[Cite as McCoy v. McCoy, 2019-Ohio-5227.]


                                    MCOURT OF APPEALS
                                 GUERNSEY COUNTY, OHIO
                                 FIFTH APPELLATE DISTRICT


KAREN SUE MCCOY, TRUSTEE                    :     JUDGES:
AND INDIVIDUALLY                            :     Hon. John W. Wise, P.J.
                                            :     Hon. Craig R. Baldwin, J.
       Plaintiff-Appellee                   :     Hon. Earle E. Wise, Jr., J.
                                            :
-vs-                                        :
                                            :
EMILY ANN MCCOY                             :
                                            :
       Defendant - Appellee                 :
                                            :
BRANDON MCCOY AND CAMERON                   :
MCCOY                                       :     Case No. 19 CA 05
                                            :
        Defendant-Appellant                 :     OPINION



CHARACTER OF PROCEEDING:                          Appeal from the Court of Common
                                                  Pleas, Case No. 17PV053117

JUDGMENT:                                         Affirmed


DATE OF JUDGMENT:                                 December 12, 2019


APPEARANCES:

For Plaintiff-Appellee                            For Defendant-Appellant

BRENT STUBBINS                                    C. JOSEPH MCCOY
GRANT J. STUBBINS                                 WILLIAM S. MCCOY
59 North Street                                   57 East Main Street
P.O. Box 488                                      Newark, OH 43055
Zanesville, OH 43702

For Appellee Emily Ann McCoy
BRYAN CONAWAY
126 North Ninth Street
Cambridge, OH 43725-1997
Wise, Earle, J.

         {¶ 1} Defendant-appellants Brandon McCoy and Cameron McCoy appeal the

February 1, 2019 judgment of the Guernsey County Probate Court which found plaintiff-

appellee Karen Sue McCoy properly revoked and terminated a 1997 trust created by

herself and her deceased husband Dick McCoy, and properly withdrew the assets of the

trust.

                          FACTS AND PROCEDURAL HISTORY

         {¶ 2} This dispute involves the interpretation of an A-B-C trust (the trust) created

by appellee and her husband Dick McCoy on October 8, 1997. Dick and appellee are

both grantors and trustees of the trust. Appellants Brandon and Cameron are Dick's sons

from a previous marriage. Appellant and Dick had one child in common, Emily McCoy

who is not a party to this appeal.

                                       BACKGROUND

         {¶ 3} Appellee and Dick married in 1989. During their marriage, Dick grew a

hardware business – Orme Hardware -- with the assistance of his father and the financial

assistance of appellee and appellee's father.

         {¶ 4} In 1997, when the trust agreement was created, Dick co-owned one Orme

Hardware store location along with his two brothers. Also at that time, the federal estate

tax exclusion was $600,000, resulting in a taxable event only for estate assets exceeding

that amount. The main purpose of the trust was to minimize tax liability of the couple's

estate upon their deaths.

         {¶ 5} On March 11, 2016 Dick McCoy died leaving appellee as executrix of his

estate. By that time, Dick had bought out his brothers and expanded Orme Hardware to
seven locations which he and appellee managed and operated together. The inventory

filed in Dick's estate listed all shares of Orme Hardware Company as intangible property

valued at $1,792,898.00. Appellee transferred those shares into the trust as directed by

Dick's last will and testament. As of the date of Dick's death, the estate tax credit had

been increased from $600,000 to $5,450,000.

                                   LITIGATION BEGINS

       {¶ 6} Six months after Dick's death, on September 8, 2016, appellee revoked the

trust, and transferred all shares of Orme Hardware to herself. Upon learning of this

transfer, appellants sent appellee a letter challenging her authority to do so. In response,

on October 26, 2017, appellee filed a declaratory judgment complaint. On November 28,

2017, she filed an amended complaint. Appellee set forth four alternative claims. In her

first claim, appellee argued she was entitled to an order declaring she validly terminated

the trust pursuant to Article One of the trust, and validly transferred all of the Orme

Hardware to herself, free from any claims of the trust.

       {¶ 7} Appellee next alternatively argued she was entitled to an order declaring

she validly received one half of the Orme stock outright from Trust A, pursuant to Article

II (A)(2) of the trust, which addresses the death of either grantor, and the remaining half

was validly distributed to her from Trust C, pursuant to Article II (E), as Trust C is for the

benefit of the surviving grantor, free of any claims of the trust.

       {¶ 8} In her third alternative claim, appellee argued she was entitled to an order

declaring pursuant to Article II(C) of the trust, that she validly reallocated the shares of

Orme Hardware stock into Trust C. As a sub-alternative argument in this vein, appellee

argued because no federal or state estate tax liability existed due to changes in IRS rules,
the trial court should reform the trust to provide for the placement of Orme Hardware stock

into Trust C, without reduction of its assets to Trust B, permitting appellee to distribute the

assets to herself, free of any claims of the trust.

       {¶ 9} Finally, in her fourth alternative claim, appellant argued the shares of Orme

Hardware stock should have been categorized are tangible, as opposed to intangible

property in the estate inventory. Then, since Dick's will bequeathed to appellee all tangible

personal property of the estate, appellant would become the sole owner of Orme

Hardware.

       {¶ 10} On December 11, 2017, appellants filed an answer to appellant's complaint

for declaratory judgment as well as counterclaims for tortious interference in the

expectancy of an inheritance, breach of trust and declaratory judgment. In their request

for declaratory judgment, appellants asked the trial court to issue an order declaring that

the trust agreement requires up to $5,450,000 in assets be transferred to Trust B, and

held in Trust B pursuant to the terms of the trust agreement for appellee's lifetime, and

then distributed to appellants and Emily McCoy upon appellee's death.

       {¶ 11} On April 9, 2018, appellants filed a motion for summary judgment in their

favor as to one of appellee's claims. On October 18, 2018, appellee filed a motion for

partial summary judgment in her favor as to appellant's claims of tortious interference in

the expectancy of inheritance and breach of trust. On December 12, 2018, the trial court

denied appellant's motion and granted appellee's motion for partial summary judgment.

The declaratory judgment matter was set for a bench trial.

                           DECLARATORY JUDGMENT TRIAL
       {¶ 12} The trial was held on December 18, 2018. Brandon and Cameron both

testified. Cameron indicated he was never involved in the hardware business. He stated

he and his father had one conversation in 2012 regarding whether Cameron desired to

work at Orme Hardware. Cameron declined, stating he was happy with his career

trajectory in teaching. According to Cameron, his father told him the door would always

be open should he change his mind, and that he, Brandon, and Emily were set to "inherit

these."

       {¶ 13} Brandon testified he began working for his father in 2012. Dick sent Brandon

to a 4-month program through the National Hardware Retail Association so Brandon could

gain a better understanding of office skills, human resources, and customer service. In

an e-mail to the Association as Brandon's sponsor for the program, Dick stated the course

could be used by Brandon on the job "and ultimately will be of great benefit to our

company and his future." Brandon took this to mean he would be "part of that succession

plan, part of the next in line." He further testified that in April 2014, Orme obtained a key

man life insurance policy for him. Brandon believed this signified that he held an important

role within the company.

       {¶ 14} In July 2014, Dick purchased the Arcanum store. At trial, Brandon

introduced a local newspaper article about the purchase which included a photo of Dick

and Brandon titled "New Owners Dick and Brandon McCoy." Brandon explained this was

because he was "heavily involved with the company and involved in discussions with my

father to acquire this location." He admitted however, that he never personally put any

money into the endeavor.
       {¶ 15} Before Dick's death, Brandon was managing the stores located in Newark

and Arcanum, making $25 an hour, driving a company vehicle, and using a company gas

card. Immediately following Dick's death, Brandon and appellee had a conversation in

front of Cameron and his wife regarding closing the stores for Dick's funeral, at which time

appellee stated "The stores are yours, you figure it out." Brandon took this to mean all the

stores had passed to him upon his father's death. His belief stemmed in part from the fact

that in 2014, Dick consulted with a strategic tax planning firm to look into a succession

plan and had discussed the matter with Brandon. Dick told Brandon he was looking into

the matter so that Brandon "may have the business one day." Brandon admitted,

however, that his father never went through with the succession plan, and admitted on

cross-examination that appellee did not gift the stores to him after his father's death.

Brandon further testified that he had an agreement with his father to buy Orme Hardware,

but admitted they never discussed price, nor were there any contracts or promises.

According to Brandon, these conversations took place in 2014, and no further

conversations on the subject ever took place.

       {¶ 16} Sometime after Dick's funeral, appellee asked Brandon to develop a

business plan for the Newark and Arcanum stores. She advised that if it was good

enough, he could keep his job. Instead of working on a business plan, however, Brandon

testified he went home and worked on his resume and an exit plan. A month later,

Brandon had a meeting with appellee and two other Orme Hardware board members who

advised Brandon his business plan was inadequate. He was given the option to quit, be

fired, or to work under a manager at a store 70 miles away from his home at minimum

wage and without a gas card. Brandon stated he worked at that store for 3 days before
asking appellee if he could be laid off so that he could collect unemployment, Appellee

granted his request.

       {¶ 17} Appellee testified that she met Dick in 1988 and they married in 1989. When

the trust was executed, they did not yet own anything. Dick acquired the Cambridge Orme

Hardware store in 2007, which was the only store at the time. Dick's father had previously

divided all the shares of Orme Hardware between Dick and his two brothers. In 2007,

Dick and appellee used appellee's inheritance from her grandfather to buy out Dick's

brothers. Before the buyout, Dick's parents had deeded the property upon which the

Cambridge store is situated to appellee. She remains the owner of that property.

       {¶ 18} As for the trust, appellee stated its sole purpose was to avoid paying estate

taxes, and that upon advice from an attorney, she believed the trust was revocable, and

believed she acted within her authority when she revoked the trust and withdrew its

assets. Appellee's understanding of the trust was that the surviving spouse would take

all, and upon the surviving spouse's death, the children would then be the beneficiaries

of any remaining assets. She additionally testified the trust contains a second-to-die

insurance policy that was valued at $500,000 at the time of the hearing. This policy is for

the benefit of the 3 children, but appellee testified she was considering allowing the policy

to lapse. Its purpose in 1997, she said, was for the children to have something should she

and Dick meet a common untimely death while the children were still minors, as they had

few assets at the time.

       {¶ 19} Appellee additionally testified as to her conversations with Dick just before

his demise. Asked what she should do with the stores, Dick told her that was for her to
decide. In discussing Brandon's role, Dick advised appellee "You know, he doesn't know

a damn thing. I can’t teach him anything. But you can give him a chance if you want."

       {¶ 20} Appellee explained that Brandon had been working mostly at the Arcanum

and Newark stores which were to be his focus. After Dick's death the board of directors

had questions for Brandon that Brandon could not answer. Her father-in-law, who sits on

the board, advised she needed to fire Brandon. She asked the board if she could send

Brandon to another store to work under her best manager in hopes he would learn how

to run a store. This, according to appellee is why Brandon was transferred and his pay

cut. She wanted to keep him and the board wanted to fire him. She did, however, permit

him to keep a company truck and credit card. Appellee testified Brandon worked for 5

days before he decided he could not accept these terms and quit. Appellee nonetheless

allowed him to collect unemployment.

       {¶ 21} Asked about the conversation regarding closing the stores for Dick's

funeral, appellee explained she merely meant that since Brandon was managing the

Arcanum and Newark stores, it was his decision as to whether they would be closed for

Dick's funeral. She did not gift him any stores, nor did he offer to buy any stores.

       {¶ 22} On cross-examination, appellee identified appellant's exhibit 1, the

succession plan referred to by Brandon. According to the document Dick hired a strategic

tax advisor in 2013 and indicated he would like to transfer the business to Brandon within

the next 10 years with as little tax consequence as possible to himself, Brandon, and

Orme. Appellee stated she and Dick had discussed the succession plan. She explained

that Dick was trying to protect Brandon as he was seen as the child who would need the

most help to take care of himself and his family. At some point, Brandon had stated he
did not want to work for his father. He then tried teaching, but when that did not go well

for him, Dick asked Brandon if he wanted to come into the business. The plan indicated

Dick would not be giving Brandon the business, but rather Brandon would be buying the

business. Dick paid $11,600 toward formulation of the $40,000 plan, but then never

followed through with completion of the plan. Appellee stated Dick wanted to believe the

best in Brandon, and was hoping for the best in Brandon. But as time went on, he realized

Brandon was incapable of attaining appropriate business goals.

       {¶ 23} The portion of the succession plan that was completed indicated Dick and

appellee had a revocable living trust.

       {¶ 24} John Bennett testified on behalf of appellants. Bennett worked for Dick for

11 years handling accounts payable. He stated that during that time, appellee never held

a management position, but rather only handled money transfers. He confirmed that

appellee's father loaned Dick the money to purchase the Arcanum store because Dick

could not get a bank loan. He further confirmed that Dick never paid for completion of the

succession plan.

       {¶ 25} Bennett testified Dick never gave him any indication he was displeased with

Brandon's work. He further stated that Dick once told him that appellee and Emily would

be well cared for through appellee's family should something happen to him, and that he

"wanted the boys to get something out of this." Bennett clarified that he did not know

about the succession plan until after Dick's passing. He found the document while

cleaning out a safe and read though it once. It appeared to Bennett that Dick was planning

to retire at 70. Bennett did not know if he named anyone to take over the business. In

Bennett's opinion, "Brandon knew more about the hardware business than anyone else."
He indicated that Brandon did everything his father asked him to do, but was then

demoted after Dick died. He testified that following Dick's passing, he heard appellee tell

another employee she needed to "break the trust." On rebuttal, appellee denied this

allegation.

       {¶ 26} At the conclusion of testimony, counsel for both sides opted to submit

closing argument in writing and further to submit proposed findings of fact and

conclusions of law.

       {¶ 27} On February 1, 2019, the trial court issued its judgment entry adopting

appellee's findings of fact and conclusions of law as its own. The court concluded (1) the

trust gave appellee the authority to revoke the trust and withdraw its assets; (2) appellee

acted properly and upon the advice of counsel in revoking and terminating the trust, and

(3) appellee is now the sole owner of Orme Hardware.

       {¶ 28} Appellants filed an appeal and the matter is now before this court for

consideration. They raise two assignments of error as follow:

                                             I

       {¶ 29} "THE TRIAL COURT ERRED BY CONCLUDING THAT THE TRUST

AGREEMENT GIVES KAREN AUTHORITY TO REVOKE THE TRUST AND

WITHDRAW ITS ASSETS."

                                            II

       {¶ 30} "THE TRIAL COURT ERRED BY CONCLUDING THAT KAREN IS NOW

THE SOLE OWNER OF THE STOCK OF ORME HARDWARE AND THAT SHE ACTED

PROPERLY AND UPON ADVICE OF COUNSEL IN REVOKING AND TERMINATING

THE TRUST AND WITHDRAWING ITS ASSETS."
                                             I, II

       {¶ 31} We address appellant's assignments of error together. Appellants argue the

trial court erred by finding appellee had the authority to revoke the trust and withdraw its

assets. Appellants further argue this finding was against the manifest weight of the

evidence. We disagree.

                                STANDARD OF REVIEW

       {¶ 32} We review an appeal from a declaratory judgment de novo. Per the

Supreme Court of Ohio in Arnott v. Arnott:



              The determination of the meaning of the disputed language of the

              trust at the heart of this case is a question of law. “A court's purpose

              in interpreting a trust is to effectuate, within the legal parameters

              established by a court or by statute, the settlor's intent.” Domo v.

              McCarthy, 66 Ohio St.3d 312, 612 N.E.2d 706 (1993), paragraph one

              of the syllabus. Interpreting a trust is akin to interpreting a contract;

              as with trusts, the role of courts in interpreting contracts is “to

              ascertain and give effect to the intent of the parties.” Saunders v.

              Mortensen, 101 Ohio St.3d 86, 2004-Ohio-24, 801 N.E.2d 452, ¶ 9.

              This court has held that “[t]he construction of a written contract is a

              matter of law that we review de novo.” Id. The same is true of the

              construction of a written trust; in both In re Trust of Brooke, 82 Ohio

              St.3d 553, 697 N.E.2d 191 (1998), and Natl. City Bank v. Beyer, 89

              Ohio St.3d 152, 729 N.E.2d 711 (2000), this court applied a de novo
              standard of review in interpreting trust language in appeals of

              declaratory judgments.



       132 Ohio St.3d 401, 2012-Ohio-3208, 972 N.E.2d 586 ¶ 14.



                            REVOCABLE OR IRREVOCABLE?

                                     Dick McCoy's Will

       {¶ 33} This dispute hinges upon whether the trust agreement was revocable or

irrevocable. Appellants state the judgment entry being appealed does not specify if the

trust authorizes appellee's actions or if the trial court reformed the agreement. Our

examination of the judgment entry reveals the trial court clearly found the trust agreement

granted appellee the authority to revoke the trust and withdraw its assets. Judgment

Entry, February 1, 2019, page 5. We therefore confine our analysis to appellant's

arguments regarding whether or not the trust granted appellee that authority. Appellants

argue appellee did not have the authority to revoke the trust agreement for two reasons;

first because it was created before 2007 and is therefore irrevocable unless it expressly

provides otherwise, and second because appellee was not the grantor with respect to the

Orme Hardware stock, she had no authority to withdraw said shares.

       {¶ 34} Appellants argue the trust is unambiguous, and we agree. However, we find

it unambiguously grants appellee the authority to revoke the trust and withdraw its assets.

       {¶ 35} When Dick passed, Trust A was funded per the directives of his will with

property held in Dick's name. The relevant portion, of the will, Item III, states:
       A. All the rest, residue and remainder of my property, of whatsoever

       kind and wheresoever situated (herein referred to as my "residuary

       estate"), I give, devise and bequeath to the Trustee, in augmentation

       of the property held by the Trustee under the terms of the Agreement

       of Trust referred to above.

       B. My intention is to identify said Agreement of Trust, but not to

       incorporate the same by reference into this Will, nor to cause my

       residuary estate, after the delivery thereof to the Trustee under the

       Agreement of Trust to be subject to the jurisdiction of the Probate

       Court, but to add such residuary estate to the property constituting

       the trust estate under the Agreement of Trust. However, if for any

       reason a court of competent jurisdiction shall declare this bequest

       and devise to said Trustee to be invalid, then I give, devise and

       bequeath all of the said residuary estate to Trustee, to serve without

       bond, to be held, managed and distributed in exactly the same

       manner as described in said existing Agreement of Trust, which

       under such circumstances I do herby incorporate by reference into

       this Will.



                        THE TRUST AGREEMENT

                             Relevant Portions

{¶ 36} Article One of the trust creates Trust A. That section states:
              A. INTEREST IN TRUST DURING GRANTOR'S LIFETIME: Unless

             otherwise indicated below, the entire trust estate shall be held and

             administered by Trustees as Trust A. During the lifetime of either

             Grantor, the Grantors shall have a retained life interest in all the items

             of the trust estate of Trust A and the Trustees shall pay to or for the

             benefit of the Grantors all of the net income derived from the assets

             of Trust A on monthly or other convenient installments, but not less

             frequently than annually. * * *



       {¶ 37} Section B of Article One sets forth certain rights retained by grantors.

Relevant here are sections Article One (B)(2) and (3) which states grantors retain the

rights to:



             2. Withdraw from time to time, from the operation of the Agreement

             of Trust, portions or all of said assets and property at any time

             Constituting Trust A and when so withdrawn, such assets and

             property shall be free of all trusts created or arising by virtue hereof;

             and

             3. Revoke, alter or amend this Agreement of Trust with regard to

             Trust A, in part on in its entirety, and if such Agreement is revoked in

             its entirety, to pay Grantors or to order of Grantors all of said assets

             and property, together with accumulated net income, if any, then
             constituting the trust estate of Trust A free of all trusts created or

             arising hereunder.



       Emphasis added.



      {¶ 38} This language gives appellee a life interest in Trust A, but yet the power to

proceed exactly as she did – to revoke Trust A and withdraw its assets. However, Article

Two of the trust addresses administration of the trust upon the death of a grantor. Article

Two (A)(2) addresses the situation here:



             2. IF EITHER GRANTOR SURVIVES THE OTHER GRANTOR BY

             SIX MONTHS: After the death of either Grantor (deceased Grantor),

             and if the other Grantor (surviving Grantor) survives the deceased

             Grantor for a period of six months or more, the Trustee, as of the

             date of the deceased Grantor's death, shall set aside from Trust A

             as a separate trust designated as Trust C for the benefit of the

             surviving Grantor and amount equal to one-half of the entire trust

             estate of Trust A (as the same shall be constituted after being (i)

             augmented by property received or to be received as a consequence

             of the deceased Grantor's death, including, without limitation, any

             property received or to be received under the terms of the deceased

             Grantor's Last Will and Testament and/or Codicil thereto, (ii)
               depleted by the property set aside for Trust B pursuant to the

               provisions of Paragraph B and C of this Article Two * * *



         {¶ 39} This section directs appellee, who survived Dick by six months, to deposit

half the value of Trust A in to Trust C, Trust C being for appellee's own benefit but depleted

by an amount set aside for Trust B pursuant to Article Two, paragraphs B and C which

state:



               B. PROPERTY TO BE SET ASIDE FROM TRUST C: The property

               placed in Trust C shall be reduced by an amount if any, needed to

               increase the deceased Grantor's taxable estate (for federal estate

               tax purposes) to the largest amount that, after allowing for the unified

               credit against the federal estate tax and the state death tax credit

               against such tax (but only to the extent that the use of such state

               death tax credit does not increase the death tax payable to any state)

               will not result in a federal tax being imposed on the deceased

               Grantor's estate based solely upon the amount of the estate transfer

               to Trust B. All such property shall be set aside in Trust B to be held

               as described below in Article Three.



         Emphasis added.



         {¶ 40} Article Two paragraph C states:
             C. GENERAL PROVISIONS RELATING TO TRUST C: With respect

             to the forgoing Paragraph B of this Article Two, it is Grantors'

             intention that all federal estate tax credits available to either Grantor's

             estate, including, but not limited to, the federal credit for state death

             taxes under Section 2001 of the Internal Revenue Code be

             considered for the maximum extent available in determining the

             amount allocable under the forgoing Paragraph B, even if in so doing

             a federal tax liability is created. For purposes of the forgoing

             Paragraph B and this Article Two, the terms "taxable estate,"

             "adjusted taxable gifts," "federal estate tax," and "credits against the

             federal estate tax" and any references thereto shall be defined and/or

             computed as provided in Chapter 11, Internal Revenue Code. The

             words "Internal Revenue Code" and all references thereto shall

             mean the Internal Revenue Code of 1986, as amended. The part of

             the trust estate set aside pursuant to the provisions of the foregoing

             Paragraphs A and B of this Article Two as a separate trust for the

             benefit of surviving Grantor shall be known as Trust C. The Trustee

             for Trust A shall be set forth in Article Seven thereof.



      {¶ 41} Article Seven simply indicates trustees under the agreement shall be the

trustees named at the beginning of the agreement – Dick and appellee – "who shall each
have the authority to act on behalf of the Trust" unless either is unwilling or unable to

serve or continue to serve.

       {¶ 42} Thus upon the date of Dick's death, half of the Orme stock remained in Trust

A and half flowed to Trust C.

       {¶ 43} Paragraphs D and E of Article Two address the administration of Trust C

following the death of the deceased Grantor. Like Trust A, Paragraph D states the

surviving Grantor shall have a life interest in all items of Trust C, but paragraph E states

the Trustee is authorized "to pay to or for the benefit of the surviving Grantor all of the

principal or such portions of the principal of Trust C as the surviving Grantor may from

time to time request." Emphasis added.

       {¶ 44} While the trust does direct Trust B to be funded with as much property as

possible without incurring federal estate tax liability, due to a change in the federal estate

tax exclusion between the time appellee and Dick created the trust and Dick's death, the

estate here incurred no federal estate tax liability and there was no need to shelter any of

the assets of the trust from federal tax liability. Per Article two paragraph B, it was not

necessary to reduce Trust A by any amount to fund Trust B. Thus Trust C contains half

the property from Trust A and appellee was empowered by the terms of the trust to revoke

Trust A and withdraw its assets, and to withdraw all of the assets of Trust C.

       {¶ 45} Still, appellants characterize Trust B as a bypass trust and argue it was to

be used to shelter as much of Dick's estate as possible for their future inheritance. They

support this argument by pointing to Article Three Section A of the trust. That section

reads in relevant part:
              A. ADMINISTRATION OF TRUST B. The trustee shall set aside and

              pay into a separate fund to be known as Trust B, all of the assets

              received by Trustee as a consequence of the death of the surviving

              Grantor and all assets directed to Trust B by this agreement, or

              otherwise, including all assets and interests in assets, if any,

              received by Trustee under the provisions of the deceased Grantor's

              Last Will and Testament and Codicils thereto * * *.



              Emphasis added.



       {¶ 46} This section refers to the procedure to be followed upon appellee's death,

by a successor trustee and directs any assets received as a consequence of appellee's

death be directed to Trust B along with all assets directed to Trust B as a result of Dick's

death. But again, due to changes in federal estate tax, it was not necessary to fund Trust

B when Dick passed away.

       {¶ 47} Thus, the trust unequivocally grants appellee the right to revoke Trust A,

and the ability to request all of the principal of Trust C. We therefore find appellee acted

within her powers as set forth in the trust agreement.

       {¶ 48} As for appellant's argument that appellee was not the grantor of the Orme

stock and thus has no revocation rights in regard to the stock, we note appellants

presented no testimony as to whether the stock was traceable solely to Dick. Conversely,

appellee testified it was her inheritance from her grandfather that permitted she and Dick

to buy out Dick's brothers to begin growing Orme Hardware, the financial assistance of
her family that made the purchase of the Arcanum store possible, and that she and Dick

owned and managed the stores together. We therefore reject appellants' sole grantor

argument.

       {¶ 49} Although we find the trial court did not reform the trust, and that the Trust

agreement is unambiguous and speaks for itself, we address appellants' manifest weight

arguments for the sake of thoroughness. On review for manifest weight, the standard in

a civil case is identical to the standard in a criminal case: a reviewing court is to examine

the entire record, weigh the evidence and all reasonable inferences, consider the

credibility of witnesses and determine "whether in resolving conflicts in the evidence, the

jury [or finder of fact] clearly lost its way and created such a manifest miscarriage of justice

that the conviction [decision] must be reversed and a new trial ordered." State v. Martin,

20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). In State v. Thompkins, 78

Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting Black's Law Dictionary 1594 (6th

Ed.1990), the Supreme Court of Ohio explained the following:



              Weight of the evidence concerns "the inclination of the greater

              amount of credible evidence, offered in a trial, to support one side of

              the issue rather than the other. It indicates clearly to the jury that the

              party having the burden of proof will be entitled to their verdict, if, on

              weighing the evidence in their minds, they shall find the greater

              amount of credible evidence sustains the issue which is to be

              established before them. Weight is not a question of mathematics,

              but depends on its effect in inducing belief." (Emphasis sic.)
       {¶ 50} In weighing the evidence, however, we are always mindful of the

presumption in favor of the trial court's factual findings. Eastley v. Volkman, 132 Ohio St

.3d 328, 2012-Ohio-2179, 972 N.E.2d 517.

       {¶ 51} Appellants place a good deal of weight on the incomplete succession plan.

This piece of evidence, however, cuts both ways for appellants. It demonstrates that at

one time Dick had considered a succession plan, but also demonstrates that he

abandoned the idea, even after spending a significant amount of money towards its

completion. So too, Dick's death was not sudden, but rather the result of an extended

illness. He could have amended the trust but did not.

       {¶ 52} Appellants also spend a good deal of their brief rehashing how Brandon

was treated following his father's death, and what their own expectations were based on

a few comments made by Dick in 2014. These events, however, had little to do with the

issue before the trial court and now before us – whether or not appellee had the authority

to revoke the trust and withdraw its assets. We have found above that the trust speaks

for itself, and granted appellee the authority to proceed exactly as she did, and we further

find in any event, the trial court's finding was not against the manifest weight of the

evidence.



       {¶ 53} The judgment of the Guernsey County Probate Court finding appellee acted

within her properly granted authority under the 1997 Trust Agreement, is affirmed.
By Wise, Earle, J.,

Wise, John, P.J, concurs separately and

Baldwin, J., dissents.




EEW/rw
Wise, J., concurring

       {¶54} I concur with the majority opinion. I write separately, as I do not base my

opinion on the extraneous facts pertaining to the lives of the parties prior to the death of

the grantor. The document speaks for itself, even if it is somewhat slurred in its speech.

The trust language is not as clear as it could be in expressing its purpose. As the majority

notes, there is nothing indicating it was drawn for the purpose of protecting assets for the

grantor’s heirs. The trust provisions in question speak to tax consequences and the desire

to minimize any such tax consequences.

       {¶55} The key words in the trust are found in Article Two Section B. The words

“if any, needed” either refer to the overall need to secure maximum tax savings or are

simply a mathematical formula used to fund Trust B without purpose of tax savings. If the

grantors simply wanted to leave an amount to their heirs, they could have done so without

need to reference any mathematical formula related to estate taxes. Due to the change

in the tax laws from the date of the creation of the Trust, there was a significant change

in the amount that would be transferred to Trust B. Whether or not the Grantors knew of

the changes would be pure speculation on the part of this Court. Because it would be

speculation, an analysis of the resulting changes on the Trust is unnecessary. Whether

having that knowledge the grantors impliedly approved the resulting change as to the

effects of that clause on the trust is also unnecessary.

       {¶56} The analysis of the purpose of the Trust begins and ends on the date the

Trust was created. I read the language “if any, needed” to refer to the minimization of

any tax implications to the “entire estate”. Because I believe that is the proper reading of

the purpose of the Trust, I would find it was unnecessary to deplete Trust C by any
amount. No amount was “needed“ to be transferred to Trust B to secure any tax savings

for the grantor’s estate.

       {¶57} I would therefore find that the ½ share of Trust A which went to Trust C

should not be depleted by any amount. Appellee therefore had the right to use the assets

in Trusts A and C in any way she deemed proper per the authority granted the trustees

in Trusts A and C.

       {¶58} I therefore concur in the results of the majority opinion and would affirm the

decision of the trial court.
Baldwin, J., dissenting

       {¶59} I respectfully dissent from the majority’s decision that Appellee had the

authority to revoke the Trusts and withdraw the assets. I would find that the pertinent

language in the Trust Agreement, Article Two, Paragraph B, is still valid and enforceable

despite the absence of a tax liability for the deceased grantor’s estate, that the language

requires funding of Trust B, and that Trust B is irrevocable.

       {¶60} The majority concludes that “while the trust does direct Trust B to be funded

with as much property as possible without incurring federal tax liability” a change in the

tax law renders that requirement unnecessary as there was no need to shelter any of the

trust assets from federal tax liability. The majority also rejects the argument that Article

Three, paragraph A has any impact as it “refers to a procedure to be followed upon

appellee’s death” and thus has not yet been triggered.          I believe the majority has

misinterpreted both provisions.

       {¶61} Article Two, Paragraph C serves only as a limit to the amount of the assets

that should be transferred from Trust A to Trust B. The trust agreement clearly requires

that a sum be transferred to Trust B in an amount that does not result in a federal tax

liability to decedent’s estate. The fact that a change in the law has eliminated the federal

tax liability does not alter the requirement of the transfer, but it does eliminate the

limitation. The same result would have occurred if, instead of eliminating the estate tax,

the limit was raised sufficiently to eliminate any tax consequence.

       {¶62} The majority emphasizes the reference to the phrase “an amount if any,

needed to increase the deceased Grantor’s taxable estate” in the first sentence in Article

Two, Paragraph B and concludes that because there was no tax liability there was no
need to transfer any funds to Trust B. I find that this language provides another boundary

for the transfer and does not eliminate the need to make the calculation. The amount of

funds to be transferred to Trust B would be zero if the amount of the estate equaled or

exceeded the unified tax credit against federal tax without considering the funds to be

transferred

       {¶63} Because the change in the law eliminated any tax consequence for the

estate, I would find that the trial court erred and that Trust B must be funded with at least

one half of the assets currently held in Trust A and that Trust B is irrevocable because

the trust agreement does not expressly provide that Trust B is revocable.

       {¶64} I also disagree with the majority’s interpretation of Article Three, Paragraph

A. The majority concludes that “This section refers to the procedure to be followed upon

appellee's death, by a successor trustee***,” but that section contains no such express

limitation.   While it does state that “all of the assets received by Trustee as a

consequence of the death of the surviving grantor” shall be placed in Trust B, it does not

limit its effectiveness to the death of Appellee. That paragraph describes sources of

assets that shall be paid into Trust B and the balance of the paragraph addresses the

administration of Trust B. I would find that the reference to the surviving grantor is only

a description of one source of assets for Trust B and not a limitation of the existence of

that Trust.

       {¶65} I would find that the Grantor’s intent to create and fund Trust B, limited by

tax consequences, is manifest from the words and phrases in the document and the fact

that the law has changed does not impact that intent. Henson v. Casey, 4th Dist. Pickaway

No. 04CA9, 2004-Ohio-5848, ¶ 11. For that reason I respectfully dissent from the
majority’s finding that the Appellee had authority to revoke the Trust and withdraw funds

and that the court’s decision was not against the manifest weight of the evidence.
