[Cite as In re Estate of Stevens, 2012-Ohio-1860.]




            IN THE COURT OF APPEALS FOR CHAMPAIGN COUNTY, OHIO

IN THE MATTER OF THE ESTATE                                 :
OF MAXINE DELORIS STEVENS
                                                            :      C.A. CASE NO.      2011 CA 26

                                                            :      T.C. NO.    10ES212

                                                            :       (Civil appeal from Common
                                                                     Pleas Court, Probate Division)
                                                            :

                                                            :

                                               ..........

                                             OPINION

                          Rendered on the            27th       day of     April    , 2012.

                                               ..........

SHERRILLE D. AKIN, Atty. Reg. No. 0059841 and GEORGE B. LIMBERT, Atty. Reg.
No. 0082241, 250 E. Broad Street, 9th Floor, Columbus, Ohio 43215
       Attorneys for Appellant Jenna L. Stevens

DANIEL C. HARKINS, Atty. Reg. No. 0029750 and MARK D. DeCASTRO, Atty. Reg.
No. 0079505, 333 North Limestone Street, Suite 203, P. O. Box 1125, Springfield, Ohio
45501
      Attorneys for the Estate of Maxine Deloris Stevens

EDWARD G. BAILEY, Atty. Reg. No. 0004749, 4 W. Main Street, Suite 428, Springfield,
Ohio 45502
      Special Counsel for the Estate of Maxine Deloris Stevens

                                               ..........
                                                                                         2


DONOVAN, J.

       {¶ 1}     This matter is before the Court on the Notice of Appeal of Jenna Stevens,

filed October 17, 2011. Jenna is the granddaughter of decedent Maxine Stevens, and she

appeals from the September 16, 2011, Judgment Entry of the Champaign County Common

Pleas Court, Probate Division, which ordered Dale Circle, Executor of Maxine’s estate, to

proceed with the administration of the estate by completing a real estate transaction in

accordance with Item Two of Maxine’s will.

       {¶ 2}     Maxine died on November 25, 2010, and on December 29, 2010, the

Probate Court admitted her Will to probate and appointed Dale as Executor. Item Two of

the will provides as follows:

               I direct my Executor to provide my friend, DALE CIRCLE, with the

       option to purchase the real estate which I may own at the time of my death

       that is then being used for agricultural purposes. The option to be extended

       by my Executor will provide DALE CIRCLE with the opportunity of

       purchasing the farmland for $3,000.00 per acre. My Executor shall give

       notice to DALE CIRCLE of this option within thirty (30) days of my

       Executor’s appointment by the Probate Court. DALE CIRCLE must then

       exercise the option within the forty-five (45) day period following the date on

       which notice is provided by my Executor. In the event DALE CIRCLE

       should fail to provide written notice of his intention to exercise the option

       provided by this ITEM TWO, within the forty-five (45) day period, this

       ITEM TWO and the option described shall lapse. Should DALE CIRCLE
                                                                                         3

      proceed in exercising the option, he may pay the purchase price either by

      tendering, in whole or in part, cash at closing or a note for the balance of the

      purchase price, provided the note requires (i) equal payments of principal and

      interest for up to twenty (20) years, (ii) bears the Applicable Federal Rate of

      interest and (iii) secured with a mortgage on the land being sold. The note

      shall be negotiable and should be assigned to those individuals who will

      receive distributions under this Will.

              Should any individual challenge the validity of this ITEM TWO by

      filing objections or complaints with the Probate Court, then that individual’s

      interest under this Will shall lapse and shall become null and void.

      {¶ 3}   Also on December 29, 2010, Dale filed an “Exercise of Option to Purchase

Farmland,” which provides:

              I, Dale Circle, pursuant to Item Two of the Last Will and Testament

      of Maxine Stevens, hereby exercise the option described in the Will to

      purchase the Decedent’s farmland. I am prepared to purchase the farmland

      at $3,000 per acre and intend to tender a Promissory Note payable to the

      Estate or its successors and assigns, providing for equal annual payments with

      the first payment due on December 31, 2011. The payments will amortize

      the purchase price over a period of twenty (20) years with interest accruing at

      the Applicable Federal Rate of 3.53%. * * * .”

      {¶ 4}    On May 12, 2011, Dale filed the Estate’s Inventory and Appraisal, along

with Waivers of Notice of Hearing on Inventory, signed by Jenna, and Security National
                                                                                            4

Bank, Trustee. The Inventory included Maxine’s interest in three parcels of farm land. On

May 23, 2011, the Probate Court approved the Inventory.

       {¶ 5}     On June 28, 2011, Dale filed an Application to Extend Administration,

which provides in part, “Additional time will be required by the Executor to confirm the

State’s acceptance of the Estate Tax Return and to affect the distribution of the Estate’s

assets after the concerns expressed by Jenna Stevens are addressed.”

       {¶ 6}     On July 28, 2011, Dale filed “Executor’s Notice of Intention to Proceed

with Administration of Estate.” Dale noted that the period within which to contest the Will

expired on April 7, 2011, pursuant to R.C. 2107.76. He further noted that the three parcels

of land listed in the Inventory consisted of a total of 242.50 acres with a total value of

$1,048,679, or $4,324.45 an acre. Dale asserted that the time to object to the Inventory also

expired, pursuant to R.C. 2115.16.      According to Dale, “[d]espite failing to file any

complaints or objections with this Court, Jenna, through her counsel, advised the Estate’s

counsel of her objection to the fulfillment of the Decedent’s Will.” Dale asserted that Jenna

objected to Item Two and that she further “has asserted that this Court’s approval is

required” before the farm land is transferred pursuant to Item Two. Regarding Item Two,

Dale stated that it constitutes a bequest to him equal to $321,179.00, “namely the difference

between the farmland’s appraised value and the $3,000.00 per acre value which was

specified by the Decedent.” Dale requested, in the event court approval was required, that

the Probate Court “approve fulfillment of the Decedent’s Will.” Finally, Dale noted that

“[a]ny attempted challenge to the Executor’s transfer of the farmland to Mr. Circle will

trigger the in terrorem clause and cause a forfeiture of the challenging individual’s interest
                                                                                            5

in the Estate.”

       {¶ 7}      On August 4, 2011, the Probate Court issued a Judgment Entry that

provides that the “Court finds that its approval is not required to fulfill the Provisions of

Item Two of the Decedent’s Will. The Executor shall proceed accordingly.”

       {¶ 8}      On   August 11, 2011, Jenna filed a “Memorandum in Opposition to

Executor’s Notice of Intention to Proceed with Administration of Estate.” According to

Jenna, Dale’s interest in the farm land lapsed because he failed to comply with the

requirements and time restrictions set forth in Item Two.   Specifically, Jenna asserted that

the Will “cannot constitute an offer, nor can it exist as an option.” Jenna asserted, even if

the Will is construed as an offer to purchase the property, Item Two sets forth a 45 day “time

period for exercise.” Jenna argued that exercise is accomplished by providing cash or a

note at closing. Jenna alternatively asserted, even if Dale is not required to close on the

property within 45 days, he “still must close within a reasonable period,” and she asserted

that he failed to do so.    Jenna asserted that Dale’s “Exercise of Option to Purchase

Farmland” does not satisfy the statute of frauds. Jenna also asserted that Dale failed to

comply with R.C. 2109.44, in that he did not obtain court approval for the transfer. Jenna

asserted that the “alleged in terrorem clause is not violated by Jenna’s insistence that the

executor strictly comply with the terms of Item Two.”

       {¶ 9}      On August 17, 2011, the Probate Court issued an Entry that notes that

Jenna opposed Dale’s Notice of Intention to Proceed with Administration of Estate, and

further notes that the “Court has been informed that [counsel for Dale] would like to file a

response to the August 11th Memorandum.” The Judgment Entry concludes that the court
                                                                                              6

“withholds any action on its August 4th Entry until it makes a further decision based on the

Memorandum and Response.”

       {¶ 10} On August 19, 2011, Dale filed a “Motion to Strike, or in the Alternative,

Motion for Definite Statement.” In his supporting memorandum, Dale asserted that Jenna

lacked standing to assert her claims and is not a real party in interest, since the Will did not

provide her with an interest in the farmland. He further asserted that Jenna is barred from

contesting the Will, challenging the Inventory and bringing a Will construction action.

Finally, Dale asserted, having “failed to initiate any adversarial proceeding in this Estate,

Jenna’s Memorandum is so vague and ambiguous that the Executor cannot reasonably

determine whether a responsive pleading is permitted and therefore cannot reasonably be

required to form a responsive pleading, if so permitted.”

       {¶ 11}    On August 25, 2011, Jenna filed a Motion for Status Conference, in which

she argued as follows:

                The Court has issued two Orders regarding the Notice of Intention to

       Proceed filed by the Executor in this case. Upon information and belief, the

       Executor plans on relying on the initial order of the Court and pursuing the

       sale of the property at issue before the Court is fully briefed on the pending

       issues. Further, should the first Order be upheld by the Court, the time for

       appeal expires on September 2, 2011. Jenna submits that holding such a

       conference between the Court and all counsel of record before September 2,

       2011 will serve judicial economy by determining the procedural course of

       action to be followed with respect to the pending matters. * * *
                                                                                         7

The Probate Court granted Jenna’s motion and scheduled a status conference for September

6, 2011.

       {¶ 12}    On September 6, 2011, Jenna opposed Dale’s Motion of August 19, 2011.

       {¶ 13}    After holding a status conference attended by counsel for Jenna and Dale,

the court issued its Judgment Entry on September 16, 2011. The court determined as

follows:

                The executor previously filed a Notice of Intent to Proceed with the

       Administration of the Estate. In said filing, the executor stated he was ready

       to complete the sale of decedent’s farm property as called for in Item Two of

       the Will, and asked the Court if approval of this transaction by the Court was

       necessary. On August 4, 2011, the Court filed an entry stating its approval

       was not necessary and ordering the executor to proceed.          Subsequently,

       Jenna Stevens filed her Memorandum in Opposition * * * and requested this

       status conference.

                In light of Jenna Stevens’ filing, the Court’s Order of August 4, 2011

       is vacated and the Court will reconsider the transfer approval based upon the

       two filings mentioned above.

                Mr. Circle argues that pursuant to decedent’s [W]ill, he was given

       the option to purchase certain farm ground [and [t]hat he has complied with

       the Notice provisions in the Will to exercise the option and is now ready to

       complete the transaction.

                Jenna Stevens argues that Mr. Circle has not complied with option
                                                                                   8

period called for in the Will because he did not complete the transaction

within the 45 day period called for in the Will and alternatively, if he didn’t

have to complete the sale in the 45 day period that he has not completed the

transaction within a reasonable period of time.

          The language of decedent’s Will is clear.

          ***

          Mr. Circle does not have to complete the transaction within 45 days,

just give written notice of his intention to exercise the option. The Court

finds Mr. Circle complied with this provision by filing his written notice to

exercise the option on December 29, 2010.

          As there is no time period stated in decedent’s Will to complete the

transaction, the Court believes it must be completed within a reasonable time.

 Mr. Circle was ready to complete the transaction at the time of his filing in

July. Given the nature of large real estate transactions and that most full

estate administrations are completed in 6 to 12 months, the Court finds that

Mr. Circle’s intention to complete the transaction is within a reasonable time.

          The wishes of the decedent are clear and Mr. Circle has acted in

accordance with the provisions as set out by the decedent to accomplish those

wishes.

          For all the foregoing reasons, the Court finds Mr. Circle has complied

with the provisions of Item Two of decedent’s Will.

          It is therefore Ordered and Adjudged that the executor shall complete
                                                                                             9

       the real estate transfer in accordance with Item Two of Decedent’s Will and

       proceed accordingly with the further administration of the estate.

Finally, the Probate Court indicated that its Judgment Entry is a final, appealable order.

       {¶ 14} We note that in her Notice of Appeal, Jenna indicated that she would file a

statement of the record pursuant to App.R. 9. On October 26, 2011, the trial court issued a

Judgment Entry that notes Jenna’s indication regarding a statement of the record and further

provides:

                The Court will not allow the filing of a Statement of the Record,

       pursuant to App.R. 9(C), as the statement may only be prepared “if no report

       of the evidence or proceedings at a hearing or trial was made, or if a transcript

       is unavailable. . .” In this matter, a complete record of the proceedings was

       made via digital recording and a transcript is available therefrom albeit at a

       cost.

                Therefore, the Court will proceed to submit the Summary of Docket

       and Journal Entries to the Court of Appeals clerk.

                This is a final appealable order entered into the Court’s record on the

       date stamped “Filed” by the clerk. * * *

We note that a transcript has not been filed.

       {¶ 15}     On November 9, 2011, Dale filed a motion to dismiss, arguing that the

Probate Court’s Judgment Entry of September 16, 2011, was not a final appealable order.

Jenna opposed the motion to dismiss, and Dale filed a Reply. On December 27, 2011, this

Court determined that the September 16, 2011 Judgment Entry is a final, appealable order.
                                                                                            10

       {¶ 16} Jenna asserts five assignments of error herein. Her first assignment of error

is as follows:

       “WHETHER THE TRIAL COURT ERRED WHEN IT ALLOWED DALE CIRCLE

TO PURCHASE THE ESTATE’S REAL PROPERTY UNDER ITEM TWO OF THE

DECEDENT’S WILL WITHOUT COMPLYING WITH THE REQUIREMENTS OF R.C.

2109.44?”

       {¶ 17} Jenna argues as follows:

                 Dale “lacked authority to transfer title of the property to himself. The

       transaction was subject to court review and approval, which was not obtained.

         A hearing on the matter would have permitted evaluation of appellant’s

       arguments which are the subject of this appeal, but also to consider the total

       application of the Item Two option * * * and the terms of the transaction.

       Thus, the Probate Court’s Judgment Entry ordering the Executor to proceed

       must be overruled and the transfer of the farmland at issue must be voided,

       and the case must be remanded for further proceedings under R.C. 2109.44.”

       {¶ 18}      The version of R.C. 2109.44 in effect at the time of the decedent’s death

provided: “Fiduciaries shall not buy from or sell to themselves nor shall they in their

individual capacities have any dealings with the estate, except as expressly authorized by the

instrument creating the trust and then only * * * with the approval of the probate court in

each instance * * * .”

       {¶ 19} While the probate court initially determined, on August 4, 2011, that court

approval for the sale of the property was not necessary, the court later vacated that finding
                                                                                           11

to “reconsider the transfer approval.” Having found that Maxine’s wishes were clearly set

forth in the Will, and that Dale acted in accordance therewith, the court ordered Dale to

complete the real estate transfer.      As Dale asserts, he had authority to complete the

transaction pursuant to both the Will and the probate court’s judgment entry, as required by

R.C. 2109.44. Jenna’s first assigned error is overruled.

       {¶ 20} Jenna’s second assigned error is as follows:

       “WHETHER THE TRIAL COURT ERRED WHEN IT INTERPRETED ITEM

TWO OF THE WILL AS NOT REQUIRING THE COMPLETION OF SALE WITHIN 45

DAYS FROM THE DATE UPON WHICH NOTICE OF THE OPTION WAS GIVEN?”

       {¶ 21} According to Jenna, the “plain language of Item Two of the Decedent’s Will

required that Dale Circle complete the transaction within 45 days of notice of the option.”

Dale responds that Jenna waived her right to seek construction of the Will, since she did not

contest its validity below, pursuant to R.C. 2107.761. Dale further asserts that the Will does

“not specify a time period to complete the transfer.” According to Dale, transfer prior to

court approval of the estate’s Inventory is prohibited by local rule.

       {¶ 22} We initially note that Jenna’s failure to commence an action to contest the

validity of the Will, pursuant to R.C. 2107.76, does not result in a waiver of her right to

appeal the trial court’s construction of the Will.



           1
          R.C. 2107.76 provides: “No person who has received or waived the right
   to receive the notice of the admission of a will to probate required by section
   2107.19 of the Revised Code may commence an action permitted by section
   2107.71 of the Revised Code to contest the validity of the will more than three
   months after the filing of the certificate described in division (A)(3) of section
   2107.19 of the Revised Code.”
                                                                                             12

       {¶ 23} As this Court has previously noted:

               Because interpreting wills is a question of law, we apply de novo

       review to determinations of a testator’s intent * * * . This means that we

       apply the same standards that the trial court uses. * * * It also means that

       “[w]e review the judgment independently and without deference to the trial

       court’s determination.” * * * In addition, Ohio follows these general rules for

       reviewing will construction cases:

                   “1. In the construction of a will, the sole purpose of the court should

       be to ascertain and carry out the intention of the testator.

               “2. Such intention must be ascertained from the words contained in

       the will.

               “3. The words contained in the will, 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.

               “4. All the parts of the will must be construed together, and effect, if

       possible, given to every word contained in it.” * * *. Bank One Trust Co.,

       N.A. v.      Reynolds, 2d Dist.      Montgomery App.       Nos.    20386, 20402,

       2004-Ohio-6670, ¶ 12-16.

       {¶ 24} An option is a “[r]ight of election to exercise a privilege.” Black’s Law

Dictionary 1094 (6th Ed. 1990). As this Court has noted, “‘An option is an agreement to

keep an offer open for a specified time; it limits the customary power of the offeror to revoke
                                                                                            13

his offer before its acceptance.’ * * * In order ‘for an exercise of an option to be binding on

the optionor, it must be exercised in the manner provided for in the instrument creating the

option on or before the time specified.’ * * *.” Gehret v. Rismiller, 2d Dist. Darke No.

06CA1705, 2007-Ohio-1893

       {¶ 25}    Construing all parts of the Will together, by its plain language, notice of

Dale’s appointment as Executor of the Will by the probate court commenced the 45 day

period within which Dale was required “to provide written notice of his intention to exercise

the option provided by” Item Two. Furthermore, it would be futile for Dale to provide

notice to himself. In other words, the option provided in Item Two gave Dale, in his

individual capacity, the right to compel the sale of the farm land. After election to exercise

the option, Dale “may pay the purchase price” pursuant to the terms of Item Two. While

the Will sets forth the manner in which payment is to be made, the Will is silent as to the

time of closing on the transaction.

       {¶ 26}    On the same day that the probate court appointed Dale as Executor, he filed

his “Exercise of Option to Purchase Farmland,” which provided that he thereby exercised the

option set forth in the Will, and we conclude that completion of the sale was not required.

See In re Estate of De Saint-Rat, 12th Dist. Butler No. CA2007-02-052, 2008-Ohio-2109, ¶

14 (holding that optionee was not required to tender the purchase price with her notice of

intention to purchase the property where the “language does not expressly require that

payment of the purchase price accompany [her] election to exercise the option, does not

make payment of the purchase price a condition precedent to the exercise of the option, does

not expressly specify such payment as the mode or manner of exercising the option, and in
                                                                                             14

fact is silent * * * as to the time of the payment * * * .”) To conclude otherwise, as argued

by Jenna, would require Dale to complete the transaction within 45 days of December 29,

2010, when he was appointed as Executor and provided written notice of his intention to

exercise the option, which would be prior to the approval of the Inventory on May 23, 2011.

As Dale asserts, Local Rule 81.8 of the Champaign County Court of Common Pleas, Probate

Division, provides, “Estate property shall not be transferred until after the inventory has been

approved, unless the fiduciary secures prior court approval.” Since the Will did not require

that the sale close within the 45 day period argued by Jenna, her second assigned error lacks

merit and is overruled.

       {¶ 27}    Jenna’s third assignment of error is as follows:

       “WHETHER THE TRIAL COURT ERRED WHEN IT FOUND THAT APPELLEE

IN HIS CAPACITY AS EXECUTOR COMPLIED WITH THE REQUIREMENTS OF

ITEM TWO OF THE WILL?”

       {¶ 28} According to Jenna, Dale “never provided an option and Item Two itself

cannot constitute an option.” Jenna further asserts that Dale’s “Exercise of Option to

Purchase Farmland” does not comply with the statute of frauds2. Finally, Jenna argues that

the matter herein is analogous to In re Estate of Stockmaster, 3d Dist. Seneca No. 13-10-43,

2011-Ohio-3006, ¶ 18, in which the Third District determined that the optionee’s right to

purchase the property at issue lapsed “pursuant to the plain language” of the will.


          2
            R.C. 1335.04, the statute of frauds, provides: “No lease, estate, or
   interest, either freehold or term of years, or any uncertain interest of, in, or out
   of lands, tenements, or hereditaments, shall be granted except by deed, or note
   in writing, signed by the party assigning or granting it, or his agent thereunto
   lawfully authorized, by writing, or by act and operation of law.”
                                                                                             15

        {¶ 29} The Will herein specifically refers to “the option provided by this ITEM

TWO,” and we cannot agree that further action was required by Dale, as Executor, to

“provide an option.” Further, since Dale’s “Exercise of Option to Purchase Farmland” does

not assign or grant an interest in land, but merely establishes his right to compel performance

of the sale, the statute of frauds does not apply. Finally, we conclude that Stockmaster is

distinguishable, since the will at issue therein gave the optionee the right to purchase certain

property, and further provided: “The election to purchase must be in writing delivered to

both executors and closing completed within sixty (60) days of the time of election as set

forth above, or the right to purchase shall lapse.” As previously discussed, the Will herein

is silent as to the closing of the sale. Jenna’s third assigned error is overruled.

        {¶ 30} Jenna’s fourth assigned error is as follows:

        “WHETHER THE TRIAL COURT ERRED WHEN IT FOUND THAT APPELLEE,

AS AN INDIVIDUAL AND NOT IN A FIDUCIARY CAPACITY, TIMELY EXERCISED

THE PURPORTED OPTION TO PURCHASE FARMLAND FROM THE ESTATE?”

        {¶ 31} Jenna repeats her arguments that Dale was required to close on the sale of

the property within the 45 day period set forth in the Will, and she directs our attention to

Valentine v. Clippinger, 4 Ohio App.2d 303, 212 N.E.2d 424 (1st Dist.1965). As with

Stockmaster, the matter herein is distinguishable from Valentine. The option to purchase in

Valentine required the optionee to provide written notice of election to purchase, and it

further required as prerequisites that she show an ability to pay for (1) improvements to the

property and (2) the initial payment toward the purchase price.             The optionee merely

provided written notice, and the First District determined that the “option to purchase could
                                                                                         16

not ripen into an enforceable contract until such conditions were met.” Id., 305. Here,

Dale exercised his option pursuant to Item Two, and he established his right to compel

performance of the sale. Jenna’s fourth assigned error is overruled.

       {¶ 32} Jenna’s fifth assigned error is as follows:

       “WHETHER THE TRIAL COURT ERRED WHEN IT FOUND THAT

APPELLEE’S INTENTION TO COMPLETE THE TRANSACTION WAS WITHIN A

REASONABLE PERIOD OF TIME.”

       {¶ 33} Jenna asserts that Dale did not tender a note for the purchase of the property

and secure it with mortgage until 9 months after he filed his “Exercise of Option,” and she

asserts that “the 9 month time period is not a reasonable time.” Jenna ignores the fact that

the Inventory was not approved until May, 2011, and the necessary judicial approval of the

sale was not granted until September 16, 2011, nine months after Dale exercised his option.

There being no merit to Jenna’s final assigned error, it is overruled.

       {¶ 34} The judgment of the trial court is affirmed.

                                          ..........

GRADY, P.J. and HALL, J., concur.

Copies mailed to:

Sherrille D. Akin
George B. Limbert
Daniel C. Harkins
Mark D. DeCastro
Edward G. Bailey
Hon. Brett A. Gilbert
