                                                                        7


                                     JUDGMENT ENTRY


       It is ordered that the JUDGMENT IS REVERSED AND CAUSE IS REMANDED.
Appellee shall pay the costs.
       The Court finds that reasonable grounds existed for this appeal.

     It is ordered that a special mandate issue out of this Court directing the Scioto County
Common Pleas Court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.

Harsha, J., and Abele, J.: Concur in Judgment and Opinion.




                                                             For the Court

                                                             By:
                                                                   Marie Hoover, Judge



                                   NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and
the time period for further appeal commences from the date of filing with the clerk.
