[Cite as Chambers v. Bockman, 2019-Ohio-3538.]




                                  IN THE COURT OF APPEALS

                          TWELFTH APPELLATE DISTRICT OF OHIO

                                       CLERMONT COUNTY




 REBECCA C. CHAMBERS,                            :   CASE NO. CA2019-03-027

         Appellee,                               :          OPINION
                                                             9/3/2019
                                                 :
   - vs -
                                                 :

 DAVID C. BOCKMAN, INDIVIDUALLY                  :
 AND AS EXECUTOR OF THE ESTATE
 OF JOSEPH R. FELTER, et al.,                    :

         Appellants.                             :




            APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                             PROBATE DIVISION
                             Case No. 18CV00292



Finney Law Firm LLC, Isaac T. Heintz, Casey A. Taylor, 4270 Ivy Pointe Boulevard, Suite
225, Cincinnati, Ohio 45245, for appellee

Aronoff, Rosen & Hunt, Kevin L. Swick, 425 Walnut Street, Suite 2200, Cincinnati, Ohio
45202, for appellants




       M. POWELL, J.

       {¶ 1} Appellant, David Bockman, appeals a decision of the Clermont County Court

of Common Pleas, Probate Division, granting summary judgment to appellee, Rebecca
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Chambers.

       {¶ 2} Joseph Feltner ("Decedent") and Chambers were married in 2009. At the

time of the marriage, Chambers was living on Tener Road in Peebles, Ohio; Decedent was

living on State Route 131 in Miami Township, Ohio. Decedent's property consisted of two

lots: a 1.08-acre tract with a house in which Decedent lived ("Decedent's Home"), and a

separate, adjacent 55-acre tract where Decedent raised cattle and kept horses

("Decedent's Farm") (the two lots will be referred collectively as the "Property"). The two

lots were separated by a fence to prevent the animals from getting out. Following the

marriage, the couple maintained and continued to live in their respective residences to a

great extent. Decedent further purchased a tract of land on Tener Road, adjacent to

Chambers' home. The property was used as rental property ("Rental Property").

       {¶ 3} Decedent died testate on June 27, 2017. At the time of his death, he owned

the Decedent's Home, the Decedent's Farm, and the Rental Property. His will nominated

appellant, a long-time friend, as the executor of his estate. Item II of the will devised the

Rental Property to Chambers. Item III of the will devised the residue of Decedent's estate

to appellant as follows:

              All of the rest, residue and remainder of my property, real,
              personal and/or mixed, of which I shall die seized, or to which I
              may be entitled, or over which I shall possess any power of
              appointment by Will at the time of my decease and wheresoever
              situated, whether acquired before or after the execution of this,
              my Will, to my friend, David C. Bockman, absolutely and in fee
              simple.


The Decedent's Home and Decedent's Farm were subsequently appraised as a single

property and valued at $378,000.

       {¶ 4} On July 6, 2018, Chambers filed a complaint in the probate court to purchase

"the mansion house located [on] State Route 131, * * * the parcel of land on which it is


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situated, and the lot of land adjacent to the mansion house, which is used in conjunction

with it * * * for the price of [$378.000]." That is, Chambers, as surviving spouse, sought to

purchase the Property as its appraised value pursuant to R.C. 2106.16(A). The complaint

named appellant as a defendant, individually and as executor of the Decedent's estate.

        {¶ 5} Appellant filed an answer, arguing that Chambers was not entitled to purchase

the Property at its appraised value. Specifically, appellant asserted that (1) the Decedent's

Home did not qualify as a mansion house because Chambers never resided there, (2) Item

III of the Decedent's will specifically devised the Property, including the Decedent's Home,

to appellant, and (3) in any event, Chambers was not entitled to purchase the Decedent's

Farm.

        {¶ 6} Chambers moved for summary judgment. Appellant filed a memorandum in

opposition. On March 6, 2019, the probate court granted summary judgment in favor of

Chambers. The probate court found that Chambers was entitled to purchase the Property

at its appraised value because (1) it was not necessary for Chambers, as surviving spouse,

to reside in the Decedent's Home for it to be considered the "mansion house," (2) Item III

of the Decedent's will was simply a general bequest and devise of the Property to appellant,

not a specific one, and (3) Chambers was entitled to purchase both the Decedent's Home

and the adjacent Decedent's Farm under R.C. 2106.16.

        {¶ 7} Appellant now appeals, raising three assignments of error.

        {¶ 8} An appellate court reviews a trial court's decision on a motion for summary

judgment de novo, independently, and without deference to the decision of the trial court.

Flagstar Bank, FSB v. Sellers, 12th Dist. Butler No. CA2009-11-287, 2010-Ohio-3951, ¶ 7.

Summary judgment is proper when there is no genuine issue of material fact remaining for

trial, the moving party is entitled to judgment as a matter of law, and reasonable minds can

only come to a conclusion adverse to the nonmoving party, construing the evidence most

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strongly in that party's favor. See Civ.R. 56(C); Harless v. Willis Day Warehousing Co., 54

Ohio St.2d 64 (1978).

       {¶ 9} Assignment of Error No. 1:

       {¶ 10} THE TRIAL COURT ERRED IN HOLDING THAT THE SUBJECT REAL

PROPERTY CONSTITUTED A MANSION HOUSE UNDER R.C. 2106.16.

       {¶ 11} Appellant argues the probate court erred in finding that the Decedent's Home

was a mansion house, whether or not Chambers resided there. Appellant asserts that "a

'mansion house,' as referred to in R.C. 2106.16, is the joint residence of a decedent and

their spouse." Appellant asserts that because Chambers never resided in the Decedent's

Home, such was not a mansion house under R.C. 2106.16 and Chambers was therefore

not entitled to purchase it. That is, appellant asserts that a surviving spouse's residency in

the "family home" is a necessary element for the property to be considered the mansion

house under R.C. 2106.16(A). In support of his argument, appellant cites Scobey v. Fair,

70 Ohio App. 51 (5th Dist.1942); In re Estate of Johnson, 14 Ohio App.3d 235 (3d

Dist.1984); and a case from the state of Kentucky. The Kentucky case is not binding on

this court and will therefore not be considered. See McCauly Court Assn. v. Baker, 12th

Dist. Butler No. CA2014-06-126, 2015-Ohio-969.

       {¶ 12} The right of a surviving spouse to purchase estate property that has not been

specifically devised or bequeathed is set forth in R.C. 2106.16 as follows:

              A surviving spouse, even though acting as executor or
              administrator, may purchase the following property, if left by the
              decedent, and if not specifically devised or bequeathed, [t]he
              decedent's interest in the mansion house, including the
              decedent's title in the parcel of land on which the mansion house
              is situated and lots or farm land adjacent to the mansion house
              and used in conjunction with it as the home of the decedent, and
              the decedent's title in the household goods contained in the
              mansion house, at the appraised value as fixed by the
              appraisers[.]


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(Emphasis added.) R.C. 2106.16(A).1 The term "mansion house" is not defined in the Ohio

Revised Code or its forerunner.

        {¶ 13} Scobey construed the term "mansion house" as used in a predecessor statute

to R.C. 2106.15, which entitles a surviving spouse to remain in the mansion house "free of

charge for one year." In Scobey, the probate court was confronted with a situation where

the decedent owned a residential building in which she and her spouse resided, and which

also contained three separate rental units. The surviving spouse claimed that the statute

permitted him to retain the income from the rental units. The probate court held that the

rental units were apartments and not a part of the mansion house. The Fifth Appellate

District upheld the probate court's rejection of the surviving spouse's claim to the rentals,

finding that the purpose of the applicable statute "was to preserve the home for the surviving

spouse for the period of one year; and that which is used, possessed and occupied by the

family as a home is the mansion house." Scobey, 70 Ohio App. at 53.

        {¶ 14} Appellant argues that Scobey recognizes that residency in the "family home"

is a necessary element for the property to be considered the mansion house. However,

Scobey did not consider whether joint residency of spouses is a necessary element of the

mansion house. The concern in Scobey was whether property in which neither spouse

resided may be included as part of the mansion house. Scobey's observation that the

"family home" is the "mansion house" was not all inclusive in that it definitely excluded

property that was not jointly occupied by the spouses. As stated, the issue of joint residency

was not before the court. "'[A] reported decision, although a case where the question might

have been raised, is entitled to no consideration whatever as settling * * * a question not


1. The statutory provision granting a surviving spouse the right to purchase land at the appraised value was
first enacted in 1932 under Section 10509-89, General Code. In 1953, when the legislature switched from
the General Code to the Ohio Revised Code, the statutory provision was recodified as R.C. 2113.38. R.C.
2113.38 was subsequently amended and recodified in R.C. 2106.16, effective May 31, 1990. The language
in all three statutes is virtually identical.
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passed upon or raised at the time of the adjudication.'" State v. Payne, 114 Ohio St.3d 502,

2007-Ohio-4642, ¶ 11, quoting State ex rel. Gordon v. Rhodes, 158 Ohio St. 129 (1952),

paragraph one of the syllabus. Thus, Scobey does not support the proposition advanced

by appellant.

       {¶ 15} Johnson likewise considered a predecessor statute to R.C. 2106.15 and the

parameters of a surviving spouse's right to remain in the decedent's residence as the

mansion house. In Johnson, the surviving spouse was under a restraining order at the time

of the decedent's death, prohibiting her from being at the home of the decedent, and had

not lived in the residence for eight months prior to the decedent's death. The Third Appellate

District found that "[n]otwithstanding the often quoted definition of 'mansion house'

contained in Scobey," the decedent's "residence here was the 'mansion house.'" In re

Estate of Johnson, 14 Ohio App.3d at 236-237. Referring to the characterization of the

mansion house as "the home of the decedent" in another statute, the court of appeals held

that

                R.C. 2117.24 concerns the mansion house "of the deceased
                consort," or Howard Johnson in the case sub judice. Since this
                language can be interpreted to mean that one of the family
                members can, alone, possess the house and since [the other
                statute] also refers to the "home of the decedent," we believe it
                fair to consider the residence in the instant case to be the
                "mansion house." There is no evidence that the instant
                residence was not the "family" home when the family was
                together.


Id. at 237.

       {¶ 16} Appellant cites the last sentence of the above quoted passage to reinforce his

argument that only the "family home" may be considered the mansion house. To the

contrary, Johnson held that the mansion house refers to the decedent's home and that a

home can qualify as a mansion house even if it was only possessed by one spouse, stating


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               [R.C. 2117.24] is written in terms of "after the death of the
               deceased consort," and for one year thereafter. It says nothing
               about where the survivor resided or stayed before the death.

               It is our conclusion that "remain" as used in this statute is used
               solely to define a duration of time in futuro, and does not limit
               application to one who was a resident at the time of the
               decedent's death. One can remain where one has never before
               been. The word simply defines the duration of stay, not the
               residence of the occupant.


Id.

       {¶ 17} Likewise, the "home of the decedent" language in R.C. 2106.16 is written in

terms of after the death of the decedent, does not limit its application to one who was a

resident at the time of the decedent's death, and is in fact devoid of any language placing

a residency requirement on the surviving spouse before he or she can enjoy the benefit of

the statute.   As the probate court aptly noted, had the legislature intended to define

"mansion house" and impose a residency requirement, it could have done so and had ample

time to do so following the 1984 Johnson decision. However, it did not.

       {¶ 18} We therefore find that the probate court did not err in finding that the

Decedent's Home was a mansion house for purposes of Chambers' request to purchase it

pursuant to R.C. 2106.16(A). Appellant's first assignment of error is overruled.

       {¶ 19} Assignment of Error No. 2:

       {¶ 20} THE TRIAL COURT ERRED IN HOLDING THAT DECEDENT DID NOT

SPECIFICALLY DEVISE THE SUBJECT REAL PROPERTY TO APPELLANT.

       {¶ 21} Appellant argues the probate court erred in finding that Item III of the

Decedent's will did not specifically devise the Property, including the Decedent's Home, to

him.

       {¶ 22} As stated above, Item II of the will specifically devised the Rental Property to

Chambers. The Decedent's Home and Farm were included in the Decedent's residuary

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estate and in turn devised to appellant in Item III of the will. R.C. 2106.16(A) allows a

surviving spouse to purchase property not otherwise specifically devised or bequeathed.

       {¶ 23} A "specific legacy" is "one which, according to the testator's intent, is limited

to the subject matter given." In re Estate of Mellott, 162 Ohio St. 113, 115 (1954). It is "a

bequest of some particular thing or portion of the testator's estate, which is so described by

the will as to distinguish it from other articles of the same general nature in the estate, as a

gift of a particular thing or of money specified and distinguished from all things." Id.

Likewise, "a specific devise is a devise of a part or all of or an interest in some particular

real estate described by the will so as to distinguish it from real estate generally." In re

Estate of Witteman, 21 Ohio St.2d 3 (1969), paragraph one of the syllabus.

       {¶ 24} "Legacies of a doubtful nature usually are construed as general * * * rather

than specific[.]" Mellott at 115. The fact that a bequest is residuary in nature does not

prevent the legacy from being specific. Id. "There is no rule of law which prevents a testator

from restricting the operation of a residuary clause to a particular or specific residue, and,

in doing so, create a specific devise. However, an intention of a testator to restrict the

operation of the residuary clause cannot be deduced from the mere absence of words[.]"

Nagel v. Wilcox, 104 Ohio App. 534, 537 (9th Dist.1957).

       {¶ 25} Upon reviewing Item III of the will, we find that the residuary clause plainly

sets forth a general bequest and devise, not a specific one. The clause devises "[a]ll of the

rest, residue and remainder of [the Decedent's] property, real, personal and/or mixed" to

appellant. The clause does not leave a particular thing or portion of the Decedent's estate

to appellant. The clause further does not describe "any particular real estate so as to

identify it from real estate generally" or distinguish it from other real property in the

Decedent's estate. Witterman, 21 Ohio St.2d at 7. Rather, it simply leaves all property of

every kind and description whether real or personal to appellant. "Certainly, there is nothing

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in the devise * * * to indicate that it is specific in any respect." Id. at 8. We further note that

residuary clauses similar to Item III of the Decedent's will have been held to be general

bequests, not specific ones. See Witterman; Nagel; In re Estate of Lahmers, 5th Dist.

Tuscarawas No. 91AP110088, 1992 Ohio App. LEXIS 4362 (Aug. 24, 1992).

       {¶ 26} We therefore find that the probate court did not err in finding that the devise

of the Property to appellant under Item III of the will was a general devise, not a specific

one. Appellant's second assignment of error is overruled.

       {¶ 27} Assignment of Error No. 3:

       {¶ 28} THE TRIAL COURT ERRED IN HOLDING THAT APPELLEE WAS

ENTITLED TO PURCHASE DECEDENT'S RESIDENCE AND DECEDENT'S SEPARATE

FARM.

       {¶ 29} Appellant argues the probate court erred in finding that Chambers was entitled

to purchase the Decedent's Farm under R.C. 2106.16. Appellant asserts that even if the

Decedent's Home "was a mansion house [and] was not specifically devised" to him,

Chambers is not entitled to purchase the Decedent's Farm under R.C. 2106.16 because it

is a separate parcel. In support of his argument, appellant cites In re Burgoon, 80 Ohio

App. 465 (3d Dist.1946).

       {¶ 30} Burgoon addressed whether the right of a surviving spouse to purchase a

tract of land partly occupied by a dwelling house used by the decedent and the surviving

spouse as their mansion house allowed him to purchase two other buildings rented to

strangers for business purposes which were located on the same tract of land but physically

and completely separated from the mansion house. The Third Appellate District found that

the part of the lot upon which the commercial buildings were situated was not used in

conjunction with the mansion house as the home of the decedent as required by statute.

Id. at 470. Consequently, the surviving spouse was not entitled to purchase the entire lot

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at its appraised value, but rather, only that part of the lot not occupied by the commercial

buildings. Id.

       {¶ 31} We find that Burgoon is factually distinguishable and thus inapplicable.

Furthermore, R.C. 2106.16(A) specifically allows a surviving spouse to elect to purchase

not only "the mansion house" and the land upon which it stands, but also "lots or farm land

adjacent to the mansion house and used in conjunction with it as the home of the decedent."

Appellant does not argue that the adjacent Decedent's Farm was not used in conjunction

with the Decedent's Home as the Decedent's residence.

       {¶ 32} We find that two cases from the Fourth Appellate District aptly illustrate the

requirements of R.C. 2106.16 (or its predecessors) and support the probate court's

decision. See In re Baker, 4th Dist. Vinton No. 400, 1983 Ohio App. LEXIS 13580 (Mar. 7,

1983); In re Estate of Clark, 102 Ohio App. 200 (4th Dist.1956).

       {¶ 33} Baker involved five parcels of land. The decedent and the surviving spouse

lived in a house on one parcel; the other four parcels were used by the decedent and his

family as farm and pasture land. The probate court held that the surviving spouse was

entitled to purchase all parcels owned by the decedent under former R.C. 2113.38(A), a

predecessor to R.C. 2106.16(A).      The court of appeals reversed the probate court's

decision. Noting that the four contested tracts were not adjacent to the mansion house as

they were all in another township or county, and that there was no evidence the four tracts

"were used by the decedent as his home, or in connection with his home," the court of

appeals found that the surviving spouse did not satisfy the statutory requirements that the

property be adjacent to the mansion house and be used in conjunction with as the home of

the decedent. (Emphasis sic.) Baker at 5-6. She was therefore not entitled to purchase

the four contested tracts.

       {¶ 34} Clark involved a large piece of land owned by the decedent at the time of his

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death that was separated into three tracts by two roads. The first tract contained the

mansion house in which the decedent and the surviving spouse lived; the second tract

contained three buildings; and the third tract had no structures. The decedent operated all

three tracts as a one-man farm. The probate court found that the surviving spouse was

entitled to purchase the three tracts under former R.C. 2113.38(A). The court of appeals

upheld the decision, stating

             There is no question that it is one and the same farm, and that
             the three tracts together have constituted the whole for many
             years, that all the land is adjacent to the mansion house in both
             the sense that it is near and, also, in the sense that it is
             adjoining. The second question presented is whether the farm
             land was used in conjunction with the mansion house as the
             home of the decedent. It must be borne in mind that the statute
             in question provides for two parcels of land: first, that parcel of
             land on which the mansion house is situated; and, second, lots
             or farm land adjacent to the first parcel and used in conjunction
             therewith as the home of the decedent.

             ***

             [T]his court can not accept the construction of the present
             enactment of the law as limiting the surviving spouse to the right
             to buy at the appraised value only that which the surviving
             spouse could have had at common law, that is, the mansion
             house and curtilage. The very wording of the statute extends
             the right beyond that. Otherwise, there would be no reason to
             include the second part of the provision for an addition to the
             land on which the mansion house was situated, using the much
             broader term "home" in connection with lots and farm land.

In re Estate of Clark, 102 Ohio App. at 202-203. See also Nagel, 104 Ohio App. 534; Young

v. Young, 106 Ohio App. 206 (12th Dist.1958).

      {¶ 35} We therefore find that the probate court did not err in holding that Chambers

was entitled to purchase the Decedent's Farm as it was properly included in the Property

pursuant to R.C. 2106.16. Appellant's third assignment of error is overruled.

      {¶ 36} In light of all of the foregoing, we find that the probate court properly found

that Chambers was entitled to purchase the Property under R.C. 2106.16. The probate

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court, therefore, did not err in granting summary judgment to Chambers.

      {¶ 37} Judgment affirmed.


      HENDRICKSON, P.J., and S. POWELL, J., concur.




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