[Cite as Arnott v. Arnott, 190 Ohio App.3d 493, 2010-Ohio-5392.]


                             IN THE COURT OF APPEALS OF OHIO
                                FOURTH APPELLATE DISTRICT
                                     HIGHLAND COUNTY

In re Arnott et al.                               :

                                                  :                Case No. 09CA25

                                                  :
                                                                   DECISION AND
                                                  :                JUDGMENT ENTRY

                                                  :
                                                                   Released 11/1/10
                                :
______________________________________________________________________
                            APPEARANCES:

Judkins & Hayes, Robert J. Judkins, and John W. Judkins, for appellees Kenneth D.
Arnott et al.

Shannon M. Treynor, for appellants James Wayne Arnott et al.

______________________________________________________________________
     Harsha, Judge.

        {¶ 1} James Arnott, successor trustee of the Joseph Scott Arnott Revocable

Trust (“Trust”), appeals from a declaratory-judgment action in the probate court

involving the Trust, which gave James and his brother, Kenneth Arnott, the option to

purchase specified parcels of the Trust-owned farmland “at a price equal to the

appraised value of said real property as affixed for federal and/or state estate tax

purposes.” Kenneth and other beneficiaries disagree with James over the interpretation

of this sentence. Kenneth argues that the option price is the value of the realty as

determined by the appraiser, i.e., the fair market value. James contends that the option

price is the appraiser’s value reduced by an estate-tax deduction allowed for farmland in

either the federal or state tax code.
Highland App. No. 09CA25                                                                      2


          {¶ 2} In 2007, Kenneth filed a complaint seeking declaratory relief and asking

the probate court to interpret the provision in the Trust concerning the option price. The

court found that the contested sentence was unambiguous and declared that the option

price was the appraiser’s value, i.e., the fair market value. The court reached this

conclusion because the appraisal document was physically “affixed” to the estate-tax

return.

          {¶ 3} James initially asserts that the trial court erred in entertaining an action for

declaratory relief. He claims that the complaint failed to set forth a “justiciable issue”

and additionally, declaratory relief would not end the controversy between the parties.

However, the interpretation of the correct option price was justiciable because, to the

detriment of Kenneth and other Trust beneficiaries, James had already exercised his

option according to his interpretation of the contested provision. And the declaratory-

judgment action would end the controversy concerning the interpretation of the

sentence, as well as confer certain legal rights and status on the Trust beneficiaries.

Thus, the trial court did not abuse its discretion in exercising declaratory relief.

          {¶ 4} Next, James asserts that the trial court erred in its interpretation of the

contested option-price language. We agree that the sentence concerning the option

price is susceptible of more than one reasonable interpretation.            However, we are

guided by the rule that we should review the Trust as a whole to determine the settlor’s

intent. Looking at the document as a whole, we conclude that the settlor intended the

option price to be the value established for federal and/or state estate-tax purposes, in

this case, the federal and/or Ohio qualified-use value. This result comports with the
Highland App. No. 09CA25                                                                       3


settlor’s intent to keep the farms in the family and to benefit James over other Trust

beneficiaries. Therefore, we reverse the trial court’s judgment.

                                         I. Summary of the Case

          {¶ 5} In 2004, Joseph Arnott created the Trust, designating his son James as

successor trustee upon his death. His other son, Kenneth Dale Arnott, was designated

second successor trustee. James, Kenneth, and a number of other individuals are

beneficiaries under the Trust.

          {¶ 6} The Trust document contains two paragraphs at issue here. The “d.3”

paragraph provides Kenneth with the exclusive option to purchase one tract of farmland

owned by the Trust. Paragraph “d.4” gives James the exclusive option to purchase

three tracts of farmland owned by the Trust. The Trust did not list specific purchase

prices for the tracts of realty. Instead, the option price was described as “a price equal

to the appraised value of said tract as affixed for federal and/or state estate tax

purposes.”1 Both James and Kenneth had to exercise their option to purchase the

property within 90 days of the “written date of notice to [either son] of the appraised

value affixed by the appraiser of the trust estate.”

          {¶ 7} After Joseph’s death, the Trust hired John Rittenhouse to appraise the

four tracts of Trust property. He appraised James’s three tracts of farmland at a total

value of $1,821,00. And he appraised Kenneth’s single tract at $210,000. Neither party

disputes that the Rittenhouse appraisals were physically attached to both Joseph’s

federal and state estate-tax-return schedules.

          {¶ 8} Peter Quance, attorney for the Trust, wrote a letter to the Trust

beneficiaries, explaining that the Trust gave James and Kenneth the option to purchase
1
    In the clause granting James an option, the word “tract” is replaced by “real property.”
Highland App. No. 09CA25                                                                  4


farmland at the value listed on the federal and state estate-tax returns. Quance advised

that a deduction, also known as a “qualified use valuation,” was available for the

farmland real estate on both the federal and state estate-tax returns. If James and

Kenneth opted to use the Ohio version of the qualified-use valuation, James’s option

price to purchase the three tracts of farmland would be $1,375,265 and Kenneth’s

option price would be $155,735.         As is evident, both qualified-use values were

significantly less than the Rittenhouse appraisals.

       {¶ 9} Kenneth’s attorney, Larry D. Hayes, wrote Quance a letter, explaining that

he disagreed with Quance’s interpretation of the Trust option price. Hayes argued that

the correct option price was the actual appraised value of the farmland, i.e., the

Rittenhouse appraisal. James hired a new attorney, James M. Dietz, who responded

with a letter defending Quance’s interpretation.

       {¶ 10} James decided to exercise his option and purchase the three tracts of

property at the Ohio qualified use value, or $1,375,265. Kenneth refused to exercise his

option at any reduced value and wished to pay the Rittenhouse appraisal price of

$210,000. Because of the 90-day limitation and to ensure timely administration of the

Trust, James created and recorded a deed memorializing a transfer of Kenneth’s option

property to Kenneth. The deed reflected a sale price of the Ohio qualified-use value.

Proceeds from the Trust were used to pay the purchase price, pending the outcome of

litigation concerning the correct interpretation of the Trust option price. The propriety of

James’s decision to exercise Kenneth’s option and convey the property to him is not an

issue here.
Highland App. No. 09CA25                                                                    5


       {¶ 11} In August 2007, Kenneth and other trust beneficiaries filed suit against

James in the probate court of Highland County, seeking a declaratory judgment of the

correct interpretation of the option price. After a trial, the court issued a decision finding

that “a price equal to the appraised value of said tract as affixed for federal and/or state

estate tax purposes” meant the appraised value of the tracts of realty, i.e., the

Rittenhouse appraisal.

       {¶ 12} After the court issued this decision, the case went through a number of

procedural hurdles that are not relevant except to note that the case was dismissed,

refiled in a different county, transferred, refiled in the same county, and then

consolidated. The case ultimately ended up refiled in Highland County, where the

parties stipulated to all matters decided in the original lawsuit.

       {¶ 13} In April 2009, the Highland County probate court issued an entry that

closely mirrored its initial decision.    First, it found that the complaint satisfied the

requirements for a declaratory action.       Second, it addressed the contested option

language and found:

       On review of the language at issue in Article III paragraphs d.3 and d.4 of
       the trust, specifically “a price equal to the appraised value of said tract
       (d.3) or appraised value of said real property (d.4) as affixed for federal
       and/or state estate purposes * * *.” It has been since initial review of said
       language by this Court and remains crystal clear to this Court the option
       price of each of the four tracts is the Rittenhouse appraisal value. The
       Rittenhouse appraisal is the only “appraised value” of record in this action
       and the only “appraised value” affixed to the Federal and State Estate Tax
       returns.

       {¶ 14} James filed a timely appeal from this entry.

                                  II. Assignments of Error

       {¶ 15} James sets forth the following assignments of error:
Highland App. No. 09CA25                                                                        6


          Assignment of Error No. 1

          The trial court erred in its finding that the grounds for proceeding on a declaratory
          judgment action were satisfied.

          Assignment of Error No. 2

          The court erred in its finding that the “appraised price affixed for federal and/or
          state [estate] tax purposes” is equivalent to “fair market value.”

          Assignment of Error No. 3

          The finding of the trial court that no tax implications would flow from using the
          Rittenhouse appraisal as purchase price is unsupported by the record and
          against the manifest weight of the evidence.

                           III. Grounds for a Declaratory-Judgment Action

          {¶ 16} In his first assignment of error, James claims that the court erred in its

finding that grounds for issuing a declaratory judgment were satisfied. The trial court

found that a complaint for declaratory judgment must show “1) a justifiable2 controversy

exists; 2) facts to justify a declaration as to the rights of the parties would terminate the

uncertainty and put an end to the controversy; and 3) the party seeking relief has a legal

interest in the controversy.” The trial court briefly mentioned that it found that these

elements had been satisfied. It did not explain its factual or legal conclusions for having

done so.

          {¶ 17} A declaratory judgment is a civil action and provides a remedy in addition

to other legal and equitable remedies available. Aust v. Ohio State Dental Bd. (2000),

136 Ohio App.3d 677, 681, 737 N.E.2d 605. A court may grant declaratory relief so

long as it finds the action is within the spirit of the Declaratory Judgments Act, R.C.

Chapter 2721, that a real and justiciable controversy exists between the parties, and

that speedy relief is necessary to preserve rights that may otherwise be impaired or lost.
2
    We presume the trial court meant “justiciable.”
Highland App. No. 09CA25                                                                   7

Schaefer v. First Natl. Bank (1938), 134 Ohio St. 511, 18 N.E.2d 263, at paragraph

three of the syllabus. Dismissal of a complaint seeking declaratory relief is appropriate

when no real controversy or justiciable issue exists between the parties.           State v.

Brooks (1999), 133 Ohio App.3d 521, 525, 728 N.E.2d 1119, citing Weyandt v. Davis

(1996), 112 Ohio App.3d 717, 721, 679 N.E.2d 1191.

                                  A. Standard of Review

       {¶ 18} James contends that our standard of review is mixed, i.e., de novo review

of the legal issues and deferential review of the facts.         Kenneth argues that the

appropriate standard for reviewing declaratory judgments is abuse of discretion.

       {¶ 19} In Mid-American Fire & Cas. Co. v. Heasley, 113 Ohio St.3d 133, 2007-

Ohio-1248, 863 N.E.2d 142, the Supreme Court of Ohio reaffirmed that “ ‘[t]he granting

or denying of declaratory relief is a matter for judicial discretion, and where a court

determines that a controversy is so contingent that declaratory relief does not lie, this

court will not reverse unless the lower court’s determination is clearly unreasonable.’ ”

Id. at ¶12, quoting Bilyeu v. Motorists Mut. Ins. Co. (1973), 36 Ohio St.2d 35, 303

N.E.2d 871, at syllabus. See also Englefield v. Corcoran, Ross App. No. 06CA2906,

2007-Ohio-1807, at ¶11. Accordingly, we will not reverse the trial court’s decision to

render declaratory relief unless the trial court abused its discretion. “Abuse of discretion”

connotes more than an error of judgment; it implies that the court’s action was

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio

St.3d 217, 219, 450 N.E.2d 1140.

                               B. A Justiciable Controversy
Highland App. No. 09CA25                                                                     8


       {¶ 20} James sets forth two principal arguments concerning the absence of a

“justiciable controversy.” First, James contends that the actual option price is now a

moot point because the options were exercised and the respective farmlands were

transferred before the complaint was filed. Kenneth argues that the controversy is ripe

because the lawsuit was filed only after James had exercised the options at “a price

which was beneficial to him, and detrimental to other trust beneficiaries.”

       {¶ 21} Second, James claims that the trust document gave him broad powers as

successor trustee, including the explicit authority to convey any unexercised option

property to himself in the absence of a higher claim.            He explains that “a mere

declaration of rights, given the broad discretion of the Trustee James W. Arnott to vend

or not vend the trust assets, fails to rise to the level of controversy required for just

declaratory adjudication.”    Kenneth argues that James’s broad powers to sell trust

property have no effect on the justiciability of the controversy. Kenneth contends that

interpretation of the correct option price was not a discretionary matter for James and

that the issue was properly before the probate court. And until the court determined that

James’s option price was incorrect, no secondary action, i.e., a breach-of-fiduciary-duty

claim, would be ripe.

       {¶ 22} “For a cause to be justiciable, there must exist a real controversy

presenting issues which are ripe for judicial resolution and which will have a direct and

immediate impact on the parties.” Stewart v. Stewart (1999), 134 Ohio App.3d 556, 558,

731 N.E.2d 743, quoting State v. Stambaugh (1987), 34 Ohio St.3d 34, 38, 517 N.E.2d

526. “[I]n order for a justiciable question to exist, ‘[t]he danger or dilemma of the plaintiff

must be present, not contingent on the happening of hypothetical future events * * * and
Highland App. No. 09CA25                                                                 9


the threat to his position must be actual and genuine and not merely possible or

remote.’” Mid-American, 113 Ohio St.3d 133, at ¶ 9, quoting League for Preservation of

Civ. Rights v. Cincinnati (1940), 64 Ohio App. 195, 197, 28 N.E.2d 660.              Thus,

“[i]nherent in determining whether a complaint sets forth a justiciable issue is the

question of ripeness.” Thomson v. Ohio Dept. of Rehab. & Corr., Franklin App. No.

09AP-782, 2010-Ohio-416, at ¶10.

       {¶ 23} The declaratory action here presented a justiciable issue between the

parties. James and Kenneth fundamentally disagreed on the correct interpretation of

the option-price language. Subsequently, James exercised both options to purchase

Trust lands based on his own interpretation of the option price. At that time, a “real

controversy” arose.

       {¶ 24} Clearly, the issue is not moot simply because James exercised the

options. If James underpaid for his farmland by using the Ohio qualified-use evaluation,

then the Trust, Kenneth, and the other beneficiaries of the Trust were harmed by a

reduction in the total assets available for distribution.     In other words, the Trust

beneficiaries faced an “actual and genuine” threat to their interest in the Trust property.

Regardless of whether James properly exercised the option, the correct option price

remained an active, genuine controversy between the parties.

       {¶ 25} Moreover, James’s broad powers as successor trustee do not make the

issues here any less justiciable. James may have had discretion to convey, manage,

and even purchase unexercised option property.        But as Kenneth correctly argues,

James does not have the power as successor trustee to interpret Trust provisions in a
Highland App. No. 09CA25                                                              10


manner inconsistent with the settlor’s intentions. Accordingly, the trial court did not

abuse its discretion in its finding that a justiciable issue existed.

                             C. Termination of the Controversy

       {¶ 26} Next, James argues that Kenneth, other than requesting the court to

determine the option price, failed to request any additional relief that would flow from

this determination. Essentially, he contends that the trial court’s determination of the

option price would not put an “end to the controversy.” Kenneth would still be forced to

pursue a secondary action, such as a breach-of-fiduciary-duty claim against James.

Kenneth argues that no additional prayer for relief was necessary because R.C.

2721.05, part of the Declaratory Judgment Act, allows a trial court to interpret and

construe provisions in a Trust.

       {¶ 27} The Supreme Court of Ohio long ago held that the Declaratory Judgment

Act is remedial in nature and should be liberally construed, but it “does not require a

court to render a futile judgment that ‘would not terminate’ any ‘uncertainty or

controversy’ whatsoever.” Walker v. Walker (1936), 132 Ohio St. 137, 139, 5 N.E.2d

405, quoting from an earlier version of the Declaratory Judgment Act, Gen.Code 12102-

6.   And under R.C. 2721.07 a court may refuse to render declaratory relief “if the

judgment or decree would not terminate the uncertainty or controversy giving rise to the

action or proceeding in which the declaratory relief is sought.”

       {¶ 28} “[I]n keeping with the long-standing tradition that a court does not render

advisory opinions, [courts] allow the filing of a declaratory judgment only to decide ‘an

actual controversy, the resolution of which will confer certain rights or status upon the
Highland App. No. 09CA25                                                                   11

litigants.’” Mid-American, 113 Ohio St.3d 133, at ¶ 9, quoting Corron v. Corron (1988),

40 Ohio St.3d 75, 79, 531 N.E.2d 708.

       {¶ 29} The only controversy presented here was the correct option price. And

the court’s interpretation of the correct option price put an end to that controversy

(contingent of course upon the outcome of this appeal and any subsequent

proceedings). However, James is correct that the court’s interpretation of the option

price may not fully end all controversy between the parties. James would still have to

rescind his option and reconvey the Trust property or pay the Trust an amount reflecting

the correct option price for the option property. If he failed to act, the Trust beneficiaries

might seek injunctive relief or file a breach-of-fiduciary-duty action.       Thus, the trial

court’s declaration here would not end all possible future controversies between the

parties.

       {¶ 30} However, we agree with Kenneth that R.C. 2721.05 explicitly provides a

right of action for a trust beneficiary seeking a declaration concerning the interpretation

of a trust provision. Furthermore, R.C. 2721.02(A) provides that “courts of record may

declare rights, status, and other legal relations whether or not further relief is or could be

claimed.”   Thus, the legislature clearly intended for courts to issue declaratory

judgments provided for in the Act regardless of whether secondary actions were

necessary to provide parties with full relief. See also State ex rel. Thernes v. United

Local School Bd. Dist. of. Edn., Columbiana App. No. 07CO45, 2008-Ohio-6922

(concluding that a declaratory action seeking interpretation of a statute was proper even

when the declaratory judgment would not terminate a related but separate contractual

dispute between the parties).
Highland App. No. 09CA25                                                                 12

       {¶ 31} Nonetheless, James directs our attention to the case of Hay v. Jefferson

Industries Corp. (1992), 62 Ohio Misc.2d 472, 601 N.E.2d 672, for the proposition that a

court should decline to award declaratory relief when the practical effect of the

declaratory action would not fully end the dispute between the parties. In Hay, the

plaintiff alleged that she had slipped and fallen on an icy sidewalk while leaving the

worksite of her employer, Jefferson Industries Corporation. Id. at 474. She sued both

Jefferson and the Ohio Bureau of Workers’ Compensation. Her complaint alleged that

Jefferson was liable for her injuries and that she also was entitled to participate in the

Workers’ Compensation fund.       She additionally sought a declaration from the court as

to which claim for liability she should pursue. Id.

       {¶ 32} The court declined to grant the requested declaratory relief and

characterized it as a request for an advisory opinion. The court noted that nothing in the

Declaratory Judgment Act provided for a declaration of remedies available to a

personal-injury plaintiff.   Id. at 474-475.    Moreover, the court noted that such a

declaration, if made, would not terminate the controversy between the parties. Id. at

475. The court explained: “Plaintiff would still have the burden of proving those facts

necessary to establish her right to recover from Jefferson or participate in the bureau’s

fund.” Id.

       {¶ 33} We find Hay distinguishable. In that case, no portion of the Declaratory

Judgment Act envisioned the sort of relief sought by the plaintiff.           But here, as

discussed above, one provision within the Declaratory Judgment Act does just that.

R.C. 2721.05 provides:

       Any person interested as or through an executor, administrator, trustee,
       guardian, or other fiduciary, creditor, devisee, legatee, heir, next of kin, or
Highland App. No. 09CA25                                                                   13


       cestui que trust, in the administration of a trust, or of the estate of a
       decedent, *** may have a declaration of rights or legal relations in respect
       thereto in any of the following cases:

       ***

       (C) To determine any question arising in the administration of the estate or trust,
       including questions of construction of wills and other writings.

       {¶ 34} The statute explicitly provides a right of action for a trust beneficiary, i.e.,

“cestui que trust,” to obtain declaratory relief regarding the administration of a trust,

including questions about “writings” in the Trust. Moreover, in Hay, the declaratory

action would not have granted the plaintiff any rights that she did not possess

beforehand. All she wanted from the court was guidance, i.e., who do I sue? Here, the

practical effect of the declaratory decision will be to grant Kenneth and other trust

beneficiaries potential causes of action against James if he decides to do nothing. That

is to say, the action has conferred “certain rights or status upon the litigants.”

       {¶ 35} Accordingly, we overrule James’s first assignment of error.

                      IV. Interpretation of the Option-Price Language

                                  A. Standard of Review

       {¶ 36} Again, the parties dispute the standard of review. James argues that we

are faced with a legal issue here, akin to the interpretation of wills, and our review is de

novo. Citing Mid-American, Kenneth contends that our review is abuse of discretion,

even when reviewing legal issues. Kenneth also cites Hamblin v. Daugherty, Medina

App. No. 08CA0009-M, 2008-Ohio-5306, for an example of a case where the court

adopted an abuse-of-discretion standard when reviewing legal determinations in a

declaratory-judgment action.
Highland App. No. 09CA25                                                                   14

       {¶ 37} As we stated in Section I of the opinion, in Mid-American, the court

reaffirmed its prior holding that the standard of review for dismissal of a declaratory-

judgment action is abuse of discretion.        The language used by the court in Mid-

American was broad: “We therefore reaffirm that declaratory judgment actions are to be

reviewed under an abuse-of-discretion standard.” Id. at ¶ 14.

       {¶ 38} Apparently relying on this language, in Hamblin, 2008-Ohio-5306, the

Ninth District indicated that it was applying an abuse-of-discretion standard to a trial

court’s legal conclusions in a declaratory-judgment action. There the appellant argued

that the trial court erred in granting declaratory relief on the basis of three separate legal

arguments: election-of-remedies doctrine, collateral estoppel, and mootness. The court,

citing Mid-American, announced that its standard of review of the trial court’s grant of

declaratory judgment was abuse of discretion. Id. at ¶ 8.

       {¶ 39} Upon review of Hamblin, the court appears to have engaged in de novo

review. This was noted by the concurring judge who agreed with most of the court’s

analysis, but disagreed with applying an abuse-of-discretion standard. Id. at ¶ 22. The

concurring opinion acknowledged that Mid-American mandates abuse-of-discretion

review of the decision to grant or deny declaratory relief. But it explained, “[o]nce a trial

court determines that a request for declaratory relief should be entertained, it applies

the law just as it does in any other case. It does not have discretion to determine

whether to correctly apply the law.” Id. at ¶ 23.

       {¶ 40} This position comports with a decision of the Ninth District only a year

prior, in Pierson v. Wheeland, Summit App. No. 23422, 2007-Ohio-2474. In that case,

the court, also noting the recent Mid-American decision, held that it would apply de novo
Highland App. No. 09CA25                                                                  15


review to a purely legal issue decided within the context of a declaratory-judgment

action. Id. at ¶ 10.

       {¶ 41} Likewise, we do not read Mid-American to mandate abuse-of-discretion

review of legal issues in a declaratory-judgment action. In other words, no court has the

discretion to commit an error of law.      And in fact, the issue in Mid-American was

whether the court erred in dismissing an action for declaratory judgment, i.e., whether

the grounds for declaratory judgment (discussed in Section I of this opinion) were

satisfied. The court did not address whether the trial court, after exercising its discretion

to proceed with declaratory judgment, correctly applied the substantive law.

       {¶ 42} And thus we agree with the concurring opinion in Hamblin. A trial court’s

determination of purely legal issues is never one of degree or discretion. Regardless of

whether the action is styled as one for declaratory relief, the trial court must correctly

apply the law. See also State v. Thompson, Montgomery App. No. 22984, 2010-Ohio-

1680 (Fain, J., concurring). Accordingly, we review the trial court’s interpretation of the

option clause de novo.

                              B. The Option-Price Language

       {¶ 43} The language at issue in the trust is located in Article Three and reads:

       d.3 I give, bequeath and devise to my son, [KENNETH] DALE ARNOTT,
       on the condition he survive me, the exclusive option to purchase a certain
       tract of land, containing 69 acres, more or less, located at 9784 Paint
       Creek Road, in the Township of Madison, County of Highland, State of
       Ohio, at a price equal to the appraised value of said tract as affixed for
       federal and/or state estate tax purposes. Said option shall expire ninety
       (90) days from the written date of notice to Dale Arnott of the appraised
       value affixed by the appraiser of the trust estate.

       d.4 I give, bequeath and devise to JAMES WANYE ARNOTT, on the
       condition that he survive me, the exclusive option to purchase any part of
       or all of my remaining land titled to the trust, including any real estate not
Highland App. No. 09CA25                                                               16


      purchased by Dale Arnott and to include the following, being (1) tracts
      containing 220 acres, more or less, located at 12951 Black Road, in the
      Township of Paint, County of Highland, State of Ohio, and.or [sic] (2)
      approximately 99 Acres, located in Perry Township, Fayette County, Ohio,
      and/or (3) a tract of land containing 248 Acres located in Paint Township
      on Ladd Road, each at a price equal to the appraised value of said real
      property as affixed for federal and/or state estate tax purposes. Said
      option shall expire ninety (90) days from the written date of notice to
      James Wayne Arnott of the appraised value affixed by the appraiser of the
      trust estate.

      {¶ 44} When we construe the language of a revocable inter vivos trust, we apply

the same rules of construction as when we interpret wills. Henson v. Casey, Pickaway

App. No. 04CA9, 2004-Ohio-5848, at ¶ 12, citing Ohio Citizens Bank v. Mills (1989), 45

Ohio St.3d 153, 543 N.E.2d 1206, superseded by statute on other grounds.              Our

fundamental goal is to “ascertain and carry out, within the bounds of the law, the intent

of the testator.” In re Estate of Lewis (July 23, 1999), Athens App. No. 98CA17, 1999

WL 595458, at *2, citing Domo v. McCarthy (1993), 66 Ohio St.3d 312, 314, 612 N.E.2d

706; Oliver v. Bank One, Dayton, N.A. (1991), 60 Ohio St.3d 32, 34, 573 N.E.2d 55.

Therefore, when the language of the will is clear and unambiguous, the testator’s intent

must be ascertained from the express terms of the will itself. Domo at 314. Only when

the express language of the will creates doubt as to its meaning may the court consider

extrinsic evidence to determine the testator’s intent. Oliver at 34. See also In re Estate

of Evans (1956), 165 Ohio St. 27, 30, 133 N.E.2d 128. In addition, when determining

the testator’s intent, we consider not just the contested language but rather the “whole

will, and read in light of the applicable law, and circumstances surrounding the will’s

execution.” Cent. Trust Co. of N. Ohio, N.A. v. Smith (1990), 50 Ohio St.3d 133, 136,

553 N.E.2d 265.
Highland App. No. 09CA25                                                                 17


       {¶ 45} Kenneth argues that the language is unambiguous. He contends that the

option price must be the Rittenhouse value because that is the only “appraisal” that was

physically attached, or “affixed,” to the estate-tax return.      James argues that this

interpretation fails to give any effect to the qualifying words “for federal and/or state

estate tax purposes.” James argues that this last clause indicates that the option price

was intended to be the value submitted to the federal and/or state taxing authority for

purposes of paying any federal and/or state estate taxes owed. And the only appraisal

values submitted “for” federal and/or state purposes were the qualified-use values.

       {¶ 46} At first glance, the contested sentence appears ambiguous. The term

“affixed” appears to be a main source of confusion and apparently formed the basis of

the trial court’s decision.

       {¶ 47} When construing testamentary language, words “if technical, must be

taken in their technical sense, and if not technical, in their ordinary sense, unless it

appear[s] from the context that they were used by the testator in some secondary

sense.” Townsend’s Exrs. v. Townsend (1874), 25 Ohio St. 477, paragraph three of the

syllabus.   Black’s Law Dictionary defines “affix” as “to attach, add to, or fasten on

permanently.” Ballentine’s Law Dictionary defines “affix” as “to attach in a degree of

permanence” and “affixed” as “securely attached.”             And the Merriam-Webster

Dictionary defines it as “to attach physically” or “to attach in any way.” Clearly, the word

connotes a degree of physical attachment. But the dictionary definitions suggest that

physical attachment is not the only possible method of “affixing” something, especially

when that word is subject to a dependent clause. As alluded to previously, “[a]ll the
Highland App. No. 09CA25                                                                  18


parts of the will must be construed together, and effect, if possible, given to every word

contained in it.” Townsend at paragraph four of the syllabus.

       {¶ 48} The trial court interpreted “affixed” in the most physical sense and in

isolation from the remaining language in the sentence and the rest of the document.

The Rittenhouse appraisal was the only “appraisal” that was physically attached (or

perhaps more accurately, “appended”) to the estate-tax returns.             But as James

indicates, this interpretation ignores the qualifying phrase “for federal and/or state estate

tax purposes.”    When we give effect to that qualifying phrase, the most logical

interpretation is that the appraised value affixed “for federal and/or state estate tax

purposes” is the value that was used on the tax-return schedule, i.e., the qualified value,

which was physically written (in a sense, affixed) and submitted to the taxing authority

for determination of the estate tax.       The Ohio qualified-use value was the only

“appraised value” that was used for estate-tax purposes. The Rittenhouse appraisals

were the basis for those values. But they were not the actual appraised value submitted

for determination of the federal and/or state estate tax.

       {¶ 49} Arguably, the contested sentence, when viewed alone, is ambiguous. But

interpretation of testamentary or trust documents, like the interpretation of legislation, is

a holistic endeavor. And there is another sentence in both options that significantly

clarifies the meaning of the word “affixed.”

       {¶ 50} Both paragraphs conclude with the phrase “[s]aid option shall expire

ninety (90) days from the written date of notice to [Kenneth or James] of the appraised

value affixed by the appraiser of the trust estate.” This sentence clearly demonstrates

that “affixed” is being used in some secondary sense. If one replaces the word “affixed”
Highland App. No. 09CA25                                                                     19


with the phrase “physically attached,” the sentence becomes nonsensical: “[s]aid option

shall expire ninety (90) days from the written date of notice *** of the appraised value

physically attached by the appraiser of the trust estate.” (Emphasis added.) Physically

attached to what? But if one interprets the word “affixed” to mean “set,” “determined,” or

“established,” the sentence is logical: “[s]aid option shall expire ninety (90) days from

the written date of notice *** of the appraised value set by the appraiser of the trust

estate.” Moreover, it is logical that the settlor would have used unqualified language,

i.e., “of the appraised value affixed by the appraiser of the estate,” in the sentence fixing

the option price if his intent were to adopt the fair market value of the land. In other

words, there would be no need to add language referring to estate-tax values if it were

not meant to qualify the language that preceded it.

       {¶ 51} Finally, when we look at the document as a whole to determine the

settlor’s intent, it is clear that he intended to favor James in the distribution of the trust’s

assets. James was to receive 40 percent of the distribution of the Trust property after

all options were exercised. The other beneficiaries received only a 10 or 15 percent

share. Likewise, James received the option to purchase three tracts of land totaling 567

acres, while Kenneth received an option to purchase 69 acres. The other beneficiaries

received no options. And the fact that the settlor granted James and Kenneth the option

to purchase land is a strong indicator that he wished the land to remain in the family

with his sons. Using the qualified-use value rather than the fair market value is more

likely to accomplish that result because the purchase prices were substantially lower. In

light of the settlor’s clear intent to keep the farms in the family and to favor James in the
Highland App. No. 09CA25                                                                   20


distribution of Trust assets, it is only logical that he would use an option value that

promoted that intent, i.e., the value set for estate-tax purposes.

       {¶ 52} The appraised value established for state estate-tax purposes was the

Ohio qualified-use value. Therefore James’s interpretation of the Trust provision was

correct. Accordingly, we hold that “at a price equal to the appraised value of said real

property as affixed for federal and/or estate tax purposes” means that the option price

was the appraised value, reduced by any proper deductions, submitted to the taxing

authority (either federal or Ohio).

                            V. Manifest Weight of the Evidence

       {¶ 53} James’s third assignment of error is moot per our resolution of his second

assignment of error.

                                      VI. Conclusion

       {¶ 54} For the foregoing reasons, we overrule James’s first assignment of error.

However, we sustain his second assignment of error and reverse the declaratory

judgment of the trial court. James’s third assignment of error is moot based upon our

disposition of his second assignment of error.

                                                                       Judgment reversed
                                                                     and cause remanded.

       MCFARLAND, P.J., and ABELE, J., concur.
