[Cite as In re Estate of Wall, 2017-Ohio-5713.]
                            STATE OF OHIO, MAHONING COUNTY

                                   IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT


IN THE MATTER OF:                 )                CASE NO. 16 MA 0023
                                  )
        THE ESTATE OF:            )
        CRYSTAL E. WALL, DECEASED )                OPINION
                                  )
                                  )


CHARACTER OF PROCEEDINGS:                          Civil Appeal from the Court of Common
                                                   Pleas, Probate Division, of Mahoning
                                                   County, Ohio
                                                   Case No. 2015 ES 132

JUDGMENT:                                          Affirmed.

APPEARANCES:

For Appellant William (“Bill”) Wall:               Atty. John Ams
                                                   143 Westchester Drive
                                                   Youngstown, Ohio 44515

For Appellee Alexander Wall, Executor:             Atty. Neil H. Maxwell
                                                   Atty. Matthew M. Ries
                                                   Harrington, Hoppe & Mitchell, Ltd.
                                                   26 Market Street, Suite 1200
                                                   Youngstown, Ohio 44503


JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
                                                   Dated: June 27, 2017
[Cite as In re Estate of Wall, 2017-Ohio-5713.]
WAITE, J.


        {¶1}     Appellant, William (“Bill”) Wall, appeals the judgment of the Mahoning

County Common Pleas Court, Probate Division, holding that Willie Mae Wall (“Willie

Mae”) was deemed to have predeceased her daughter, Crystal E. Wall (“Crystal”), for

purposes of determining survivorship. Willie Mae did not survive Crystal by 120

hours as required pursuant to R.C. 2105.32.            Based on a review of the record,

Appellant’s assignment of error is without merit and the judgment of the trial court is

affirmed.

                                  Factual and Procedural History

        {¶2}     Willie Mae and her adult daughter, Crystal, resided together in

Youngstown, Ohio. On October 30, 2014, Willie Mae discovered Crystal’s deceased

body in her home. As a result, Willie Mae suffered a stress-induced event and also

died. It is undisputed that Willie Mae passed away less than 120 hours after the

death of Crystal.

        {¶3}     On March 11, 2015, Crystal’s will was admitted to the Mahoning County

Probate Court. An estate was also opened for Willie Mae, who died intestate. On

July 23, 2015, Appellant, who is Crystal’s brother, filed objections to the inventory of

the estate of Crystal. Appellant is not a named beneficiary under Crystal’s will. He

is, however, heir to any estate of Willie Mae. Appellant contends that Crystal’s estate

should pass to Willie Mae’s estate pursuant to Crystal’s will prior to distribution of

Willie Mae’s estate. Appellee, Alexander Wall, is Executor of Crystal’s estate and

contends that R.C. 2105.32, also known as Ohio’s Presumption of Death Statute,

requires a beneficiary to survive a decedent by 120 hours, otherwise the beneficiary
                                                                                      -2-

is deemed to have predeceased the decedent. His position is that the estate should

devise to the alternative beneficiaries.

       {¶4}   The trial court ordered the parties to submit briefs to the court regarding

R.C. 2105.32 and the survivorship issue. On February 3, 2016, the trial court issued

a judgment entry holding that R.C. 2105.32 precluded the estate of Willie Mae from

inheriting under Crystal’s will because Willie Mae did not survive Crystal by 120 hours

as required by statute. Appellant filed this timely appeal.

                              ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED IN FINDING THAT THE WILL OF

       CRYSTAL WALL DOES NOT FALL WITHIN THE EXCEPTION TO

       THE 120-HOUR RULE CONTAINED IN R.C. 2105.36(A).

       {¶5}   Appellant contends the trial court erred in finding that the language in

Crystal’s will does not cause the will to fall within a statutory exception to the

operation of R.C. 2105.32.

       {¶6}   Questions of statutory interpretation are reviewed de novo. State v.

Best, 7th Dist. No. 04 MA 203, 2005-Ohio-4375, ¶ 34. When interpreting a statute, a

court’s primary concern is the legislative intent behind the enacting of the particular

statute.   State v. S.R., 63 Ohio St.3d 590, 594, 589 N.E.2d 1319 (1992).           It is

axiomatic that a court must look to the language of the statute itself to determine the

legislative intent. Shover v. Cordis, 61 Ohio St.3d 213, 218, 574 N.E.2d 457 (1991).

In undertaking that interpretation, the statute’s words and phrases must be read in

context and construed according to the rules of grammar and common usage.
                                                                                        -3-

Independent Ins. Agents of Ohio, Inc. v. Fabe, 63 Ohio St.3d 310, 314, 587 N.E.2d

814 (1992); R.C. 1.42. Courts cannot ignore the plain and unambiguous language of

a statute in interpreting the statute, but must give effect to all of the words used within

the statute. Johnson’s Markets, Inc. v. New Carlisle Dept. of Health, 58 Ohio St.3d

28, 35-36, 567 N.E.2d 1018 (1991). Thus, a court may not delete language from, or

insert words not present into, a given statute. Cline v. Ohio Bur. of Motor Vehicles,

61 Ohio St.3d 93, 97, 573 N.E.2d 77 (1991).

       {¶7}   The Presumption of Death statute, R.C. 2105.32 reads:

       (A) Except as provided in section 2105.36 of the Revised Code, if title

       to property, the devolution of property, the right to elect an interest in

       property, or the right to exempt property, homestead, or allowance for

       support depends upon an individual's survivorship of the death of

       another individual, an individual who is not established by clear and

       convincing evidence to have survived the other individual by one

       hundred twenty hours is deemed to have predeceased the other

       individual.

       {¶8}   Based on a plain reading of this statute, it provides that if a presumed

heir does not survive the decedent by at least 120 hours, that presumed heir will be

deemed to have predeceased the decedent and is thereby unable to inherit under the

decedent’s will.

       {¶9}   An exception to the operation of this statute is contained within R.C.

2105.36(A), which reads, in pertinent part:
                                                                                     -4-

       Survival by one hundred twenty hours is not required if any of the

       following applies:


       (A) The governing instrument contains language dealing explicitly with

       simultaneous deaths or deaths in a common disaster, and that

       language is operable under the facts of the case.

       {¶10} The exception to the presumption of death rule requires the governing

instrument, in this case Crystal’s will, to “explicitly” deal with simultaneous death or

death in common disaster to circumvent the operation of the presumption. The fifth

section of Crystal’s will reads:

       I give, devise and bequeath all of my estate, whether real, personal or

       mixed of whatever kind and wherever situated, hereinafter referred to

       “my estate” to my mother, Willie Mae Wall, if she survives me. Should

       she predecease me, I then give, devise and bequeath all of my estate

       as follows: [.]

       {¶11} Appellant contends that the language “if she survives me” and “[s]hould

she predecease me” in Crystal’s will is sufficient to trigger the exception to the

presumption of death statute. Citing a decision from the Supreme Court of Idaho,

Appellant argues that Ohio has never interpreted this issue, and seeks to have us

rely on the Idaho Court’s interpretation of its statute, which uses language similar to

the Ohio statute, to determine that the language in Crystal’s will allows her devisee,

Willie May, to inherit if Willie Mae survives Crystal for any period of time.
                                                                                    -5-

      {¶12} The facts of In the Matter of the Estate of Ida D. Kerlee, 98 Idaho 5, 557

P.2d 599, 88 A.L.R.3d 1331 (1976) are as follows: Ira Kerlee died. His sister and

primary beneficiary under his will, Margaret Fogg, died 74 hours later.       Ira’s will

stated that if Fogg predeceased him, Children’s Home Finding and Aid Society was

the conditional beneficiary. The Idaho statute regarding presumption of death, I.C.

15-2-601, provided:

      A devisee who does not survive the testator by one hundred twenty

      (120) hours is treated as if he predeceased the testator, unless the will

      of the decedent contains some language explicitly dealing with

      simultaneous deaths or deaths in a common disaster, or requiring that

      the devisee survive the testator or survive the testator for a stated

      period in order to take under the will.

Ida.Code 15-2-601.

      {¶13} Because the will in Kerlee contained the language “[i]f my sister above-

named does not survive me,” the Idaho Supreme Court held that this language,

alone, was sufficient to overcome the operation of the presumption of death statute

and the exception applied. Id. at 600.

      {¶14} Appellee responds that Ohio courts have affirmatively rejected the

Kerlee decision. In a case interpreting a prior version of the current statute, which

stated that the survivorship period was 30 days rather than 120 hours, the Sixth

District held that Ohio’s presumption of death statute applied to treat the devisee as

predeceasing the testator because the testator did not “specifically or unmistakably
                                                                                        -6-

provide that a named legatee or devisee shall take under the will, even though said

legatee or devisee survives the testator, but by less than thirty days.” In the Matter of

Est. of Tertel v. Tertel, 6th Dist. No. L-83-286, 1984 WL 7760 (Feb. 3, 1984) *3.

Although it was in reference to a prior version of the statute, the court clearly and

affirmatively rejected the holding in Kerlee, noting that it was a case that

“distinguishes Ohio’s position.” Id.

       {¶15} As discussed, R.C. 2105.36(A) provides for an exception to the 120

hour rule contained in the presumption of death statute in two circumstances: if there

is language in the will “dealing explicitly with” (1) simultaneous deaths, or (2) deaths

in a common disaster. The Idaho statute includes three circumstances in which the

presumption would not apply:           (1) explicit language in the will referring to

simultaneous deaths; (2) explicit language in the will referring to deaths in a common

disaster; or (3) language requiring that the devisee survive the testator or survive the

testator for a stated time period. As Appellant urges, this slight difference makes little

difference in interpretation of these statutes. That said, it is apparent why the Sixth

District would dismiss the Kerlee Court’s interpretation of this statute out of hand.

       {¶16} In arguing that the language in Crystal’s will serves as an exception to

the 120 hour presumption of death, it appears Appellant (and similarly, Kerlee) is

utilizing circular reasoning. The contention that the words “if she survives me” and

“[s]hould she predecease me” adequately provides language “dealing explicitly with”

simultaneous or common disaster deaths simply begs the question. R.C. 2105.32 is

a definitional section. It was enacted to define the terms “survivor” and “predecease.”
                                                                                    -7-

Defining what constitutes survivorship and determining under what circumstances a

devisee has been deemed to predecease the decedent are exactly the issues, here.

The presumption of death statute provides that answer when it states that any

individual who passes away within 120 hours of a decedent is considered to have

predeceased that decedent.      Appellant would have the exceptions subsume the

language. But in Ohio, by law, one exception to this definition is that the language of

the will at issue must explicitly deal with and address the issue of simultaneous death

or death in a common disaster when discussing the devisee. Virtually every will

names a devisee and an alternate in case the named devisee has predeceased the

testator.   Simply providing this alternative does not “explicitly” deal with the

presumption of death contained in the statute. To hold otherwise would render the

operation of the presumption superfluous. Hence, even if the Idaho decision had any

value in Ohio as precedent, and it does not, that decision appears to be wrong

because it is based on circular logic, and has been considered and disregarded by at

least one other Ohio court. In order to meet exception (A) to R.C. 2105.36, the

language of an Ohio testator contained in his or her will must clearly state that

testator’s intention to override the Ohio presumption. The language utilized in the

instant will serves only as broad, general language designating beneficiaries, and not

as the explicit acknowledgment that Ohio has a definitive presumption defining

“survivorship.” Part and parcel of this acknowledgement must be the use of wording

to actively defeat the presumption. Only then does a testator trigger the statute
                                                                                  -8-

allowing an exception to the presumption. No such language is contained in Crystal

Wall’s will.

       {¶17} Based on the foregoing, Appellant’s assignment of error is without merit

and the judgment of the trial court is affirmed.


Donofrio, J., concurs.

DeGenaro, J., concurs.
