[Cite as Radzisewski v. Szymanczak, 2012-Ohio-2639.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                      No. 97795




                   VICKI RADZISEWSKI, EXECUTOR
                                                             PLAINTIFFS-APPELLEES

                                                       vs.

                  MIROSLAW SZYMANCZAK, ET AL.
                                                             DEFENDANTS-APPELLANTS




                                  JUDGMENT:
                            REVERSED AND REMANDED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                       Probate Division
                                  Case No. 11ADV0166006

        BEFORE: Rocco, J., Stewart, P.J., and Keough, J.

        RELEASED AND JOURNALIZED: June 14, 2012
ATTORNEY FOR APPELLANTS

Christina M. Joliat
P.O. Box 391531
Solon, Ohio 44139

ATTORNEY FOR APPELLEE

Teddy Sliwinski
5800 Fleet Avenue
Cleveland, Ohio 44105
KENNETH A. ROCCO, J.:

       {¶1} This is an appeal from a judgment of the the Cuyahoga County Court of

Common Pleas, Probate Division (“the probate court”), in an action to construe the will of

decedent Zofia Sulek. Defendants-appellants Malgorzata Polkowska-Sulek, Katarzyna

Olszewska-Sulek, Radoslaw Kowalski, Wieslawa Sas, Irena Stankiewicz, and Agata

Maciszewska, who are family members and friends of Sulek who still live in Sulek’s

native country of Poland, appeal from the order that adopted the magistrate’s decision

that, because the will contained no “rest and remainder” clause, Sulek’s residuary estate

went to her next-of-kin, defendant-appellee Zuzanna Szymanczak (“Zuzanna”).1

       {¶2} Appellants present two “issues for review.”2 They assert the probate court

improperly interpreted Sulek’s intent, as expressed in her will, to distribute all of her

property to them rather than to her next-of-kin.

       {¶3} Upon a review of the record, this court agrees with appellants. Consequently,

their “issues for review” are resolved in their favor, and the probate court’s judgment is

reversed.



       1Zuzanna Szymanczak is the wife of Zofia’s deceased nephew, Miroslaw, who
was originally named as a defendant in this action; during the course of the
underlying proceeding, Zuzanna was substituted for her husband.
       2One of the appellants, Radoslaw Kowalski, acting on behalf of all, filed a pro
se appellate brief that does not strictly comply with the Ohio Appellate Rules;
therefore, appellants presented no actual assignments of error as required by
App.R. 16(A)(3).
         {¶4} The record reflects that Vicki Radzisewski, executor of Sulek’s estate, filed

this action seeking construction of Sulek’s will, because Sulek, at the time of her death,

owned property in Poland that the will failed to mention. Radzisewski attached a copy of

Sulek’s will, which Sulek executed on September 8, 2009.

         {¶5} The relevant portions of Sulek’s will, which was prepared by an attorney,

state:

         I, Zofia Sulek,* * * do hereby make, publish and declare this instrument to
         be my Last Will and Testament, hereby revoking and making null and void
         all other Wills heretofore made by me.

                                                    ITEM I

                 I DIRECT that all of my debts, funeral and administrative expenses
         be paid out of my estate * * * and any and all * * * taxes, levied or assessed
         by reason of my death, shall be paid by my Executor out of my residuary
         estate * * * .

                                                    ITEM II

                I give, devise and bequeath all of my household, clothing, jewelry,
         books, works of art, and similar articles of tangible personal belongings I
         give and bequeath [sic] to my family residing in Poland: MALGORZATA
         POLKOWSKA-SULEK,             KATARZYNA            OLSZEWSKA-SULEK,
         RADOSLAW            KOWALSKI,          WIESLAWA           SAS,     IRENA
         STANKIEWICZ and AGATA MACISZEWSKA, absolutely and in fee
         simple, share and share alike.

                                                    ITEM III

        In the event MALGORZATA POLKOWSKA-SULEK, KATARZYNA
OLSZEWSKA-SULEK, RADOSLAW KOWALSKI, WIESLAWA SAS, IRENA
STANKIEWICZ and AGATA MACISZEWSKA, predecease me or fail to survive me
* * * , leaving child or children surviving said child or children shall take the share of the
deceased parent as if the deceased parent survived me.
                                            ITEM IV
             I direct that the Real Property located at 144 East Dawnwood, Seven Hills, Ohio
       be sold and the proceeds divided among my family and friends: MALGORZATA
       POLKOWSKA-SULEK, KATARZYNA OLSZEWSKA-SULEK, RADOSLAW
       KOWALSKI, WIESLAWA SAS, IRENA STANKIEWICZ and AGATA
       MACISZEWSKA, share and share alike.

       {¶6} Appellee Zuzanna, Miroslaw Szymanczak’s widow, filed a written response to the

complaint, asserting that Sulek’s intent was to leave all property in Poland to Zuzanna’s husband,

Sulek’s nephew Miroslaw, “in accordance with the Polish law.” In support of her response, Zuzanna

attached a copy of separate, Polish wills, that had been made by Sulek and her husband in 1994 and that

referred only to the property in Poland.

       {¶7} Appellants filed a “waiver of service of the complaint,” followed by an answer. Therein,

appellants asserted that, while the “validity” of the Sulek’s will submitted to the probate court on

December 16, 2009 was “not contested,” Sulek’s intent was to leave her property in Poland to her

nephew “only in case of [the] simultaneous death[s]” of her and her husband. Appellants also asserted

that Sulek prepared in Polish a handwritten will dated August 25, 2009 in which she left “her estates,

wherever situated * * * to the family in Poland.”

       {¶8} The matter proceeded to a hearing before a magistrate. Only the executor and her attorney

appeared, but the executor offered some exhibits into evidence.

       {¶9} Subsequently, the magistrate issued a decision noting that the executor offered evidence to

support her contention that Sulek “wanted all of her estate to be divided equally among the persons

named” in her will. One of the exhibits the executor offered was the affidavit of the attorney who had

prepared the will.

       {¶10} The magistrate’s decision set forth the contents of the affidavit. In pertinent part,
“[t]he affiant * * * stated that during the execution of [Sulek’s] will it was the intent of
Ms. Sulek to bequeath and devise all of her real properties and personal properties,
tangible and intangible, to * * * the following: Malgorzata Polkowska-Sulek, Katarzyna
Olszewska-Sulek, Radoslaw Kowalski, Wieslawa Sas, Irena Stankiewicz, and Agata
Maciszewska to share and share alike.”

        {¶11} Another exhibit accepted into evidence “was a handwritten copy of a

document titled ‘Testament’ that was written in the Polish language.” According to the

translation and the executor’s representation, the document was “a draft of a new will that

Ms. Sulek had intended to execute before her death.” The magistrate stated that this

document provided in part that Sulek “bequeath[ed her] estates wherever they are to the

family residing in Poland”; however, because this particular document failed to name

“Agata Maciszewska,” it was “inconsistent” with the other evidence submitted at the

hearing. Based upon this and upon the lack of a phrase in Sulek’s will that bequeathed

the residuary estate to appellants, appellants were not entitled to an equal share of Sulek’s

residual estate.

        {¶12} Appellants filed objections to the magistrate’s decision. Appellants argued

that the magistrate had ignored the fact that the “Testament” contained Agata

Maciszewska’s maiden name, i.e., “Agata Sulek”; therefore, the decision lacked a basis in

fact.

        {¶13} The probate court eventually issued an order in which it overruled

appellants’ objections and adopted the magistrate’s decision. Appellants filed a timely

appeal from the probate court order. They present the following “Issues” for review.
          “I. Whether the trial Court erred in failing to expressly say, that in her Last

Will, Zofia Sulek, died on November 23, 2009 disposed all of her properties: real

(including real properties in Poland) and personal properties only to Malgorzata

Polkowska-Sulek, Katarzyna Olszewska-Sulek, Radoslaw Kowalski, Wieslawa Sas,

Irena Stankiewicz, [and] Agata Maciszewska?

          “II.   In particular whether the trial Court erred in omitting during

construing the Last Will the intended meaning of Zofia Sulek’s latently ambiguous

words: I give, devise and bequest [sic] all of my household, covered in Item II of the

aforementioned Will, in situation, where-according to appellant’s [sic] and in the

light of all extrinsic evidence, this phrase covers all estate (or at least real properties)

of Zofia Sulek?”

          {¶14} Appellants argue that the magistrate misapplied the law to this case because

the magistrate did not properly consider the facts presented at the hearing; therefore, the

probate court erred in adopting the magistrate’s decision. Based upon the record, this

court agrees.

          {¶15} With respect to a judgment involving the construction of a will, an appellate

court reviews the decision of the probate court de novo. Church v. Morgan, 115 Ohio

App.3d 477, 481, 685 N.E.2d 809 (4th Dist. 1996).             Thus, this court reviews the

judgment independently and without deference to the probate court’s determination.

Belardo v. Belardo, 187 Ohio App.3d 9, 2010-Ohio-1758, 930 N.E.2d 862, ¶ 7 (8th

Dist.).
              {¶16} The basic law guiding will interpretation is that, “the sole purpose of the

       court should be to ascertain and carry out the intention of the testator.” Polen v. Baker,

       92 Ohio St.3d 563, 752 N.E.2d 258 (2001), citing Oliver v. Bank One, Dayton, N.A., 60

       Ohio St.3d 32, 34, 573 N.E.2d 55 (1991), and Townsend’s Exrs. v. Townsend, 25 Ohio St.

       477 (1874), paragraph one of the syllabus.    This intent is to be gleaned from the words

       used. Id., citing Townsend’s Exrs., paragraph two of the syllabus.

               The court may consider extrinsic evidence to determine the testator’s intention
       only when the language used in the will creates doubt as to the meaning of the will.
       Sandy v. Mouhot (1982), 1 Ohio St.3d 143, 145, 1 OBR 178, 180, 438 N.E.2d 117, 118;
       Wills v. Union Savings & Trust Co. (1982), 69 Ohio St.2d 382, 23 O.O.3d 350, 433
       N.E.2d 152, paragraph two of the syllabus. Oliver.

       {¶17} In this case, the magistrate’s decision indicates that extrinsic evidence was considered.

Michelsen-Caldwell v. Croy, 6th Dist. No. WD-08-001, 2008-Ohio-4281. The magistrate, therefore,

clearly believed the language Sulek used in the will “created doubt as to the meaning” of her will, i.e.,

that a latent ambiguity existed.

       {¶18} A latent ambiguity is one that is not apparent from the language used or from the face of

the instrument. Conkle v. Conkle, 31 Ohio App.2d 44, 285 N.E.2d 883 (5th Dist. 1972). A latent

ambiguity can arise even if the language of the instrument is unambiguous and suggests only a single

meaning, but some extrinsic fact or evidence creates the necessity for interpretation or a choice

between two or more possible meanings, or if the words apply equally well to two or more different

subjects or things. Id. (Emphasis added.)

              {¶19} Extrinsic evidence may be used to resolve a latent ambiguity in a will, “and

       aid in the interpretation or application of the will.”     Id.   Where there is a latent
ambiguity appearing in a will, extrinsic evidence is admissible, not for the purpose of

showing the testator’s intention, but to assist the court to better interpret that intention

from the language used in the will. Barr v. Jackson, 5th Dist. No. 08 CAF 09 0056,

2009-Ohio-5135, ¶ 36, citing Shay v. Herman, 85 Ohio App. 441, 83 N.E.2d 237 (1948).

       {¶20} In this case, Sulek provided in her will that her funeral expenses should be

paid out of her “residuary estate,” however, she specifically bequeathed only her Ohio

property. Thus, Sulek disposed of the “rest and remainder” of her Ohio property at the

same time when she specifically named in her will no other persons but appellees.

Moreover, she bequeathed her property in Ohio “in fee simple,” which are words that

commonly refer to real property rather than only to personal property. Polen, 92 Ohio

St.3d 563, 565-566, 752 N.E.2d 258 (2001), citing Hamilton v. Pettifor, 165 Ohio St.

361, 135 N.E.2d 264 (1956).

       {¶21} According to the evidence supplied at the hearing, an additional will

handwritten by Sulek in Polish existed, but Sulek died before she submitted it to a Polish

court. The handwritten will, like her Ohio will, disposed of all of her property in Poland

to the same persons named in her Ohio will.

       {¶22} The magistrate nevertheless decided this evidence, even in light of the

affidavit of the attorney who had drafted Sulek’s Ohio will, was somehow “inconsistent”

with the language Sulek used in her Ohio will. In this, the magistrate erred. Shay, 85

Ohio App. 441, 83 N.E.2d 237 (1948); Hamilton; compare Henson v. Casey, 4th Dist.

No. 04CA9, 2004-Ohio-5848, ¶ 22.
       {¶23} Because the magistrate failed to correctly apply the law to the facts adduced at the hearing,

the probate court improperly adopted the magistrate’s decision.         Appellants’ “issues for review,”

accordingly, are resolved in their favor.

       {¶24} The probate court’s order is reversed. This case is remanded for further proceedings

consistent with this opinion.                                                                It is ordered

that appellants recover from appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said 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.



________________________________________
KENNETH A. ROCCO, JUDGE

MELODY J. STEWART, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
