[Cite as Brown v. Brown, 2017-Ohio-8938.]




                     IN THE COURT OF APPEALS OF OHIO
                         THIRD APPELLATE DISTRICT
                              HARDIN COUNTY




RUSSELL A. BROWN, TRUSTEE,

       PLAINTIFF-APPELLEE,                              CASE NO. 6-17-10

      v.

DANNY L. BROWN, ET AL.,

      DEFENDANTS-APPELLEES,
      -and-                                             OPINION

SANDRA K. HASSAN FARABEE, ET AL.,

       DEFENDANTS-APPELLANTS.



                 Appeal from Hardin County Common Pleas Court
                                 Probate Division
                           Trial Court No. CA 20169001

                                    Judgment Affirmed

                         Date of Decision: December 11, 2017



APPEARANCES:

        Howard A. Traul, II for Appellants

        John M. Tudor for Appellee Russell A. Brown, Trustee and Personally

        J. Michael Hood for Appellees, Danny L. Brown and Cathy Harris
Case No. 6-17-10


SHAW, J.

       {¶1} Defendants-appellants, Sandra Farabee, Robert Lambert, and Jack

Lambert (“Appellants”), appeal the April 14, 2017 judgment of the Hardin County

Court of Common Pleas, Probate Division, terminating the “Brown Family Trust”

and distributing the Trust assets equally to plaintiff-appellee, Russell A. Brown

(“Anthony”), and his siblings, defendants-appellees, Daniel Brown and Cathy

Harris (collectively referred to as “Appellees”). On appeal, Appellants challenge

several of the trial court’s findings supporting its conclusion to distribute the Trust

assets to only the three Appellees upon termination of the Trust.

                           Relevant Factual Background

       {¶2} The parties to this action are three siblings and three step-siblings.

Sometime in the early 1970’s Appellees’ father, Russell J. Brown (“Russ, Sr.”),

moved in with Appellants’ mother, Rose A. Brown (“Rose”). During this time,

Appellants lived with Russ, Sr. and by all accounts viewed him as a father figure.

Russ, Sr. and Rose eventually married in 1978, when Russ, Sr. divorced his wife

after all three Appellees had “graduated.”

       {¶3} In 1985, Russ, Sr. and Rose executed reciprocal Wills leaving their

probate estates to the surviving spouse and naming the six children as beneficiaries

of the surviving spouse’s estate in equal shares.

       {¶4} In 2000, Rose and Russ, Sr. executed a quitclaim deed, which placed

129.54 acres of land into the “Brown Family Trust,” a revocable trust. Rose died

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on June 14, 2013, and Russ, Sr. made his election to take under her Will. Russ, Sr.

executed a new Will on September 18, 2013, wherein he included the following

provision modifying the distribution of his probate estate from his prior 1985 Will:

       2.02. I give, devise and bequeath all the rest, residue and
       remainder of my estate, real or personal, wherever situated and
       whenever acquired, unto my lineal descendants in equal shares,
       per stirpes. At the time of the making this Will, my descendants
       consist of Russell A. Brown, * * * Dan Brown, * * * and Cathy
       Harris. By such provision I intend that should any of my children
       predecease me, their share in equal share shall descend per stirpes
       to their lineal descendants, if any, and if none to be divided
       equally between my surviving children or their lineal descendants
       in equal share per stirpes. In making the provisions of this article
       in my Will, I am not unaware of the existence of my step children,
       being the children of my late wife, Rose Brown, but herewith
       provide only for my own children.

(Doc. No. 73).

       {¶5} On January 10, 2014, Russ, Sr. executed an “Affidavit of Successor

Trustee,” stating that he and Rose were Co-Trustees of the Brown Family Trust and

that after Rose’s death he became the sole Successor Trustee pursuant to the Trust

Agreement.

       {¶6} Russ, Sr. died on August 26, 2014. His 2013 Will was subsequently

admitted to probate and no contest was made challenging the Will. Anthony was

appointed executor of Russ, Sr.’s estate. The land contained in the Brown Family

Trust, and the proceeds therefrom, were not included in either Rose’s or Russ, Sr.’s

probate estates.



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         {¶7} On September 30, 2014, Anthony executed an “Affidavit of Successor

Trustee,” stating he was the “presumed Successor Trustee” of the Brown Family

Trust.

                                          Procedural History

         {¶8} On February 16, 2016, Anthony, as Trustee, filed a complaint naming

all six children of Rose and Russ, Sr., individually, as defendants and seeking a

determination from the trial court regarding several aspects of the Brown Family

Trust. The complaint stated that Anthony, as Russ, Sr.’s executor, was in possession

of a check for proceeds from the land owned by the Brown Family Trust that needed

to be deposited, but no account existed for the Trust. Anthony and his counsel were

unable to find the Trust Agreement or any documents creating the Brown Family

Trust.1 Anthony assumed possession of the Trust assets as “presumed Successor

Trustee.”

         {¶9} Anthony and his counsel later discovered an “Abstract of Trust

Agreement,” which identified Rose and Russ, Sr. as “Co-Trustors” and “Co-

Trustees” and further provided that:

         3. Successor Trustees. Upon removal of both husband and wife
         as Co-Trustees, the joint Co-Successor Trustees are designated as

1
  The record indicates that the attorney who drafted the Brown Family Trust Agreement had been disbarred
and is deceased. The record further indicates that Russ, Sr. had an oral sharecropping agreement with another
farmer for a 50/50 split of the proceeds from the land in trust. The checks for the proceeds were issued to
Russ, Sr. who was able to deposit the checks into his account without issue. However, after Russ, Sr.’s death,
Anthony received a check from the sharecropping tenant and he executed an “Affidavit of Successor Trustee”
declaring him the “presumed successor trustee” so that he could handle the affairs related to the Trust assets,
such as accepting rent, extending the sharecropping agreement, and paying taxes.


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       RUSSELL A. BROWN [Anthony] and SANDRA K. STONE [nka
       Farabee]. In the event either of them should become incompetent
       or otherwise unable or unwilling to serve, then the other shall
       serve alone as Trustee hereof.

(Doc. No. 76). However, no person, other than Rose and Russ, Sr., was identified

as a beneficiary in the “Abstract of Trust Agreement.” Thus, there was no provision

giving guidance as to how the Trust assets were to be distributed after the deaths of

both Rose and Russ, Sr.

       {¶10} Accordingly, the complaint initiating this case sought a judgment from

the trial court determining the identity of the successor beneficiaries under the Trust,

if the trial court determined there was a trust, and to whom the income and proceeds

of the liquidation of the Trust assets should be distributed, when such distribution

should be made, and when the Trust should be terminated.

       {¶11} Appellants—i.e., Rose’s children, filed a counter-claim and cross-

claim asserting that they were entitled to fifty percent of the Trust assets. Appellants

requested the trial court find Sandra Farabee was the Co-Trustee of the Brown

Family Trust pursuant to the “Abstract of Trust Agreement;” that an accounting

should be ordered; and that a judgment should be issued liquidating the Trust,

distributing fifty percent to Appellants, and terminating the Trust.

       {¶12} Appellants filed a motion for summary judgment which was overruled

by the trial court and the case proceeded to a bench trial on January 23, 2017, where

several witnesses testified and numerous exhibits were admitted. Based upon the


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evidence presented, the trial court issued Findings of Fact on February 15, 2017.

Specifically, the trial court found relative to this appeal that Russ, Sr. and Rose were

settlors of “Brown Family Trust,” a revocable trust established on June 15, 2000,

and that the “Abstract of Trust Agreement” identified two beneficiaries, Rose A.

Brown and Russell J. Brown, who were also the initial Co-Trustees. (Doc. No. 80

at ¶¶ 7- 8).

       {¶13} The trial court further found that on June 15, 2000, Russ, Sr. and Rose

executed a quitclaim deed for the 129.54 acres of land to the Trust granting it to

themselves as Co-Trustees. The trial court found that the quitclaim deed evidenced

that the property was acquired solely by Russ, Sr. with Rose having only a dower

interest in the property prior to placing the land into the Trust. The trial court also

found that “the act of titling the real estate to the Trust removed personal ownership

from either/or both Russell J. Brown and Rose A. Brown and exhibited an intent

that the property not be included as part of their estates.” (Id. at ¶ 13).

       {¶14} The trial court examined the “Abstract of Trust Agreement” and

determined from that document that the Co-Trustees—i.e., Rose and Russ, Sr.—had

the power to transfer the Trust assets and the survivor of the two had a right to a

power of appointment exercisable by Will. However, the trial court noted that there

was no evidence presented that action was taken by either Rose or Russ, Sr.

consistent with these powers.



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         {¶15} At the time of trial, the 129.54 acres were still titled in the name of the

Brown Family Trust and there was approximately $38,000 of proceeds from the

land in a bank account established by Anthony under the name “Brown Family.”2

Based upon the evidence before it, the trial court could not determine who the

beneficiaries were intended to be after the deaths Rose and Russ, Sr. and further

determined that “[b]ecause the purposes of the Trust cannot be ascertained they are

impossible to achieve.”3 (Doc. No. 80 at ¶ 40); see R.C. 5804.10(A).

         {¶16} In a separate document, the trial court set forth its Conclusions of Law

based upon these findings, after giving the parties an opportunity to file their

“exceptions” to the trial court’s Findings of Fact and to brief the legal issues. The

trial court found that a valid revocable trust was established, and that no evidence

of revocation by Rose or Russ, Sr. was presented at trial. Having found that there

was no ascertainable beneficiary of the Trust after the deaths of Rose and Russ, Sr.

and that the purposes of the Trust could no longer be achieved, the trial court

concluded that the Trust should be terminated. Thus, the primary concern of the

trial court was how to distribute and to whom to distribute the Trust assets upon the

termination of the Trust in the absence of any instruction from a trust agreement.


2
  Anthony testified that he could not deposit the checks in the Trust’s name because there was not proper
documentation of the Trust’s existence for the bank to establish an account. In the alternative, he created an
account under the “Brown Family” to separately maintain the proceeds and manage the Trust assets until a
determination by the trial court was made.
3
  The trial court surmised “the following intent of settlors at the time the trust was created: (1) to avoid and/or
minimize estate taxes; and (2) to provide income to settlors during their lifetimes.” (Doc. No. 80 at ¶ 31).
Thus, the trial court found that both of these objectives were no longer achievable after deaths of Rose and
Russ, Sr.

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       {¶17} The trial court examined the relevant statutes on the issue and

observed that it could “not find any statute directly on point to help resolve this

conundrum.”     (Doc. No. 88 at 10). Nevertheless, the trial court looked to the

statutory provisions for guidance and concluded the following:

       By agreement of the parties and without objection, the Court took
       judicial notice of the entire contents of the estates of both Russell
       J. Brown and Rose A. Brown. Both estates were fully
       administered and neither is currently opened. The Court would
       note that Mrs. Brown, the first to die, left her entire estate to her
       husband, Russell J. Brown. Were she entitled to any of the assets
       back from the trust or were she a beneficiary getting back assets
       from the trust, they would pass through her estate to her husband
       [pursuant to her 1985 Will]. As the evidence in this case clearly
       established, including the Court’s file for the estate of Russell J.
       Brown, he left his entire estate to his three children, being plaintiff
       and defendants Brown. In either scenario, whether the assets
       passed from wife to husband and then to his children or merely
       would have passed directly to Mr. Brown (because Mrs. Brown
       only had a dower interest), the outcome would be the same.
       Ultimately, the assets would be divided equally between the three
       children of Russell J. Brown [pursuant either to Russ, Sr.’s 2013
       Will or under the “law of jurisdiction” as the beneficiaries or the
       heirs are the same].

(Doc. No. 88 at 9). The trial court further determined that there was no adequate

remedy at law and exercised “its equitable powers” to provide the parties relief. (Id.

at 11). The trial court ordered the Trust be terminated and the assets be distributed

directly to Appellees in equal shares, without re-opening Russ, Sr.’s estate. The

trial court’s orders were journalized in its April 14, 2017 Judgment Entry.

       {¶18} Appellants subsequently filed this appeal, asserting the following

assignments of error.

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Case No. 6-17-10


                   ASSIGNMENT OF ERROR NO. 1

      THE PROBATE COURT ERRED AS A MATTER OF LAW IN
      FINDING THAT IT HAD NO AUTHORITY TO DETERMINE
      THE BENEFICIARIES OF THE TRUST BECAUSE THE LAW
      PERMITS A TRIAL COURT TO DETERMINE THE TERMS
      OF A TRUST EVEN WHEN THE TRUST DOCUMENT IS
      MISSING; THEREFORE, THE PROBATE COURT’S APRIL
      14, 2017 ENTRY SHOULD BE REVERSED.

                   ASSIGNMENT OF ERROR NO. 2

      THE PROBATE COURT ERRED AS A MATTER OF LAW IN
      FAILING TO FIND THE SETTLORS INTENDED ALL SIX
      CHILDREN TO BE BENEFICIARIES UNDER THE BROWN
      FAMILY TRUST; THEREFORE, THE PROBATE COURT’S
      APRIL 14, 2017 ENTRY SHOULD BE REVERSED.

                   ASSIGNMENT OF ERROR NO. 3

      THE PROBATE COURT ERRED AS A MATTER OF LAW IN
      INTERPRETING OHIO REVISED CODE SECTION
      5801.01(S) AND IN FINDING ROSE WAS NOT A SETTLOR
      OF THE BROWN FAMILY TRUST; THEREFORE, THE
      PROBATE COURT’S APRIL 14, 2017 ENTRY SHOULD BE
      REVERSED.

                   ASSIGNMENT OF ERROR NO. 4

      THE PROBATE COURT ERRED AS A MATTER OF LAW
      DURING THE TRIAL ON PAGE 181 OF THE TRIAL
      TRANSCRIPT IN FINDING ROSE’S STATEMENTS WERE
      HEARSAY; THEREFORE, THE PROBATE COURT’S APRIL
      14, 2017 ENTRY SHOULD BE REVERSED.

                   ASSIGNMENT OF ERROR NO. 5

      THE PROBATE COURT ERRED AS A MATTER OF LAW IN
      REFUSING TO PERMIT TESTIMONY REGARDING THE
      REAL PROPERTY ACQUISITION WHEN THE LAMBERTS
      DENIED THAT RUSS, SR. OWNED THE PROPERTY IN FEE

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       SIMPLE; THEREFORE, THE PROBATE COURT’S APRIL 14,
       2017 ENTRY SHOULD BE REVERSED.

       {¶19} For ease of discussion, we elect to address the majority of the

assignments of error together.

                First, Second, Third, and Fifth Assignments of Error

                                 Standard of Review

       {¶20} We review a trial court’s determination of matters of law in a

declaratory judgment action under a de novo standard of review. Arnott v. Arnott,

132 Ohio St.3d 401, 2012-Ohio-3208, ¶ 13. We further note that the trial court, as

the trier of fact, had the advantage of observing witnesses at trial and assessing their

credibility. Thus, we will defer to any findings relative thereto. See Delp v. Delp,

6th Dist. Lucas No. L-16-1242, 2017-Ohio-7774, ¶ 21, citing Gorby v. Aberth, 9th

Dist. Summit No. 28021, 2017-Ohio-274, ¶ 19.

                                      Discussion

       {¶21} In these assignments of error, Appellants challenge specific aspects of

the trial court’s ruling. In their first and second assignments of error, Appellants

argue that the trial court erred in determining that it could not ascertain the successor

beneficiaries after Rose’s and Russ, Sr.’s deaths from the “Abstract of Trust

Agreement” and the extrinsic evidence presented at trial. Specifically, Appellants

assert the evidence supports a finding that Rose and Russ, Sr. intended for the Trust

to benefit all six children after their deaths. Appellants also claim in the third and


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fifth assignments of error that the trial court erred in concluding that Rose’s interest

in the land placed in the Trust was limited to a dower interest and that she did not

have the same ownership rights as Russ, Sr. being a Co-Settlor.

         {¶22} At the outset, we note that on appeal Appellants contend that the trial

court erred in failing to consider any parol evidence outside of the “Abstract of Trust

Agreement” in reaching its determination that the successor beneficiaries of the

Trust could not be ascertained in this case. Our review of the record simply does

not support this contention. Rather, the record reflects that the trial court gave

Appellants ample opportunity at trial to support their position that Rose and Russ,

Sr. intended all six children to be the successor beneficiaries of the Brown Family

Trust.

         {¶23} The record indicates that the trial court considered testimony from

multiple witnesses, including from Appellants Sandra Farabee and Jack Lambert, to

assist the court in ascertaining the successor beneficiaries of the Trust in the absence

of a Trust Agreement. However, the evidence presented at trial demonstrated that,

whether by omission or design, Russ, Sr.’s and Rose’s children knew little about the

Brown Family Trust and the purposes of its creation, let alone the principal terms

of the Trust—i.e., whether there were any intended successor beneficiaries after

Rose’s and Russ, Sr.’s deaths. Moreover, none of the witnesses at trial recalled ever

seeing a Trust Agreement.



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       {¶24} For instance, Anthony testified that he first learned of the Trust after

he began assisting, his father, Russ, Sr., with writing checks when Russ, Sr.’s

Parkinson’s Disease symptoms inhibited him from completing certain functions.

Anthony recalled his father instructing him that “There’s property tax, things in

there on the counter. Get it. You need to pay it.” (Tr. at 79-80). The notice

identified the Brown Family Trust and when he inquired further Anthony

remembered Russ Sr. replying, “Never mind that. Just pay the taxes.” (Id.)

Anthony explained “I didn’t stick my nose into my dad’s business, and that’s as

much explanation as I got out of him on it.” (Id.) Michael Grossman, the farmer

who farmed the land held in the Brown Family Trust, testified that he began farming

the land in 1997 or 1998. He was not made aware that the land was held in trust

until after Russ, Sr.’s death. Sandra Farabee also testified that she had never seen a

Trust Agreement. Her only recollection of the Trust prior to Rose’s and Russ, Sr.’s

deaths, was seeing an envelope on the counter addressed to the “Brown Family

Trust.”

                 Settlors’ Intent Creating the Brown Family Trust

       {¶25} Despite the lack of parol testimony evidence regarding the creation

and principle terms of the Trust, and the primary documentary evidence purporting

to establish the Trust and to convey its principle terms being an unrecorded and

unauthenticated “Abstract of Trust Agreement,” the trial court nevertheless found



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that Rose and Russ, Sr. created a valid revocable trust. (See Doc. No. 80 at ¶ 34).

We note that the “Abstract of Trust Agreement” specifically states that:

       18. Trust Agreement to Govern. The use of this Abstract of Trust
       Agreement is for convenience only, and the Trust Agreement is
       solely controlling as to provisions and interpretations, and any
       conflict between this Abstract and the Trust Agreement shall be
       decided in favor of the Trust Agreement.

(Doc. No. 26 at 3) (emphasis added). In light of such a disclaimer, we question

whether the “Abstract of Trust Agreement” could be relied upon to definitively

establish the existence of a valid revocable trust. Our reservations notwithstanding,

we give deference to the weight the trial court accorded this evidence in rendering

its decision.

       {¶26} The trial court found that the “Abstract of Trust Agreement” contained

a provision which provided insight into the purpose of the Trust and Rose’s and

Russ’s Sr.’s intent in creating the Brown Family Trust:

       5. Division of Trust Upon Death of Co-Trustor. Upon the death
       of either Co-Trustor, the trust property becomes allocated into
       two (2) trusts, designated as the Survivor’s Trust and the Bypass
       Trust, which at the time the Bypass Trust becomes Irrevocable.
       The Trustee may make distribution in the Survivor’s Trust and
       Bypass Trust in such a manner so as to qualify for the alternate
       valuations date under Internal Revenue Code Section 2032.

(Doc. No. 26 at 3).

       {¶27} The trial court ascertained that the intent of Rose and Russ, Sr. at the

creation of the Trust in 2000 was “A) to avoid and/or minimize estate taxes;” and

“B) to provide income to [Rose and Russ, Sr.] during their lifetimes.” (Doc. No. 80

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at ¶ 31). The trial court’s finding in this regard is consistent with the testimony

indicating that none of Rose’s or Russ, Sr.’s children were explicitly made aware of

the existence of the Brown Family Trust and were not told of any of the Trust’s

principal terms.4 Moreover, neither Rose’s or Russ, Sr.’s Last Will and Testament

expressly mentioned the Brown Family Trust. Thus, it is reasonable to conclude, as

the trial court did, that Rose’s and Russ, Sr.’s primary intent in creating the Brown

Family Trust was to establish a vehicle to provide income for them during their

lifetimes, as opposed to an estate planning tool for passing the property to next

generation.5       Accordingly, we find that the record supports the trial court’s

conclusion that the Brown Family Trust was created primarily with the intent to

benefit Rose and Russ, Sr. during their lifetimes.

                                      Successor Beneficiaries

         {¶28} The crucial matter before the trial court in this case was determining

the method of distribution of the Trust assets after Rose’s and Russ, Sr.’s deaths.

We acknowledge that the “Abstract of Trust Agreement” contains a provision

alluding to the distribution of Trust assets after both Rose’s and Russ, Sr.’s deaths,

which reads:

         9. Distribution after Death of Both Co-Trustors. Following the
         death of both Co-Trustors, the trust continues or is distributed in
4
  The trial court’s finding is also consistent with Anthony’s testimony regarding Russ, Sr.’s reluctance to
share any details regarding the Trust.
5
  Anthony also testified that Rose and Russ, Sr. were very concerned about being placed in a nursing home
facility and wanted to remain at their residence during their old age. Anthony explained that he and his wife
“kept them out of a home” by assisting Rose and Russ, Sr. with daily tasks. (Tr. at 78).


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Case No. 6-17-10


       whole or in part for the benefit of other named beneficiaries
       according to the terms of the trust.

(Doc. No. 26 at 3). However, without a corresponding Trust Agreement stating the

names of the successor beneficiaries, this provision of the “Abstract of Trust

Agreement” is of little value in resolving this matter. Thus, the trial court concluded

that “the Court does not believe that it is endowed with the power to merely ‘make

up’ provisions of the trust,” and found it could not determine from the evidence who

the beneficiaries of the Trust were intended to be after the deaths of Rose and Russ,

Sr. (Doc. No. 84 at 4).

       {¶29} On appeal, Appellants specifically take issue with the trial court’s

finding that it could not ascertain the successor beneficiaries of the Brown Family

Trust from the evidence presented at trial. Appellants claim that Rose’s and Russ,

Sr.’s 1985 Wills, which provide for all six children equally after the death of the

survivor, the inclusion of the “Co-Successor Trustee” provision in the “Abstract of

Trust Agreement,” which appoints both Sandra Farabee and Anthony Brown (one

child from each family) to be “Co-Successor Trustees,” and the testimony at trial

that demonstrated the Appellants viewed Russ, Sr. as a father figure establish that

the six children of Rose and Russ, Sr. were the intended successor beneficiaries

under the Trust.

       {¶30} We disagree with the Appellants that “Co-Successor Trustee”

provision in the “Abstract of Trust Agreement” can be so convincingly relied upon


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to reach this determination, and find that the mere mention of Sandra’s and

Anthony’s names as Co-Successor Trustees, upon the removal of both Rose and

Russ, Sr., is not dispositive to the issue of how to distribute the Trust assets after the

deaths of Rose and Russ, Sr. Rather, such language is consistent with the trial

court’s determination that the Brown Family Trust was established primarily to

benefit Rose and Russ, Sr. during their lifetimes.

        {¶31} We also do not find Appellants’ argument pertaining to Rose’s 1985

Will persuasive in determining how Rose and Russ, Sr. intended the Trust assets to

be distributed after their deaths. Had it been Rose’s specific intent, as the Appellants

contend, to distribute the Trust assets to all six children, according to the “Abstract

of Trust Agreement,” Rose could have specifically provided for such a contingency

in her Will.6 However, the record does not indicate such a contingent provision was

made.

        {¶32} As previously discussed, we specifically decline to accept Appellants’

characterization of the record on appeal that the trial court relied solely upon the

“Abstract of Trust Agreement,” while refusing to consider any parol evidence, to




6
  See paragraph 12 of the “Abstract of Trust Agreement,” which states:
        12. Character of All Property Unchanged Upon Transfer to Trust. All property
        transferred into the trust which had an original source as joint property shall remain
        joint property and all property which had an original source as a separate property
        shall remain separate property of the contributing spouse, unless other provision shall
        have been made therefore.
(Doc. No. 76 at 2) (emphasis added).

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Case No. 6-17-10


conclude that it could not ascertain the successor beneficiaries from the evidence

presented. To the contrary the trial court acknowledged:

       While the Court understands its power to interpret the language
       of documents, the Court does not believe that authority extends
       to inventing or making up language from whole cloth. The
       Court’s role is more appropriately to try to figure out what the
       settlor intended from the language that the settlor used rather
       than create language in an attempt to determine an outcome
       intended by the court or a litigant.

       ***

       The Abstract of Trust Agreement does not contain any language
       for the Court to even try to construe relating to the purpose of the
       trust after the death of Russell J. Brown and Rose Brown or the
       intent of the settlors other than their initial intent * * *. The Court
       acknowledges that there was some extrinsic evidence proffered
       (though in the Court’s opinion said evidence was lacking in both
       credibility and weight) concerning these issues. The Court does
       not believe it would be proper to attempt to invent an intent and
       purpose and then try to project them upon the settlors. There is
       simply no language for the Court to construe, interpret or
       evaluate. Likewise, with regard to these issues there is no
       provision to consider. The same is true as to contingent
       beneficiaries. The Court interprets the case law as requiring some
       language before the Court can use extrinsic or parole [sic]
       evidence to interpret the intent or purpose of a provision.

(Doc. No. 88 at 6-7).

       {¶33} Appellants direct our attention to case law in support of their position,

but a close reading of those cases reveals a key distinction. See e.g., Arnott v. Arnott,

132 Ohio St.3d 401, 2012-Ohio-3208; Saunders v. Mortensen, 101 Ohio St.3d 86,

2004-Ohio-24. For example, in each of these cases the primary instrument to be

construed—i.e., the trust agreement (Arnott) and the insurance contract

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(Saunders)—was properly introduced into the record before the trial court for its

terms to be examined. Neither of these cases cited by Appellants involve the precise

situation in the case at bar where the primary document, which is the keystone of

the declaratory judgment determination, is missing and cannot be located.

       {¶34} Moreover, we acknowledge Appellants’ reliance on Ohio law which

does not require a trust to be created by a written instrument and permits the creation

of an oral trust. However, the statute governing oral trusts explicitly states that “a

trust is not required to be evidenced by a trust instrument, but the creation of an oral

trust and its terms may be established only by clear and convincing evidence.” R.C.

5804.07. Here, notwithstanding the fact that the record contains some evidence

indicating that the Trust was created by a written instrument, Appellants overlook

the statutory requirement that the terms may be established only by clear and

convincing evidence. In this instance, the trial court concluded that there was no

evidence aside from the “Abstract of Trust Agreement” which met this standard.

       {¶35} In sum, the record reveals that the trial court prudently examined the

relevant evidence presented at trial and concluded that that evidence was insufficient

to determine the manner in which the Trust assets were intended to be distributed

after the deaths of Rose and Russ, Sr. Based upon the evidence in the record, we

find no error with the trial court’s view that the extraneous pieces of parol evidence

relied upon by Appellants would require it to “make up” or “invent” terms to



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identify the successor beneficiaries and determine the purpose of the Trust after

Rose’s and Russ, Sr.’s death in the absence of the Trust Agreement.

       {¶36} For these reasons, we find no error with the trial court concluding that

because the primary initial purposes of the Trust could longer be achieved and no

successor beneficiaries could be ascertained, the Brown Family Trust must be

terminated. See R.C. 5804.12(A), (B) (granting the trial court authority to terminate

a trust because of “circumstances not anticipated by the settlor,” or “if continuation

of the trust on its existing terms would be impracticable”); see also R.C. 5804.10(A)

(prescribing additional authority for termination when “a court determines that no

purpose of the trust remains to be achieved, or a court determines that the purposes

of the trust have become unlawful or impossible to achieve”).

               Distribution of Assets Upon the Termination of Trust

       {¶37} Appellants do not dispute the trial court’s decision to terminate the

Brown Family Trust on appeal. Rather, they contend that the trial court erred when

it ordered the Trust assets to be distributed only to Appellees upon the Trust’s

termination. Underlying their claim, in part, is the Appellants’ assertion that the

trial court mischaracterized Rose’s ownership of the Trust assets both prior to the

land being placed in trust and after the Trust was established and Rose was named

a Co-Settlor. While Appellants admit that Russ, Sr. was the titled owner of the land

before the creation of the Brown Family Trust, they dispute the trial court’s finding

that Rose’s ownership of the land was limited to a dower interest.

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         {¶38} One rationale stated by the trial court in its “Conclusions of Law” was

based upon its reliance on R.C. 5801.01(S) to reason that Rose only contributed her

dower interest to the Trust and was a settlor only with respect to that portion of the

Trust property.7 The trial court determined that because Rose predeceased Russ,

Sr., her dower interest was eliminated and Russ, Sr. retained sole ownership of the

property in the Trust after her death. Based upon this rationale, the trial court

concluded that Russ’s children alone were entitled to distribution of the Trust assets.

         {¶39} However, a review of the trial court “Conclusions of Law” establishes

that the trial court employed more than one rationale to support its ultimate decision

to distribute the Trust assets only to Appellees. The trial court engaged in a thorough

analysis of relevant statutory provisions to determine that the Trust assets should be

distributed to Appellees, Russ, Sr.’s children. The trial court found direction in R.C.

5804.09, which governs noncharitable trusts without ascertainable beneficiaries.

         (A) A trust may be created for a noncharitable purpose without
         a definite or definitely ascertainable beneficiary or for a
         noncharitable but otherwise valid purpose to be selected by the
         trustee. A trust created for a noncharitable purpose may not be
         enforced for more than twenty-one years.

         (B) A trust authorized by this section may be enforced by a
         person appointed in the terms of the trust or, if no person is so
         appointed, by a person appointed by the court.



7
 Section 5801.01(S) of the Revised Code defines a “Settlor” as “a person, including a testator, who creates,
or contributes property to, a trust. If more than one person creates or contributes property to a trust, each
person is a settlor of the portion of the trust property attributable to that person’s contribution except to the
extent another person has the power to revoke or withdraw that portion.”

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        (C) The property of a trust authorized by this section may be
        applied only to its intended use, except to the extent the court
        determines that the value of the trust property exceeds the
        amount required for the intended use. Except as otherwise
        provided in the terms of the trust, property not required for the
        intended use must be distributed to the settlor if then living or to the
        settlor’s successors in interest.

(emphasis added).

        {¶40} The trial court also sought guidance from R.C. 5808.17(D), which

further addresses distribution upon termination of a trust, and provides in pertinent

part:

        (D) If * * * an administration of the beneficiary’s estate is not
        open, the trustee, without liability, may make the distribution
        directly to the beneficiary’s heirs or devisees without requiring
        the opening or re-opening of estate administration proceedings if
        the trustee does not know of an adverse claim to the distribution
        and one of the following applies:

        ***

        (2) The beneficiary’s estate was administered as a testate estate
        in the jurisdiction in which the deceased beneficiary was
        domiciled at death, and the trustee does both of the following:

        (a) Distributes the personal property included in the
        distribution to the residuary devisee or devisees under the
        beneficiary’s will, in the same manner as the personal property
        would have been distributed in that administration if it had been part
        of the beneficiary’s testate estate;

        (b) Distributes the real property included in the distribution to
        the person or persons the trustee reasonably determines would have
        received the real property under the law of the jurisdiction or
        jurisdictions in which the real property is located.

(emphasis added).

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         {¶41} While explicitly disavowing any reliance upon these statutory

provisions as being “definitive,” the trial court further found it necessary to exercise

“its equitable powers8 and [looked] to said code sections for guidance” and noted

the “two potential resolutions of the asset distribution problem in this case set forth

above both however, end up ultimately with the same result.” (Doc. No. 88 at 10).

The trial court recognized the parties’ need for resolution in this case without an

adequate remedy at law under these specific circumstances where there is a missing

trust agreement and insufficient evidence in the record to ascertain the purpose of

the trust after the death of the primary beneficiaries with no successor beneficiaries

specifically named. Thus, the trial court fashioned an equitable remedy using R.C.

5808.17(D) and R.C. 5804.09(C) as a framework for distributing the Trust assets

after termination—both of which direct the assets to be distributed to Appellees

either under Russ, Sr.’s 2013 Will or the “law of the jurisdiction.”

         {¶42} We acknowledge Appellants’ position on appeal that, notwithstanding
                                                                          9
the initial marital or separate nature of the property,                       Rose maintained equal

ownership rights to the Trust property as a Co-Settlor by powers of revocation and

withdrawal which appear to be conferred her in the “Abstract of Trust Agreement,”

and therefore, Appellants as her successors in interest could have been entitled to a


8
  Pursuant to R.C. 2101.24(C), “The probate court has plenary power at law and in equity to dispose fully of
any matter that is properly before the court, unless the power is expressly otherwise limited or denied by a
section of the Revised Code.” Thus, where a matter is properly before the probate court, it has full power to
dispose of the case (unless the power is expressly otherwise limited).
9
  We note that the record suggests that all but 18 of the 129.54 acres was inherited by Russ. It appears from
the record that the remaining acreage was purchased during the marriage.

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Case No. 6-17-10


half share of the Trust assets. Nevertheless, we do not find their argument on appeal

that the additional evidence they wished to present regarding the character of the

real estate prior to and during the administration of the Trust while Rose was alive

would be determinative in resolving the primary issue of distribution in this case

based upon the following discussion and therefore find no error in the trial court

excluding it.

       {¶43} In reviewing the trial court’s method of distribution of the Trust assets,

we note that the quit claim deed specifically states the following in the granting

clause transferring the 129.54 acres into the Trust.

       RUSSELL BROWN AND ROSE A. BROWN HUSBAND AND
       WIFE, who acquired title as RUSSELL BROWN grants to,
       RUSSELL BROWN AND ROSE A. BROWN, TRUSTEES, or his
       successor in trust, under the Brown Family Trust, dated 6/15/00,
       and any amendments thereto, the following described real
       property located in the County of Hardin State of Ohio[.]

(Doc. No. 69) (emphasis added).

       {¶44} This notwithstanding, we also find support in the record for the trial

court’s equitable decision based upon the specific facts and circumstances of this

case. Even assuming arguendo that Rose, as Co-Settlor, retained equal ownership

rights to the Trust assets, the fact remains unchanged that there is no Trust

Agreement or any other credible evidence found by the trial court directing the

distribution of the Trust property after Rose’s death. It is undisputed that Rose

predeceased Russ, Sr. By operation of her 1985 Will her probate estate passed to


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Russ, Sr. Moreover, the “Abstract of Trust Agreement,” also states that Rose and

Russ, Sr. “are designated as Co-Trustees, to serve until the death, resignation or

incompetence of one of them, and the remaining Co-Trustee shall continue to act as

the sole Trustee.” (Doc. No. 76 at ¶ 2). This provision is consistent with the

common thread found throughout this case that the Trust was created to provide for

Rose and Russ, Sr. during their lifetimes and is also consistent with the couples’

1985 Wills, which left everything not otherwise specified to the survivor of the two,

who in this instance was Russ, Sr.

       {¶45} Accordingly, we find no error with the trial court’s equitable

application of R.C. 5808.17(D) and/or R.C. 5804.09(C) to the unique facts of this

case. Moreover, we agree with the trial court’s interpretation that either statute

would direct the distribution of the Trust property to Appellees. Furthermore,

Appellants have presented us no compelling alternative to find the trial court’s

distribution to be error. Based on the foregoing, we overrule the first, second, third,

and fifth assignments of error.

                            Fourth Assignment of Error

       {¶46} In their fourth assignment of error, Appellants assert that the trial court

erred in excluding a statement allegedly made by Rose, prior to her death, to her son

as hearsay. The decision to admit or exclude evidence rests in the trial court’s sound

discretion and we will not reverse its decision absent an abuse of that discretion.

Wightman v. Consolidated Rail Corp., 86 Ohio St.3d 431, 437 (1999). Abuse of

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Case No. 6-17-10


discretion it implies that the court’s attitude is unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

      {¶47} The statement raised in this assignment of error occurred at trial during

Appellant Jack Lambert’s testimony. On direct examination, Jack was asked when

he first became aware of the “Brown Family Trust.” Jack explained that he had had

a conversation with Rose, his mother, about the Trust. The trial court permitted

counsel to continue to inquire about the conversation over objection from opposing

counsel until Jack began to testify to what Rose had said about the distribution of

the Trust. The trial court sustained opposing counsel’s objection denying Jack the

opportunity to answer.

      {¶48} Appellants maintain on appeal that Jack was going to testify at trial

regarding Rose’s statements to him “that the Trust assets were to be distributed in

accordance with the 1985 Wills.” (Appt. Brief at 12). They argue that Rose’s

statement to Jack was admissible under exceptions to hearsay in Evid.R. 801(D)(2),

Evid.R. 804(B)(5)(a), and Evid.R. 803(3). Appellants cite no authority supporting

their argument that Rose’s statement to Jack is admissible under Evid.R. 801(D)(2)

(as a party opponent) or under Evid.R. 804(B)(5)(a) (as a Co-Trustee), and thus we

do not find their positions bolstered by mere assertions as to the applicability of

these hearsay exceptions to be persuasive.

      {¶49} Moreover, even assuming arguendo that Rose’s statement to Jack was

admissible because it was a statement of her present state of mind and reflected her

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Case No. 6-17-10


intent for the future under Evid.R 803(3), we find that the exclusion of the statement

in the instant matter was harmless. Rose’s purported statement to Jack that the Trust

property was to be distributed in the same matter as the 1985 Wills does not shed

any further insight as to how the Trust assets were intended to be distributed absent

the existence of a trust agreement. Contrary to Appellants’ position, it could be

maintained that the trial court distributed the Trust assets in accordance with Rose’s

1985 Will, which directed her probate estate to pass to Russ, Sr. in the event she

predeceased him. As previously mentioned, there were no contingencies in Rose’s

Will with regard to her interest in the Trust property. Rather, everything passed to

Russ, Sr. as the surviving spouse. In this respect, the trial court’s distribution of the

Trust assets is consistent with Rose’s 1985 Will. Accordingly, we do not find the

trial court’s exclusion of the statement to be reversible error and the fourth

assignment of error is overruled.

       {¶50} For all these reasons, the assignments of error are overruled and the

judgment of the trial court is affirmed.

                                                           Judgment Affirmed

WILLAMOWSKI and SHAW, J.J., concur.

/jlr




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