[Cite as Bills v. Babington, 2019-Ohio-3924.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      HURON COUNTY


Michael M. Bills                                    Court of Appeals No. H-19-001

        Appellant                                   Trial Court No. CW 2017 00001

v.

Tara Babington, Administrator,
etc., et al.                                        DECISION AND JUDGMENT

        Appellees                                   Decided: September 27, 2109

                                                *****

        Carl J. Kamm III, for appellant.

        Kathryn Frombaugh, for appellees.

                                                *****

        PIETRYKOWSKI, J.

        {¶ 1} In this will-construction action, plaintiff-appellant, Michael M. Bills, appeals

the January 15, 2019 judgment of the Huron County Court of Common Pleas, Probate

Division, which granted summary judgment in favor of appellee Kathryn Frombaugh,
et al., determining that appellees, the minor children of the sole will beneficiary, were

entitled to share equally under the will. For the reasons that follow, we affirm.

       {¶ 2} The will that is the subject of this dispute was admitted to probate on June

15, 2017, following the death of the testator, Ronald L. Bills, on May 14, 2017.

Ronald’s surviving next-of-kin include his nephew, appellant Michael Bills, and a great-

niece and great-nephew. Ronald’s will provided that after payment of all his debts and

funeral expenses, the remainder of his estate would go to “my beloved step-

granddaughter, Erica K. Hemsath-Anderson, in fee simple, absolutely and forever, per

stirpes.” The will also appointed Erica as executrix. The will was executed on December

10, 2007. Erica predeceased Ronald in April 2016, and was survived by her two minor

children.

       {¶ 3} On December 29, 2017, appellant commenced this action. Appellant named

as defendants the administrator of the estate, Tara Babington, the suggested beneficiaries,

M.A. and S.A., the minor children of Erica, and Emily and Evan Bills, great-niece and

great-nephew of Ronald. On February 2, 2018, Kathryn Frombaugh, guardian ad litem

for the minor children, filed an answer to appellant’s complaint.

       {¶ 4} On December 11, 2018, appellant and the guardian ad litem to appellees

filed motions for summary judgment. Appellees argued that the use of the term “per

stirpes” when read in the context of the entire will evidenced an intent to make a

secondary gift to the heirs of Erica, the named devisee. Appellees further asserted that

Ronald had maintained a relationship with the children until his death.




2.
       {¶ 5} Conversely, appellant argued that the gift to Erica lapsed upon her death

because Ohio’s anti-lapse statute, R.C. 2107.52, does not apply to step-grandchildren and

that the term “per stirpes” refers only to the mode of distribution or the manner in which

the shares are divided in a root generation; it does not create a right of survivorship.

       {¶ 6} On January 15, 2019, the trial court granted appellees’ motion for summary

judgment. The court concluded that in reviewing the language used in the will and the

circumstances surrounding the execution of the will, Ronald’s bequest to Erica “per

stirpes” intended a secondary gift to her heirs if she predeceased him.

       {¶ 7} This appeal followed with appellant raising two assignments of error for our

consideration:

              First Assignment of Error: The trial court erred in failing to hold

       that the term “per stirpes” is only a mode of distribution.

              Second Assignment of Error: The trial court erred in granting

       summary judgment in favor of appellees and against appellant by holding

       that Ronald L. Bills intended a secondary gift to go to Erica K. Hemsath-

       Anderson’s heirs if she predeceased him.

       {¶ 8} As the assignments of error are related, they will be jointly addressed. Our

review of both a judgment involving the construction of a will and a summary judgment

determination is de novo. Belardo v. Belardo, 187 Ohio App.3d 9, 2010-Ohio-1758, 930

N.E.2d 862, ¶ 7 (8th Dist.); Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671

N.E.2d 241 (1996).




3.
       {¶ 9} We begin with the basic law guiding will interpretation which provides;

              “[i]n the construction of a will, the sole purpose of the court should

       be to ascertain and carry out the intention of the testator.” Oliver v. Bank

       One, Dayton, N.A. (1991), 60 Ohio St.3d 32, 34, 573 N.E.2d 55, 58, citing

       Carr v. Stradley (1977), 52 Ohio St.2d 220, 6 O.O.3d 469, 371 N.E.2d 540,

       paragraph one of the syllabus, and Townsend’s Exrs. v. Townsend (1874),

       25 Ohio St. 477, 1874 WL 101, paragraph one of the syllabus. This intent is

       to be gleaned from the words used. Id., citing Townsend’s Exrs., paragraph

       two of the syllabus. These words, “‘if technical, must be taken in their

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

       appear(s) from the context that they were used by the testator in some

       secondary sense.’” Ohio Natl. Bank of Columbus v. Adair (1978), 54 Ohio

       St.2d 26, 30, 8 O.O.3d 15, 17, 374 N.E.2d 415, 418, quoting Townsend’s

       Exrs., 25 Ohio St. 477, paragraph three of the syllabus.

Polen v. Baker, 92 Ohio St.3d 563, 565, 752 N.E.2d 258, 260 (2001).

       {¶ 10} Paramount is “‘[t]he general rule [that] in the interpretations of wills * * *

the intention of the testator is to govern, and when that is ascertained, all things must

yield to it, the object being to carry out the purposes and intention of the testator as

expressed in his will, and all technical rules must bend to this rule.’” Id. at 566, quoting

Jewett v. Jewett, 12 Ohio C.D. 131, 1900 WL 1176, *2 (1900).




4.
       {¶ 11} At issue in this case is the interpretation of the sole bequest in Ronald’s

will, which provides:

              ITEM II. I hereby appoint, devise and bequeath all the rest, residue

       and remainder of my property, real, personal and mixed, of every kind and

       description, wheresoever situated, which I own, have the power of

       appointment over, or have the right to dispose of at the time of my decease

       to my beloved step-granddaughter, Erica K. Hemsath-Anderson, in fee

       simple, absolutely and forever, per stirpes.

       {¶ 12} Specifically, at issue is whether the term “per stirpes” created a secondary

devise to the heirs of beneficiary, Erica. The term means that a gift is “[p]roportionately

divided between beneficiaries according to their deceased ancestor’s share.” Black’s

Law Dictionary (11th Ed.2019). Ohio courts have uniformly agreed that the term “per

stirpes” relates to the mode of distribution rather than the manner of distribution. In other

words, the term does not create a survivorship right, it explains how the estate is to be

divided among the persons entitled to take. Belardo, 187 Ohio App.3d 9, 2010-Ohio-

1758, 930 N.E.2d 862, at ¶ 18.

       {¶ 13} The parties debate the trial court’s reliance on a case where the court

interpreted a “per stirpes” clause, without a secondary taker, as providing a secondary gift

to the heirs of the named person who predeceased the testatrix. Richland Trust Co. v.

Becvar, 44 Ohio St.2d 219, 339 N.E.2d 830 (1975). In Becvar, the testatrix made several

bequests in her will; many of the bequests stated that if the primary taker predeceased




5.
her, the gifts would lapse. Id. at 221-222. At issue was the provision in the residuary

clause which provided: “(o)ne seventh (1/7) to Louise Hummel, per stirpes.” Id. at 219.

       {¶ 14} Looking at the entire will, the court determined that where the testatrix

intended a gift to lapse, it was specifically provided. Id. at 224. Thus, the court, in order

to uphold the intended meaning of the devise, held that the “per stirpes” designation

meant that the gift did not lapse and intended that a secondary gift go to the heirs of the

named person. Id. at 225. In making this determination, the Becvar court relied upon a

prior decision which held:

              When a testator’s will clearly reveals a general plan or intention as

       to the disposition of his property, and a situation arises that is not within the

       express language of the will, such general plan may be regarded as existing

       but incompletely expressed, and the failure to provide for the situation

       inadvertent rather than intentional, and a gift may be implied for the

       purpose of completing the general plan.

Casey v. Gallagher, 11 Ohio St.2d 42, 43, 227 N.E.2d 801 (1967), paragraph five of the

syllabus.

       {¶ 15} As in Becvar, the devise at issue provides the designation “per stirpes” but

fails to provide the class of persons who will take under the clause. Appellant contends

that, unlike Becvar, there was no plan or scheme of distribution that the court could rely

on to glean Ronald’s intent.




6.
       {¶ 16} In granting appellees’ motion for summary judgment, the trial court

determined:

              Ronald provided for a bequest to Erica per stirpes, but did not

       expressly designate the class of persons who were to take in the event she

       did not survive him. The anti-lapse statute, R.C. 2107.52(B), does not

       apply because Erica is a stepgrandchild of Ronald, not a stepchild. From

       the content of his will in its entirety, however, and using the rules of

       construction set forth above, this Court concludes that Ronald intended a

       secondary gift to go to Erica’s heirs if she predeceased him. Not only does

       his will contain no other bequests, Ronald’s will makes absolutely no

       mention of any other person or class of persons, including any of his own

       lineal descendants. Erica was to have received all of his estate and to be the

       fiduciary of that estate. He used the strong, unequivocal language of “to

       my beloved step-granddaughter, Erica K. Hemsath-Anderson, in fee simple,

       absolutely and forever, per stirpes” in making his bequest to her. His estate

       plan was clear.

       {¶ 17} Independently reviewing the language employed in the will and the

relevant case law, we cannot say the court’s decision was in error. The language used in

the devise was absolute and unequivocal: to my “beloved step-granddaughter * * *

absolutely and forever, per stirpes.” The intent is further evidenced by the entirety of the




7.
gift. To ignore the inclusion of the “per stirpes” designation would thwart Ronald’s

intent in making the bequest.

       {¶ 18} Based on the foregoing, we find that no genuine issue of fact remains and

the trial court did not err in granting summary judgment to appellees. Appellant’s first

and second assignments of error are not well-taken.

       {¶ 19} On consideration whereof, we find that substantial justice was done the

party complaining and the judgment of the Huron County Court of Common Pleas,

Probate Division, is affirmed. Pursuant to App.R. 24, appellant is ordered to pay the

costs of this appeal.


                                                                       Judgment affirmed.


       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
Gene A. Zmuda, J.                                          JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE

           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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