[Cite as In re Estate of Miller, 2011-Ohio-6327.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                  CHAMPAIGN COUNTY




IN THE MATTER OF                                  :
                                                  :     Appellate Case No. 2011-CA-12
        THE ESTATE OF                             :
                                                  :     Trial Court Case No. 2010-ES-124
                 LOU ELLEN MILLER                 :
                                                  :
                                                  :     (Civil Appeal from
                                                  :     (Champaign County Family Court)
                                                  :
                                                  :
                                               ...........

                                               OPINION

                             Rendered on the 9th day of December, 2011.

                                               ...........

JOHN E. FULKER, Atty. Reg. #0003295, and WILLIAM J. FULKER, Atty. Reg. #0003299,
Faust, Harrelson, Fulker, McCarthy & Schlemmer, LLP, Post Office Box 8, 12 South Cherry
Street, Troy, Ohio 45373
        Attorney for Appellant, Debra DeWeese, Executrix

DIANA WALLEN, 250 Park Avenue, St. Paris, Ohio 43072; JEFFREY LEE MILLER, 1345
Covington Avenue, Apartment B, Piqua, Ohio 45356; and PAUL STEVEN MILLER, c/o
Diana Lou Wallen, 250 Park Avenue, St. Paris, Ohio 43072.
       Appellees, pro se

                                                       .............
FAIN, J.

        {¶ 1} Debra DeWeese, the Executrix of the Estate of Lou Ellen Miller, deceased,
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appeals from an order of the Champaign County Probate Court that orders that a predeceased

child’s share of the estate “must be distributed per stirpes as that is the intention manifested in

the decedent’s Last Will and Testament.” Debra DeWeese contends that the deceased child’s

share of the estate should instead be distributed proportionally to the other, surviving, named

beneficiaries, as provided for in R.C. 2107.52(B), the “Anti-Lapse Statute.”

       {¶ 2} We agree.        Consequently, the order from which this appeal is taken is

Reversed, and this cause is Remanded for further proceedings consistent with this opinion.

                                  I. Lou Ellen Miller’s Will.

       {¶ 3} Lou Ellen Miller died testate in July 2010. Her husband, Paul Miller had

preceded her in death in May 2010. She was survived by four children, Debra DeWeese,

Diana Lou Wallen, Jeffrey Lee Miller, and Paul Steven Miller. A fifth child, Ervin Lee

Miller, died after Mrs. Miller executed her will, but before her death. Ervin Lee Miller died

leaving no issue.

       {¶ 4} The relevant paragraph of Lou Ellen Miller’s will is as follows:

       ITEM THREE: In the event that my husband, Paul Miller, shall die with me in a
       common accident or disaster, or in the event he should die from any cause within thirty
       (30) days of my death, I then give, devise and bequeath my entire estate, to my
       children, namely, in the following shares: Debra DeWeese, 8%; Paul Steven Miller,
       23%; Jeffrey Lee Miller, 23%; Ervin Lee Miller, 23%; and Diana Lou Miller, 23%; or
       their issue per stirpes.


                          II. R.C. 2107.52, the Anti-Lapse Statute.

       {¶ 5} R.C. 2107.52(B) contains provisions dealing with the situation where a

beneficiary named in a will, who is a relative of the testator, is no longer living:

Unless a contrary intention is manifested in the will, if a devise of real property or a bequest of
personal property is made to a relative of a testator and the relative was dead at the time the
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       will was made or dies after that time, leaving issue surviving the testator, those issue shall take
       by representation the devised or bequeathed property as the devisee or legatee would have
       done if he had survived the testator. If the testator devised or bequeathed a residuary estate or
       the entire estate after debts, other general or specific devises and bequests, or an interest less
       than a fee or absolute ownership to that devisee or legatee and relatives of the testator and if
       that devisee or legatee leaves no issue, the estate devised or bequeathed shall vest in the other
       devisees or legatees surviving the testator in such proportions as the testamentary share of
       each devisee or legatee in the devised or bequeathed property bears to the total of the shares of
       all of the surviving devisees or legatees, unless a different disposition is made or required by
       the will.

 Ervin Lee Miller, being the son of the testator, was clearly a relative. Because he left no issue, the

second sentence of the above-quoted statute applies “[u]nless a contrary intention is manifested in the

will.” The second sentence of the statute plainly requires that the deceased relative’s share of the

estate shall vest in the remaining beneficiaries proportionately – that is, it shall be divided among

them in the same proportions as their individual bequests bear to the total of all of the bequests to the

remaining beneficiaries.



                       III. The Executrix Proposes to Distribute the Assets

                            in Accordance with the Anti-Lapse Statute.

               {¶ 6} In a memorandum of law filed in the probate court on May 19, 2011, the

       executrix, Debra DeWeese, proposed to distribute the assets in accordance with R.C.

       2107.52(B). She would receive, as a beneficiary, $5,021.22, or 8-77ths of the total estate, and

       each of the other three beneficiaries would receive $14,435.88, or 23-77ths of the total estate,

       which was $48,328.86. (This court’s arithmetical calculation is within a few pennies of the

       calculation set forth by the executrix.)

               {¶ 7} This proposed distribution is in accordance with the anti-lapse statute. If the

       “missing” 23% of the estate is re-distributed to the beneficiaries of the estate in the same
                                                                                             4


proportions as their bequests bear to the remaining 77% of the estate, simple algebra confirms

that each beneficiary’s resulting share of the total estate will bear that same proportion to the

total. Let a given beneficiary’s proportionate share be S, and let the total estate be E. That

beneficiary’s share of the portion of the estate distributed by the terms of the will to the

beneficiaries who survived the testator is: S x 77%(E). That beneficiary’s share of the portion

of the estate distributed by the terms of the will to the deceased beneficiary is: S x 23%(E). S

x 77%(E) + S x 23%(E) = S x 100%(E). Or, in other words, the proportionate share of that

beneficiary in the whole of the estate [100%(E)] is necessarily the same as the proportionate

share of that beneficiary in each of the sub-portions of the estate: the portion of the estate

distributed to beneficiaries who survived the testator, and the portion of the estate distributed

to beneficiaries who did not survive.



       IV. The Probate Court Rejects the Distribution Proposed by the Executrix.

       {¶ 8} In the order from which this appeal is taken, filed in the trial court on May 23,

2011, the trial court held as follows:

              Pursuant to Ohio Revised Code Section 2017.52(B) the Court finds that Ervin
       Lee Miller’s share must be distributed per stirpes as that is the intention manifested in
       the decedent’s Last Will and Testament. However, this Court would allow the
       Executor’s proposed distribution if a consent and waiver is obtained from each heir.


                                  V. The Executrix Appeals.

       {¶ 9} Debra DeWeese, the executrix of her mother’s estate, has appealed from the

trial court’s order of May 23, 2011. She has also filed with this court a document entitled

Request of All Parties to Place Pending Appeal on Calendar for Submission, which each of
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the four heirs, including herself, has signed, in which it is represented that none of the heirs

contests the appellant’s single assignment of error.

          {¶ 10} It should be noted that Debra DeWeese, the executrix-appellant, in her

individual capacity as heir, is the only one of the four heirs who would be adversely affected

by her prevailing on appeal, since her share of the estate would become smaller as a result, and

the shares of the other heirs would become greater.



                              VI. The Sole Assignment of Error.

          {¶ 11} DeWeese’s sole assignment of error is as follows:

          {¶ 12} “THE TRIAL COURT ERRED IN ITS INTERPRETATION OF THE

PROVISIONS OF           § 2107.52(B) OF THE REVISED CODE OF OHIO AND IN ITS

DETERMINATION OF THE DECEDENT’S INTENTION AS MANIFESTED IN HER

LAST WILL AND TESTAMENT.”

          {¶ 13} We agree with DeWeese’s interpretation of R.C. 2107.52(B), which appears

straightforward. See Kammer v. Raver, 59 Ohio Law Abs. 138, 43 O.O. 302, 96 N.E.2d 439

(1950).

          {¶ 14} We see nothing in Lou Ellen Miller’s will that would require a contrary result.

The final clause of Item Three – “or their issue per stirpes” – is consistent with the first

sentence in R.C. 2107.52(B). If one of the named beneficiaries had predeceased the testator,

but had living issue, then that beneficiary’s share of the estate would be distributed to his or

her issue, per stirpes. That would be in accordance with the statute, and also with the intent

manifested in the clause “or their issue per stirpes” in Item Three of the will. But the
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reference to “per stirpes” is limited by the context of “their issue,” which plainly refers to the

beneficiaries named in Item Three. It is the distribution to issue of a named beneficiary (who

predeceased the testator) that must be per stirpes. Ervin Lee Miller, the deceased beneficiary,

had no issue; therefore, this clause does not apply to his share.

       {¶ 15} DeWeese’s sole assignment of error is sustained.



                               VII. Conclusion and Mandate.

       {¶ 16} DeWeese’s sole assignment of error having been sustained, the order of the

probate court from which this appeal is taken is Reversed, and this cause is Remanded with

directions to the probate court to approve a proportionate re-distribution of Ervin Lee Miller’s

share of the estate, as proposed by DeWeese.

                                                    .............

GRADY, P.J., and HALL, J., concur.



Copies mailed to:

John E. Fulker
William J. Fulker
Debra DeWeese
Diana Lou Wallen
Jeffrey Lee Miller
Paul Steven Miller
Hon. Lori L. Reisinger
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