[Cite as In re Estate of Stockmaster, 2011-Ohio-3006.]




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




IN THE MATTER OF
THE ESTATE OF                                                     CASE NO. 13-10-43
     STELLA R. STOCKMASTER,

[HAROLD STOCKMASTER –                                             OPINION
    APPELLANT].




                  Appeal from Seneca County Common Pleas Court
                                 Probate Division
                             Trial Court No. 20071114

                                      Judgment Affirmed

                             Date of Decision:           June 20, 2011




APPEARANCES:

        James H. Ellis III for Appellant.

        Ronald R. Smith for Appellee.
Case No. 13-10-43



PRESTON, J.

       {¶1} Appellant, Harold J. Stockmaster (hereinafter “Harold”), appeals the

judgment of the Seneca County Court of Common Pleas, Probate Division, which

denied his motion for an order authorizing the sale of real property in the estate of

Stella R. Stockmaster. For the reasons that follow, we affirm.

       {¶2} This appeal involves a motion filed by Harold acting in his individual

capacity as a legatee under the Last Will and Testament of Stella R. Stockmaster.

The facts are largely not in dispute and are stated as follows.             Stella R.

Stockmaster    had   four   children:   Harold   Stockmaster,    Appellee     Francis

Stockmaster, Appellee Virginia Ruffing, and Appellee Dorothy Hossler (now

deceased and represented as the Estate of Dorothy Hossler). None of the appellees

filed response briefs in this appeal. On November 2, 1993, Stella R. Stockmaster

executed her Last Will and Testament (hereinafter the “will”). She later died on

November 20, 2006. At the time of her death, Stella owned an undivided one-half

interest in three adjoining parcels of real property in Seneca County, Ohio. These

parcels of real property included a 38.962 acre parcel, a 71.5 acre parcel, and an

81.5 acre parcel.

       {¶3} Prior to Stella’s death, Harold owned the other undivided one-half

interest in the 38.962 acre parcel and the 71.5 acre parcel, and had farmed these

parcels of real property most of his adult life. The other undivided one-half

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interest in the 81.5 acre parcel was jointly owned by Harold, Francis Stockmaster,

Virginia Ruffing, and Dorothy Hossler.

       {¶4} On April 17, 2007, Stella’s will was admitted to the Seneca County

Probate Court in Case No. 20071114. On that same day, according to the terms of

Stella’s will, Dorothy Hossler and Harold were appointed by the court as co-

executors of the Stella R. Stockmaster Estate.

       {¶5} In addition, under Article V, Stella provided Harold with an option to

purchase her one-half interest in “any integral farm unit.” In particular, Article V

stated as follows:

       Article V: All the rest and remainder of any interest in any farm
       real estate I give to my children, Dorothy A. Hossler, Virginia R.
       Ruffing, Francis H. Stockmaster, share and share alike, per
       stirpes; Provided, however, my son Harold J. Stockmaster may
       purchase this and any other farm real estate at the appraised
       price as accepted by the Probate Court of my estate. He shall
       have thirty (30) days after the appraisal is approved by the
       Probate Court to elect to purchase any integral farm unit, i.e.,
       my estate interest in the Fritz Farm, the Eight-one (81) acre
       home place, or the Sixty (60) acre parcel of land to the North of
       the home place, with the payment for the other children’s share
       to be made in full within sixty (60) days after the election to
       purchase. 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.

       {¶6} The appraisal and inventory of the property were approved by the

court on November 16, 2007. On that same day, Harold presented his written


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offer to purchase the 38.962 acre parcel and the 71.5 acre parcel pursuant to the

option. Harold’s offer to purchase was accepted by Dorothy Hossler and Harold

Stockmaster, co-executors of the Stella R. Stockmaster Estate, on that same day as

well.

        {¶7} Thereafter, it was discovered that a barn from the 81.5 parcel was

encroaching onto the 71.5 parcel. In response, Harold executed an addendum to

his offer to purchase, which included additional acres of land that were a part of

the 81.5 acre parcel. Dorothy Hossler, Dorothy’s husband, and Virginia Ruffing

all signed the addendum on November 26, 2007. Francis Stockmaster and his

wife, Veronica Stockmaster, did not sign the addendum.

        {¶8} Procedurally, nothing else happened until Dorothy A. Hossler’s death

on or about September 4, 2009, when, as a result of Dorothy’s death, on December

4, 2009, Harold was appointed the sole fiduciary/executor of the Stella R.

Stockmaster Estate.

        {¶9} Thereafter, on June 3, 2010, Harold filed a motion for an order

authorizing the sale of real property in the Estate of Stella R. Stockmaster. On

August 24, 2010, Francis Stockmaster filed a motion in opposition to Harold’s

motion.

        {¶10} On August 26, 2010, a hearing concerning Harold’s motion was held.

Consequently, on October 5, 2010, the trial court issued its decision denying

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Harold’s motion and finding that the option to purchase real estate contained in

Article V of Stella’s will had lapsed.

       {¶11} Harold now appeals and raises three assignments of error.

                         ASSIGNMENT OF ERROR NO. I

       THE PROBATE COURT FAILED TO PROPERLY
       INTERPRET AND FURTHER THE INTENTION OF STELLA
       STOCKMASTER AS EXPRESSED IN HER WILL.

       {¶12} In his first assignment of error, Harold argues that the trial court

failed to properly interpret and carry out Stella R. Stockmaster’s intention as

expressed in her will.

       {¶13} It is well settled that the construction of a will is a question of law,

and thus, we will apply a de novo standard of review. Woolley v. Woolley (2010),

190 Ohio App.3d 18, 2010-Ohio-4177, 940 N.E.2d 620, ¶17, citing Dunkel v.

Hilyard (2001), 146 Ohio App.3d 414, 418, 766 N.E.2d 603, citing McCulloch v.

Yost (1947), 148 Ohio St. 675, 677, 76 N.E.2d 707. The most fundamental tenet

for the construction of a will mandates that the court ascertain and carry out,

within the bounds of the law, the intent of the testator. Woolley, 2010-Ohio-4177,

at ¶17, citing Domo v. McCarthy (1993), 66 Ohio St.3d 312, 314, 612 N.E.2d 706.

Such intention must be ascertained from the words contained in the will. Oliver v.

Bank One, Dayton, N.A. (1991), 60 Ohio St.3d 32, 34, 573 N.E.2d 55. “These

words, ‘if technical, must be taken in their technical sense, and if not technical, in

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their ordinary sense, unless it appear[s] from the context that they were used by

the testator in some secondary sense.’” Polen v. Baker (2001), 92 Ohio St.3d 563,

565, 752 N.E.2d 258, quoting Townsend’s Exrs. v. Townsend (1874), 25 Ohio St.

477, paragraph three of the syllabus.

       {¶14} If the language of the will is clear and unambiguous, the testator’s

intent must be ascertained from the express terms of the will itself. Domo, 66

Ohio St.3d at 314. The court may consider extrinsic evidence to determine the

testator’s intent only when the language used in the will creates doubt as to the

meaning of the will. Oliver, 60 Ohio St.3d at 34.

       {¶15} Here, the issue on appeal concerns determining Stella R.

Stockmaster’s intention as it relates to the option provision in her will. The

language pertaining to Harold’s option was stated in Article V of the will, and in

pertinent part, provided:

       [Harold] shall have thirty (30) days after the appraisal is
       approved by the Probate Court to elect to purchase any integral
       farm unit, * * * with the payment for the other children’s share
       to be made in full within sixty (60) days after the election to
       purchase. 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.

(Emphasis added).




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       {¶16} After reviewing the four corners of Stella’s will, we find that the

language contained in the option provision is plain and unambiguous, and that it

demonstrates a clear intention on the part of the testator.         Article V clearly

articulates that Stella’s intent was to have this real estate option process start and

end within a specific amount of time, and that if the transaction did not close by

the end of that time then Harold’s right to purchase the property under the will

expired. As the provision explicitly stated, closing had to be completed within

sixty days of the time of the election “or the right to purchase shall lapse.”

       {¶17} Harold tries to claim that the sixty day time provision was not a strict

time requirement but rather “evidenced [Stella’s] assumption that Appellant would

obtain some sort of financing” so he could close the transaction. (Appellant’s

Brief at page 8). We find no merit to this argument. In addition to the option

language in Article V, the language contained in the option provision clearly

provides “[a]ll the rest and remainder of any interest in any farm real estate I give

to my children, Dorothy A. Hossler, Virginia R. Ruffing, Francis H. Stockmaster,

share and share alike, per stirpes”; provided Harold did not follow through with

the option. Therefore, we conclude that it was Stella’s intention that in the event

that Harold failed to close on the property within sixty days, Harold’s right to

purchase Stella’s undivided one-half interest in the land would cease, and Stella’s



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undivided one-half interest in the property would pass to Francis, Virginia, and

Dorothy under the first sentence of Article V.

       {¶18} While it is clear that Harold timely presented his intention to exercise

the option provided in Article V of Stella’s will for the 71.5 acre parcel and the

38.962 acre parcel, the record indicates that Harold failed to make payment to his

other siblings and failed to close on the real estate property within sixty days from

when he presented his offer to purchase. Accordingly, pursuant to the plain

language of Stella’s will, Harold’s right to purchase the property lapsed. As a

result, we find that the trial court did not err in denying Harold’s motion to force a

sale of the property under Stella’s option provision since it is clear that his rights

under the provision had already terminated.

       {¶19} We note that in his first assignment of error, Harold also asserts that

it was impossible for him to comply with the condition subsequent (which was to

close within sixty days) due to an encroachment and interference from his family.

Harold argues that unlike conditions precedent, because it was impossible for him

to have performed the condition subsequent, the trial court should have found the

condition void and declared the devise discharged and free of the condition.

However, we find that his arguments pertaining to conditions precedent,

conditions subsequent, and impossibility, relate more to Harold’s second



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assignment of error, and as such, we will address those arguments in greater detail

below.

         {¶20} Harold’s first assignment of error is, therefore, overruled.

                         ASSIGNMENT OF ERROR NO. II

         THE PROBATE COURT MISAPPLIED THE DOCTRINE OF
         DEVIATION AND THEREBY FRUSTRATED THE INTENT
         OF STELLA STOCKMASTER AS EXPRESSED IN HER
         WILL.

         {¶21} In his second assignment of error, Harold argues that the trial court

misapplied the doctrine of deviation when it failed to use the doctrine to give

effect to Stella Stockmaster’s clear intention.

         {¶22} The doctrine of deviation is a principle that allows variation from the

term of a will or trust to avoid defeating the testator’s original intent. In particular,

the Ohio Supreme Court has stated that by using the doctrine a court can “‘direct

or permit a deviation from the terms of the trust where compliance is impossible or

illegal, or where owing to circumstances not known to the settlor and not

anticipated by him compliance would defeat or substantially impair the

accomplishment of the purposes of the trust.”          Daloia v. Franciscan Health

Systems of Cent. Ohio, Inc. (1997), 79 Ohio St.3d 98, 106, 679 N.E.2d 1084,

quoting Scott, Law of Trusts, at 323, Section 381. However, in applying the

doctrine of deviation, the court cannot change the original objective of the testator;


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rather, the doctrine is only used for the purpose of giving effect to the testator’s

intention. Id.

       {¶23} Here, Harold did not specifically raise the doctrine of deviation

below; however, Harold did argue that due to an encroachment on the 71.5 acre

parcel and interference from his brother, Francis, and his brother’s wife, it was

impossible for him to close within sixty days, and thus he was unable to comply

with the condition subsequent. On appeal, Harold argues that unlike conditions

precedent, because it was impossible for him to have performed the condition

subsequent, the trial court should have found the condition void and declared the

devise discharged and free of the condition. Moreover, he asserts that there is

nothing in the will that would suggest that Stella intended or even contemplated a

lack of cooperation on the part of her children nor the presence of an encumbrance

on one of the parcels of land contained in the option provision.

       {¶24} The trial court did consider Harold’s argument that it had been

impossible to comply with the terms of Stella’s will. Nevertheless, the trial court

ultimately rejected Harold’s argument finding that Harold had failed to present

any evidence of a legal impediment preventing the transfer of the 71.5 acre parcel

and the 38.962 acre parcel. (Oct. 5, 2010 JE at 7-8). Rather, the trial court found

that the only evidence presented was that Harold had been unable to obtain the

financing he wanted from the lending institution he wanted at the time he

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exercised his option. (Id.). The trial court went on to reason that it could have

been possible for Harold to close within the sixty day time period since Harold

was able to provide the necessary funds now that he was working through a

different lender. (Id.).

       {¶25} There are two kinds of conditions: conditions precedent and

conditions subsequent. A condition precedent is a condition that when it happens

an estate will vest, and a condition subsequent is a condition that defeats an estate

already vested. Megery v. Selymes (1968), 14 Ohio App.2d 28, 31-32, 235 N.E.2d

725. Conditions that involve a devise of real estate that are also impossible to

perform are treated differently depending on whether the condition is a condition

precedent or a condition subsequent. Where a devise of real property is subject to

a condition precedent, which is or becomes impossible of performance, typically

the real property will pass under the residuary clause or as intestate estate. Morley

v. Calhoun (1905), 18 Ohio C.D. 163. However, “‘when a condition subsequent

was impossible at the time of the execution of the will or at the testator’s death, or

when it becomes impossible after the testator’s death, the condition is void and the

devisee or legatee takes the bequest or devise discharged and free of the

condition.’” Megery, 14 Ohio App.2d at 32, quoting 56 Ohio Jurisprudence 2d

252, Wills, Section 741.



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       {¶26} Nevertheless, despite Harold’s arguments to the contrary, we do not

believe that it is necessary to discuss the nature of any alleged conditions

contained in the will because we do not believe that the trial court abused its

discretion in finding that Harold failed to demonstrate that performance of the

option was impossible.

       {¶27} It is hard to determine from the record exactly why Harold could not

close within sixty days of him presenting his written offer. There was some

evidence that an encumbrance was discovered on the 71.5 acre parcel, and that this

encumbrance had prevented Harold from obtaining financing. Also, there was

some evidence that his brother, Francis, and his brother’s wife had prevented him

from following through with purchase by not signing Harold’s addendum to his

offer to purchase. However, all that is in the record are these general assertions.

None of these issues were clearly presented in way of testimony or documentary

evidence at the hearing nor was there any explanation as to why these issues were

no longer rendering the sale impossible. For example, despite the passage of three

years, the encumbrance still existed, Francis and his wife still refused to agree to

any purchase of real estate from the 81.5 acre parcel, yet again, for some not

clearly articulated reason, Harold was now able to follow through with the

purchase of the two parcels. All we can tell from the testimony and evidence is

that Harold was now going through a different lender and had accepted the fact

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that he would have to purchase the property despite the encumbrance on the 71.5

acre parcel. Given the fact that the reasons for why Harold claims the option

provision was “impossible” to perform still existed at the time he filed his motion,

the fact that despite the presence of these problems, Harold was now (three years

later) able to follow through with the purchase, and the lack of clearly articulated

evidence demonstrating just how those problems rendered the option provision

impossible, we find that the trial court’s decision was not an abuse of discretion.

       {¶28} Harold’s second assignment of error is, therefore, overruled.

                       ASSIGNMENT OF ERROR NO. III

       THE PROBATE COURT UNFAIRLY APPLIED                                   THE
       DOCTRINES OF LACHES AND ESTOPPEL.

       {¶29} In his last assignment of error, Harold argues that the trial court

unfairly applied the doctrines of laches and estoppel when there was evidence in

the record that demonstrated that there were “ongoing and continuous efforts to

close the transaction during the entire 3-year period.”

       {¶30} However, again we note that Harold did not specifically raise these

doctrines below. Instead, Harold only implied in his motion that, as a result of the

interference with his family and the discovery of the encroachment, the trial court

should toll or stay the sixty day time limit. In considering Harold’s argument to

toll or stay the sixty day time period, the trial court found as follows:


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       Harold Stockmaster implies in his motion that negligence with
       his siblings, subsequent to the discovery of the encroachment,
       tolls the 60 day closing time period articulated in the Option.
       Stella R. Stockmaster died on November 20, 2006. The time,
       within which the closing for a real estate transaction
       contemplated by the Option, expired nearly three (3) years ago.
       To date, no motion has been filed with this Court to toll the
       running of any option period or closing date. No evidence is
       before the Court indicating any fiduciary appointed in this
       Estate agreed to the tolling of the 60 day time period. The Court
       therefore finds the 60 day time period to close articulated in the
       Option was not stayed or tolled.

(Oct. 5, 2010 JE at 8).

       {¶31} After reviewing the record, we find the trial court’s decision was

reasonable given the facts of this case. Again, not only did Harold fail to clearly

articulate why the trial court should toll or stay the sixty day time period, but

contrary to Harold’s arguments, the record is completely void of any documents

demonstrating “ongoing and continuous efforts to close the transaction during the

entire 3-year period.” After drafting the addendum to his offer to purchase, which

his other siblings signed on November 26, 2007, the only other document

pertaining to the sale of the property pursuant to the option provision is Harold’s

motion for order authorizing the sale of real property filed on June 3, 2010 –

almost three years after the expiration of the sixty day time period. While Harold

may claim that during these three years he had been attempting to resolve the

problems and move forward with his right to purchase property under the option in


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Stella Stockmaster’s will, the fact of the matter remains that Harold did nothing in

his individual, nor in his co-executor, capacity to toll the running of the sixty day

option period.

       {¶32} Overall, as we stated above, the will is unambiguous and shows a

clear intent on the part of Stella R. Stockmaster that Harold had sixty days after he

presented his offer to purchase to make payment to his other siblings and close on

the property. Not only did Harold fail to do so, but Harold failed to adequately

demonstrate how performance of the option had been impossible or why the sixty

day time period should have been stayed or tolled. Consequently, we find that the

trial court did not err in finding that Harold’s right to purchase the property under

the option had lapsed, and also did not err in denying Harold’s motion to force a

sale of the real property.

       {¶33} Harold’s third assignment of error is, therefore, overruled.

       {¶34} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                Judgment Affirmed

ROGERS, P.J. and WILLAMOWSKI, J., concur.

/jlr




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