         [Cite as Chambers v. Davis, 2014-Ohio-2804.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



KAREN CHAMBERS,                                  :      APPEAL NO. C-130635
                                                        TRIAL NO. 2012001662
        Plaintiff-Appellee,                      :
                                                            O P I N I O N.
  vs.                                            :

YVONNE W. DAVIS, Executor of the :
Estate of Bernice Williams, deceased,
                                      :
     Defendant-Appellant,
                                      :
     and
                                      :
COURTNEY V. BUTLER, et al.,

        Defendants.                              :




Appeal From: Hamilton County Court of Common Pleas, Probate Division

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: June 27, 2014


Leslie F. Thomas, for Plaintiff-Appellee,

Norma J. Holt Davis, for Defendant-Appellant.




Please note: we have removed this case from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS




F ISCHER , Judge.

       {¶1}    Bernice Williams died on February 26, 2011. Her daughter, plaintiff-

appellee Karen Chambers, opened an estate in the Probate Division of the Hamilton

County Court of Common Pleas and was appointed administrator. Williams’s sister,

defendant-appellant Yvonne Davis, presented a document to the probate court

purporting to be the last will and testament of Bernice Williams. The will expressly

stated that Williams was leaving nothing to Karen Chambers because she had “been

hostile, arrogant and disrespectful to [Williams] in the last five (5) plus years.” The

will also stated that Chambers’s two sons would receive nothing because they had

“been estranged from [Williams] in the last five (5) years.” The bulk of Williams’s

estate was left to her niece, Tracey Dove. The will had no residuary clause. After a

hearing, at which Dove testified as a witness to the signing of the will, the will was

admitted, and Davis was appointed executor.         Chambers then filed the within

complaint for will construction and declaratory judgment.

       {¶2}    The magistrate determined, after a hearing, that all bequests in the

will were valid, except the bequest to Dove, which was invalidated under R.C. 2107.15

because Dove’s testimony as a witness to the signing of the will had been necessary

for admission of the will.    The magistrate determined that Williams had died

intestate as to the property in the Dove bequest, and therefore, the property would

pass to Chambers under the statute of descent and distribution.            Davis filed

objections to the magistrate’s decision, which the probate court overruled, adopting

the magistrate’s decision. Davis has appealed.

       {¶3}    In three assignments of error, Davis argues that the trial court erred

in determining that Williams’s disinheritance of her daughter became ineffective




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                       OHIO FIRST DISTRICT COURT OF APPEALS



when the bequest to Dove was invalidated. Davis argues that the probate court

should have given effect to Williams’s intent to disinherit her daughter and

grandsons by essentially treating Chambers and her sons as predeceasing Williams

in the descent-and-distribution statutory scheme and awarding the property to

Williams’s siblings.

       {¶4}    The bequest to Dove was correctly invalidated under R.C. 2107.15,

and the will had no residuary clause. “Lapsed legacies and devises go to those

entitled to take under the laws of descent and distribution.” In re Estate of Robert v.

Underwood, 4th Dist. Scioto No. 1838, 1990 Ohio App. LEXIS 1646 (Apr. 26, 1990),

citing Foreman v. Medina Cty. Natl. Bank, 119 Ohio St. 17, 162 N.E. 42 (1928). The

law in Ohio is that “a testator cannot, by any words of exclusion used in his will,

disinherit one of his lawful heirs, in respect to property not disposed of by his will.”

Crane v. Exrs. of Doty, 1 Ohio St. 279 (1853), syllabus. “[T]he heir at law can be

disinherited only by a devise of the property to another.” Mathews v. Krisher, 59

Ohio St. 562, 574, 53 N.E. 52 (1899).

       {¶5}    Davis argues that because Williams attempted to dispose of all her

property by will, and she clearly intended to disinherit her daughter and grandsons

by leaving the property to Dove, this court should “give effect” to her intent and hold

that since Dove is not permitted to inherit the property, it should go to someone

other than Chambers, namely, Williams’s siblings.

       {¶6}    Williams attempted to dispose of all her property by will, but that

attempt failed when the provision leaving property to Dove was invalidated. The will

did not contain a residuary clause or any instruction as to who was to receive the

property in the event that any bequest or devise failed. It is not enough that the will

set forth who was not to get the property; to be valid, any instruction or provision



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must set forth who is to inherit the property if the original bequest or devise is

invalid. See Balyeat v. Morris, 28 Ohio App.2d 191, 276 N.E.2d 258 (3d Dist.1971)

(interpreting R.C. 2107.66, Ohio’s mortmain statute). Therefore, the property passes

by intestate succession to those entitled to take under the statute of descent and

distribution. See In re Estate of Robert at *4, citing Foreman at 17. Ohio law is clear

that Williams could not, by using any words of exclusion, disinherit Chambers with

respect to property not disposed of by her will. See Crane at syllabus. The property

left to Dove cannot, by statute, pass to her under Williams’s will; therefore, the

property must pass to Williams’s lawful heir under the statute of descent and

distribution. Chambers, as Williams’s lawful heir under the statute of descent and

distribution, is entitled to inherit the property.

       {¶7}     The assignments of error are overruled, and the judgment of the trial

court is affirmed.

                                                                   Judgment affirmed.


C UNNINGHAM , P.J., and H ILDEBRANDT , J., concur.


Please note:
       The court has recorded its own entry this date.




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