Thomas Bogar died testate in June 2014. An inventory and appraisal of his estate was filed with the probate court in December 2014 and approved by the court.
Items of the inventory provided a valuation of \($99,705.00\) for all tangible personal property found and located at Thomas’s property located at 13300 Diagonal Road, Salem, Ohio, which was operated in the past as a farm. The inventory and appraisal also included intangible personal property at \($624,811.06\) and real property at \($173,070.00,\) for a gross estate value of \($915,586.06.\) The appraisal divided the tangible personal property into (1) Trucks/Auto/Farm Equipment; (2)
Shop Tools; and (3) Heated Shop. Thomas’s will contained only two bequests, one specific and one residual. Item II gave Thomas’s brother Charles the real estate at Diagonal Road together with all contents of the real estate. Item III devised the residuary estate to six persons including Mark Baker who was appointed executor in the will.
A dispute arose between Charles and Baker regarding the correct interpretation of the phrase “all contents of said real estate” in the specific bequest to Charles. Charles interpreted that phrase to include all of the personal and other property physically located on the real estate on the date of Thomas’s death.
Baker argued that the phrase was to be interpreted to include only household goods and personal property. Baker contended that all property including tools, farm equipment, machinery, and vehicles, lawn and garden equipment, and the contents of outbuildings and the garage were to be included in the residuary estate.
The probate court agreed with Baker. The probate court found that all of the personal property in the category of Trucks/Auto/Farm Equipment passed to the residuary beneficiaries. The probate court stated that there was no evidence showing that Thomas intended to include the vehicles and farm equipment in the specific bequest to Charles. The court excluded these items from the definition of personal property due to their increased value and ability to be titled. The probate court defined “contents of said real estate” as “all household goods, personal property furnishing [sic], including all contents of the outbuildings which are typically found in a home environment.”
Charles appealed to the Ohio Court of Appeals.
WAITE, JUDGE “‘In the construction of a will, the sole purpose of the court should be to ascertain and carry out the intention of the testator.’” Polen v. Baker, 752 N.E.2d 258 (2001), quoting Oliver v. Bank One, Dayton, N.A. 573 N.E.2d 55 (1991). This intent must be ascertained from the language used in the will. The words used in the will, “‘if technical, must be taken in their technical sense, and if not technical, in their ordinary sense, unless it appear[s] from the context that they were used by the testator in some secondary sense.’” Ohio Natl. Bank v. Adair, 374 N.E.2d 415 (1978), quoting Townsend’s Exrs. v. Townsend, 25 Ohio St.
477 (1874). All the parts of the will must be construed together, and effect, if possible, given to every word contained in the will.
The court may consider extrinsic evidence to determine the testator’s intent only when the language used in the will creates doubt as to its meaning. But while extrinsic evidence may be considered where the language of the will is ambiguous, where the language of the will is clear and unambiguous, the testator’s intent must be ascertained from the express terms of the will itself. Extrinsic evidence may also be considered to resolve a latent ambiguity in a will, i.e., an ambiguity that is not apparent from the language used in the will but arises because “some extrinsic fact or evidence creates the necessity for interpretation or a choice between two or more possible meanings, or if the words apply equally well to two or more different subjects or things.” Radzisewski v. Szymanczak, 8th Dist. No.
97795. 2012 WL 2150898. “Where there is a latent ambiguity appearing in a will, extrinsic evidence is admissible, not for the purpose of showing the testator’s intention, but to assist the court to better interpret that intention from the language used in the will.” Id.
Thus, “‘[w]here a term in a will is susceptible to various meanings, the [court] may consider the circumstances surrounding the drafting of the instrument, in order to arrive at a construction consistent with the overall intent of the testator so as to uphold all parts of the will.’” Sandy v. Mouhot, 438 N.E.2d 117 (1982), quoting Wills v. Union Savings & Trust, 433 N.E.2d 152 (1982). Where there is some doubt as to the meaning of the will the court may admit extrinsic evidence of the testator’s family situation, his business and financial circumstances, the nature and extent of his investments, the character and manner of operation of his business and the natural objects of his bounty. With such evidence the court is better able to see things as the testator saw them and to construe the words used in the will as he understood them and to give that construction which he intended. A court, however, cannot rewrite a will.
The trial court erred in its decision to award the farm to Charles Bogar but the farm equipment and machinery to the residual beneficiaries. The probate court based its decision in this case on the conclusion that this specific bequest to Appellant is ambiguous. While the phrase “the real estate located at 13300 Diagonal Road, Salem, Ohio together with all contents of said real estate” is not ambiguous on its face, it does appear that an examination of all of the property located at 13300 Diagonal Road on the date of Thomas’ death creates a latent ambiguity.
“Contents” are defined as “something that is contained.” www.dictionary.com. Appellant argues that the definition of “contents” is broader than the term “personal property.” While that is certainly correct, Appellant’s interpretation of the language in the bequest is strictly “geographical” in nature: all of the items physically located within the boundaries of testator’s real estate were bequeathed to Appellant. However, a strict application of this interpretation of “contents”
would actually limit the bequest based on the location of the property on the day of Thomas’ death. In other words, if any of the usual contents of the real estate, regardless of their practical use or value to the real estate, were at a repair shop or loaned to a third party, that property would not be included in the bequest and would appear to pass to the residual beneficiaries due to happenstance, rather than the intent of the testator.
The probate court’s interpretation of the words “contents of said real estate,” however, does not appear to address the intent of the testator. The court relies, instead, on whether the specific item has “increased value,” whether the item is capable of being titled in accordance with state law, and on whether these items “are typically found in a home environment.” Relying on his own definition, the court determined that automobiles and trucks found on the property were not “contents of said real estate” and also that pieces of farm equipment, presumably because they had significant value and were not “typically” found in a “home”
were also not “contents of said real estate,” despite the fact that the real estate in question has been operated as a farm.
Despite our analytical disagreement with the probate court, we recognize, and Appellant appears to concede, that automobiles, while they may be garaged at or parked on the real estate, may not necessarily be “contents” of that real estate by their very nature. While they are certainly personal property, it does strain the ordinary definition of “contents” to reach as far as automobiles. However, the question here is whether the testator intended these to be “contents of said real estate.” There appears to be no evidence in the record on this question, beyond the admission that they were owned by the testator at the time of his death.
On the other hand, trucks and farm equipment present a more difficult question. Appellant contends that trucks and farm equipment fall within the practical definition of “contents of said real estate,” because the real estate at issue in this case is a farm. However, neither party offered any evidence to establish whether the real estate is an operating farm, or whether the trucks and farm equipment are necessary to the function or maintenance of the real property. Evidence of this nature would certainly be pertinent to determining the intent of the testator in this regard. While we agree that trucks and farm equipment may fall within the practical interpretation of the phrase “all contents of said real estate,” particularly if the real estate is or was at decedent’s death a functioning farm, there is insufficient evidence in the record to conclude that the probate court erred in excluding them from the specific bequest. We again note, however, that the court’s reliance on the determination that these items of tangible personal property have a high value and are not usually found in a “home environment” does not meet the standard necessary to determine the testator’s intent.
Unlike a typical civil case, where the burden of proof is assigned to a specific party, and his or her failure to meet the burden of proof results in judgment against that party, the lack of evidence in this case requires remand. The probate court is solely responsible for interpreting the will in accordance with the testator’s intent. In this case, the question is whether vehicles and farm equipment are “contents of” the testator’s real estate. Because the focus in this matter appears to have been on the intrinsic value of this disputed property … rather than the intent of the testator, the matter must be remanded to the probate court for a new evidentiary hearing.
For the foregoing reasons, we find that the specific bequest to Appellant contains a latent ambiguity. We reverse the judgment entry of the probate court and remand this matter for the probate court to consider extrinsic evidence regarding the practical use of the trucks and farm equipment identified in the appraisal, whether the testator intended the automobiles to be “contents of said real estate” and any additional evidence that may reveal the intent of the testator.
CRITICAL THINKING:
As a critical thinker, you want to be able to identify strengths as well as weaknesses in arguments. What are the strengths and weaknesses in the court’s reasoning?
ETHICAL DECISION MAKING:
Compare the universalization and Golden Rule guidelines as they apply to the facts of this case. Which guideline best supports the differing perspectives on what should happen to Thomas’s assets?