Hageman v. Cleveland Trust Co.

Per Curiam. This action concerns the 1969 trust agreement. If plaintiff’s success or failure on the merits of this case could not affect his status as “virtually disinherited,” then his interest would be insufficient to maintain the action (State, ex rel. Dallman, v. Court of Common Pleas [1973], 35 Ohio St. 2d 176), and the trial court’s dismissal of his complaint is wholly proper. Admittedly, plaintiff has no such interest if the trust, in fact, is valid, so we need not consider or decide that question. Thus, we direct our inquiry to the significance of the trust agreement, even if it failed to effectuate a trust. Appellants assert that the existence of the trust agreement document at the time of the will’s execution and the will’s reference to the agreement, incorporates the document into the will pursuant to R. O. 2107.05.1 The subject trust agreement is certainly a document within the terms of that statute, but plaintiff argues that the decedent’s intent to pass property by will to a trustee of a purported inter vivos trust, so that the residuary estate would “pour-over” into the trust, requires that R. C. 2107.63,2 rather than R. C. 2107.05, “govern” the matter. [181] Plaintiff’s proposition fails in two respects. First, decedent exhibited no intent to plan ber estate pursuant to any particular statute, but to provide specific monetary bequests to a hospital, in which she was receiving care, and to her family church, lifetime payments and a free lifetime residence for the health, support and enjoyment of a close friend and companion, a lifetime residence for her brother (the plaintiff), the care of her books, and, primarily, for perpetual financial support to the free public or educational library in Lorain County designated as the recipient of these books. Secondly, R. C. 2107.63 allows only for pour-overs to a “trustee of a trust,” a fact which is contrary to the basis upon which plaintiff’s action rests: that there is no trust. Plaintiff would have us hold that the survival of decedent’s estate plan is irrevocably dependent upon its compliance with the specific statutory scheme whereunder it was designedly drafted. We reject such result, not only for its arbitrariness, but that it would serve also to decrease the quantity and stringency of statutory tests a document could conceivably undergo prior to becoming declared legally valid. We believe that this case is best stated in 1 Restatement of Trusts 2d 134, Section 54, Comment †, which reads, in part: “If no property was included in the purported inter [182] vivos trust, prior to the testator’s death, the disposition by will cannot be upheld on the ground of resorting to facts of independent significance, since no trust in fact existed prior to the testator’s death. The disposition by will can be upheld on the ground of incorporation by reference if, but only if, the requirements of that doctrine are complied with. * * *” (Emphasis added.) The first principle illustrates plaintiff’s argument concerning R. C. 2107.63, and the second principle, appellants’ argument. Both are accurate statements of law. Both are not necessarily mutually exclusive, however, and this court holds that even if a valid trust were not established by decedent’s trust agreement, the trust agreement document is incorporated by reference into the will, pursuant to R. C. 2107.05 and the second principle of Comment f, supra. In that event, plaintiff cannot improve his status by maintaining this action, and, accordingly, it was properly dismissed. Therefore, the judgment of the Court of Appeals, reversing that dismissal, must be reversed. Judgment reversed. O’Neill, C. J., Corrigan, Stern, Celebrezze and W. Brown, JJ., concur. Herbert and P. Brown, JJ., dissent. Footnotes [1] R. C. 2107.05 reads: “An existing document, book, record, or memorandum may be incorporated in a will by reference, if referred to as being in existence at the time the will is executed. Such document, book, record, or memorandum shall be deposited in the Probate Court when the will is probated or within thirty days thereafter, unless the court grants an extension of time for good cause shown. * * *” [2] R. C. 2107.63 reads: “A testator may by will devise, bequeath, or appoint real or per [181] sonal property, or any interest in such property, to a trustee of a trust which is evidenced by a written instrument executed by the testator or any other person either before or on the same date of the execution of such will and which is identified in such will. “The property or interest so devised, bequeathed, or appointed to such trustee shall be added to and become a part of the trust estate, shall be subject to the jurisdiction of the court having jurisdiction of such trust, and shall be administered in accordance with the terms and provisions of the instrument creating such trust, including, unless the will specifically provides otherwise, any amendments or modifications thereof made in writing before, concurrently with, or after the making of the will and prior to the death of the testator. The termination of such trust, or its entire revocation prior to the testator’s death, shall invalidate such devise, bequest, or appointment to such trust.”