. ^N L

IN THE SUPREME COURT OF OHIO

In the matter of:

Estate of Maxine DelorisStevens, Deceased

Jenna L. Stevens,

Appellee

V.

Dale R. Circle, Executor

Appellant

)))))))))))))))

Case No. 2012-1892

On appeal from the Champaign CountyCourt of Appeals, Second Appellate District

Court of Appeals Case No. 2012-CA-0001

APPELLANT-EXECUTOR'S AMENDED MEMORANDUM IN SUPPORT OFJURISDICTION

Attorneys for Appellant:

Daniel C. Harkins (0029750) (Counsel ofRecord)Mark D. DeCastro (0079505)HARKINS & ASSOCIATES333 North Limestone Street, Suite 203Post Office Box 1125Springfield, Ohio 45501-1125Telephone No.: (937) 324-8482Telecopier No.: (937) 324-8011dch a dharkins.comAttorneys for the Appellant Estate ofMaxine Deloris Stevens

Edward G. Bailey (0004749)BAILEY & BAILEY4 W. Main Street, Suite 428Springfield, Ohio 45502Telephone No.: (937) 323-6475Telecopier No.: (937) 323-6476Special Counsel for the Appellant Estate ofMaxine Deloris Stevens

Attorney for Appellee:

Sherrille D. Akin (0059841) (Counsel of

Record)George B. Limbert (0082241)Isaac, Brant, Ledman & Teetor, LLP250 E. Broad Street, 9"' FloorColumbus, Ohio 43215-3742Telephone No.: (614) 221-2121Telecopier No.: (614) 365-9516sakin@ isaacbrant.comAttorneys for Appellee Jenna L. Stevens

NOV 2- Pi zoltCLERK OF COURT

SUPRENIE C®URT OF OHIO

I

TABLE OF CONTENTS

EXPLANATION WHY THIS CASE IS A CASE OF PUBLIC OR GREATGENERAL INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

ARGUMENT IN SUPPORT OF PROPOSITION OF LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

1. A Beneficiary Who Collaterally Attacks a Testator's Will Becomes

Subject to the In Terrorem Provision Which the Testator

Incorporated into Her Will . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

CONCLUSION ............................... . .............................. 15

Exhibit

Entry of the Champaign County Probate Court (January 11, 2012) . . . . . . . . . . . . . . . . . . . . . . A

Final Entry of the Champaign County Court of Appeals (October 17, 2012) . . . . . . . . . . . . . . . B

Opinion of the Champaign County Court of Appeals (October 17, 2012) . . . . . . . . . . . . . . . . . C

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EXPLANATION WHY THIS CASE IS A CASEOF PUBLIC OR GREAT GENERAL INTEREST

The critical issue which is presented by this case is whether a valid in terrorem clause that

was incorporated into a testamentary will can be avoided through circumvention of long standing

and respected Ohio law.

Despite the findings of the Champaign County Probate Court (the "Probate Court") that

Appellee Jenna Stevens ("Jenna") had asserted objections which were proscribed by the in terrorem

clause that was part of the Last Will and Testament (the "Will") ofher grandmother, Maxine Deloris

Stevens (the "Decedent"), the Court of Appeals improperly engaged in a de novo review to excuse

Jenna's objections.

The recognition and enforcement of a testator's lawful intentions and the uniform

interpretation and enforcement of Ohio law are of public and great general importance.

Without the intervention of this Court, the decision of the Court of Appeals will render in

terrorem clauses ineffective in Ohio and will cause scarce judicial resources to be wasted by

disgruntled beneficiaries who can now avoid in terrorem clauses by engaging in a pleading practice

that is not authorized by the Revised Code.

STATEMENT OF THE CASE

The Decedent executed her Will under date of November 15, 2007. Item Two of the

Decedent's Will provided Dale R. Circle (hereinafter referred to in his individual capacity as

"Circle") with the option to purchase the Farmland. Item Two also provided that, should any party

challenge Item Two of the Will by filing either objections or complaints with the Probate Court, then

that party's interest under the Will would lapse and become null and void.

The Decedent died on November 25, 2010.

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Y

On December 29, 2010, the Probate Court admitted the Decedent's Will to probate and

appointed Dale R. Circle as the Executor of the Decedent's Estate (the "Executor").

On July 28, 2011, the Executor filed with the Probate Court the Executor's Notice of

Intention to Proceed with Administration of Estate (the "Notice of Intention"). The Executor advised

the Probate Court of his intention to proceed with the administration of the Decedent's Estate, as

required by the Decedent's Will. The Executor neither invoked the jurisdiction of, nor sought

instructions from, the Probate Court.

The Executor stated in the Notice of Intention that Jenna had informally raised objections

with the Executor about Item Two of the Decedent's Will. The Executor's Notice acknowledged

that Jenna's informal objections did not constitute, at that time, the type of objections which were

proscribed by the Decedent's in terrorem clause, because Jenna's objections had not yet been filed

with the Probate Court.

On August 4, 2011, the Probate Court filed its Entry which ordered the Executor to proceed

with the administration of the Estate.

On August 11, 2011, Jenna filed her Memorandum in Opposition (the "Memorandum in

Opposition") to object to the Probate Court's August 4, 2011 Entry. Contemporaneously, Jenna

requested the Probate Court to conduct a status conference about the transfer of the Farmland

pursuant to Item Two of the Decedent's Will.

By filing her Memorandum in Opposition to the Probate Court's August 4, 2011 Entry and

by requesting a status conference, Jenna invoked the jurisdiction, and sought the intervention, of the

Probate Court.

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On August 17, 2011, the Probate Court filed a Judgment Entry by which it intervened on

behalf of Jenna and withheld "any action on its August 4th Entry until it makes a further decision

based on [Jenna's August 11 Memorandum in Opposition]......

On September 6, 2011, the Probate Court conducted a status conference, at Jenna's request,

on her Memorandum in Opposition. The Court received arguments from counsel for both Jenna and

the Estate.

On September 16, 2011, the Probate Court filed its Judgment Entry through which the

Probate Court (i) vacated its August 4,2011 Entry; (ii) considered and rejected the arguments which

were asserted by Jenna in her Memorandum in Opposition; (iii) found that the Executor had

complied with the provisions of the Decedent's Will; and (iv) ordered "the executor [to] complete

the real estate transfer in accordance with Item Two of Decedent's Will and proceed accordingly

with further administration of the estate." See September 16, 2011 Judgment Entry at p. 3.

On October 17, 2011, Jenna filed with the Probate Court her Notice of Appeal from the

September 16, 2011 Judgment Entry in Champaign County Court of Appeals Case No. 2011-CA-

0026. The Notice of Appeal was filed to object to the fulfillment of Item Two.

On October 18, 2011, pursuant to R.C. 2113.54, Jenna filed her Application for Order of

Distribution (the "Application"). In her Application, Jenna requested that the Probate Court order

the distribution of the Decedent's personal property to her.

On October 20, 2011, the Executor filed his Memorandum in Opposition to the Application.

On October 26, 2011, Jenna filed her Reply in Support of her Application.

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In her Brief of Appellant that was filed in Court of Appeals Case No. 201 1-CA-0026, on

November 20, 2011, Jenna continued to assert her objections about Item Two of the Decedent's

Will. Jenna objected to the terms and conditions which the Decedent specified for the transfer of

her Farmland. Jenna challenged the value which the Decedent set for her Farmland. Jenna objected

to the time periods which the Decedent specified for the transfer of her Farmland.

On November 30, 2011, the Executor filed his Motion for Leave to File Supplemental

Pleading. The Executor advised the Probate Court that Jenna had challenged Item Two of the

Decedent's Will in her Brief that was filed with the Court of Appeals in Case No. 2011-CA-0026.

On January 11, 2012, the Probate Court denied Jenna's Application. In its January 11, 2012

Judgment Entry, the Probate Court found that both the Memorandum in Opposition which Jenna

filed with the Probate Court on August 11, 2011 and the Notice of Appeal which the Jenna filed with

the Probate Court on January 17, 2012 "constitute[d] the very challenge the testator contemplated

[in Item Two of her Will]." Entry at p. 2. The Probate Court held that Jenna's filings constituted

"a challenge of the validity of Item Two of the Will." Ibid. The Probate Court further found,

"[a]lthough the Court is sympathetic to [Jenna], in that this could lead to her not receiving certain

sentimental items of her grandmother, her grandmother's wishes are clear and the Court must act in

accordance with those wishes. For all the reasons above, the Court finds that pursuant to the

Decedent's Will, [Jenna] has challenged the validity of Item II and her interest in the Will has lapsed

and therefore, her Motion for an Order of Distribution is denied." Entry at pp. 2 - 3. A copy of the

Probate Court's January 11, 2012 Entry has been marked and attached as Exhibit A.

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On January 17, 2012, Jenna filed her Notice of Appeal of the Probate Court's January 11,

2012 decision. Jenna's second appeal (which is the matter that is now before this Court) was

assigned Case No. 2012-CA-0001.

On Apri127, 2012, the Court of Appeals affirmed the Probate Court's September 16, 2011

Judgment Entry and found that Circle, individually, was entitled to purchase the Decedent's

Farmland, pursuant to Item Two of the Decedent's Will. The Court's decision was reported as In

re: Estate of Stevens, 2a Dist. No. 2011-CA-0026, 2012-Ohio-1860.

On October 17, 2012, the Court of Appeals filed an Opinion and Entry which reversed the

Probate Court's January 11, 2012 Judgment Entry denying Jenna's Application. The Court of

Appeals found that Jenna's actions before the Probate Court did not invoke the Decedent's in

terrorem clause. Copies of the Court of Appeals' October 17, 2012 Opinion and Entry for Case No.

2012-CA-0001 have been marked and attached as Exhibits B and C, respectively.

On November 8, 2012, the Executor timely filed his Notice of Appeal about the October 17,

2012 Opinion and Entry of the Court of Appeals regarding Case No. 2012-CA-0001 and this

corresponding Memorandum in Support of Jurisdiction. The Clerk of the Supreme Court assigned

Case No. 2012-1892 to this matter. Both initial documents contained erroneous references to the

Clark County Court of Appeals, rather than the Champaign County Court of Appeals. The errors

were inadvertent.

On November 28, 2012, pursuant to Rule 8.7 of the Rules of Practice of the Ohio Supreme

Court, the Executor filed his Amended Notice of Appeal and corresponding Amended Memorandum

in Support of Jurisdiction.

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STATEMENT OF THE FACTS

The Decedent died on November 25, 2010.

At the time of Decedent's death, Jenna was Decedent's sole heir-at-law. The Decedent's

only child (who was Jenna's father) predeceased the Decedent. The relationship between the

Decedent and Jenna was strained.

In her Will, the Decedent provided her friend Circle with an interest in her Estate, subject to

his exercise of an Option which the Decedent defined in Item Two of her Will. Item Two of the Will

provided:

ITEM TWO: I direct my Executor to provide my friend, DALE CIRCLE,with the option to purchase the real estate which I may own at the time of my deaththat is then being used for agricultural purposes. The option to be extended by myExecutor will provide DALE CIRCLE with the opportunity of purchasing thefarmland for $3,000.00 per acre. My Executor shall give notice to DALE CIRCLEof this option within thirty (30) days of my Executor's appointment by the ProbateCourt. DALE CIRCLE must then exercise the option within the forty-five (45) dayperiod following the date on which notice is provided by my Executor. In the eventDALE CIRCLE should fail to provide written notice of his intention to exercise theoption provided by this ITEM TWO, within the forty-five (45) day period, thisITEM TWO and the option described herein shall lapse. Should DALE CIRCLEproceed in exercising the option, he may pay the purchase price either by tendering,in whole or in part, cash at closing or a note for the balance of the purchase price,provided the note requires (i) equal payments of principal and interest for up totwenty (20) years, (ii) bears the Applicable Federal Rate of interest and (iii) securedwith a mortgage on the land being sold. The note shall be negotiable and should beassigned to those individuals who will receive distributions under this Will.

Should any individual challenge the validity of this ITEM TWO by filingobiections or complaints with the Probate Court, then that individual 's interestunder this Will shall lapse and shall become null and void. [emphasis added]

On December 29, 2010, Circle filed with the Probate Court his election to acquire the

Decedent's Farmland, pursuant to Item Two of the Decedent's Will.

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On September 29, 2011, pursuant to Item Two of the Decedent's Will, and as required by the

Probate Court's September 16, 2011 Judgment Entry, the Executor completed the transfer of the

Decedent's Farmland by (i) recording a Fiduciary Deed and Mortgage with the Champaign County

Recorder, and (ii) assigning the Promissory Note and Mortgage to Security National Bank & Trust

Co. ("Security") as Trustee for the Decedent's Trust (collectively the "Transaction"). Security was

the residual beneficiary of the Decedent's Estate.l

Security has refused to support Jenna's objections and her subsequent appeals.

In her efforts to prevent the Executor from transferring the Decedent's Farmland pursuant

to Item Two of the Decedent's Will, Jenna filed objections with the Probate Court. Jenna's

pleadings constituted objections which violated the Decedent's in terrorem clause.

On page 1 of her Memorandum in Opposition that Jenna filed with the Probate Court, Jenna

stated that she "opposes any sale of property to [Circle] ...."

On page 2 of her Memorandum in Opposition, Jenna requested the Probate Court to (i)

"prohibit Mr. Circle from transferring any property of the Estate to himself and deny his request to

do so," and (ii) "order the farmland properry ... [to] be transferred in accordance with Item IV (sic)

of the Decedent's Last Will and Testament."

On page 6 of her Memorandum in Opposition, Jenna stated that she did "not concede that

Item Two of the Will constitutes an option."

'As part of her estate plan, the Decedent established an inter vivos trust with Security, asTrustee, pursuant to a Trust Agreement dated November 15, 2007. Under the Trust Agreement,Jenna will receive the net trust income and may receive discretionary principal distributions untilJenna attains the age of 45. In addition, Jenna will receive mandatory principal distributions whenshe attains the ages of 30, 40 and 45. In the event Jenna fails to attain the age of 45, the thenremaining trust property will be distributed to Circle, individually, after $15,000 in specificdistributions are made to a church and two other friends of the Decedent.

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On page 11 of the Memorandum in Opposition, Jenna stated "[The Decedent's] Will does

not constitute an option."

In the conclusion of her Memorandum, Jenna asked the Probate Court to "deny Mr. Circle's

request to transfer [the Farmland] to himself ...[and to order the] farmland property to pass in

accordance with Item Four [of the Decedent's Will] ..."(Memorandum at p. 13). The Decedent

had intended that her Farmland pass pursuant to Item Two of her Will.

On January 17, 2012, Jenna filed, through the Probate Court, her Notice of Appeal regarding

the Probate Court's ruling on Item Two of the Decedent's Will.

Jenna, through her filings with the Probate Court, violated the Decedent's in terrorem

provision.

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

1. A Beneficiary Who Collaterally Attacks a Testator's Will Becomes Subject to the In

Terrorem Provision Which the Testator Incorporated into Her Will.

The Probate Court's findings were based on established Ohio law which recognizes that "[a]

testator has the right to dispose of his own property in such manner, not repugnant to law, as he sees

fit, and his intentions ought to be carried out unless they contravene some positive rule of law or are

against public policy." Heinlein v. The Elyria Savings & Trust Co. (1945), 75 Ohio App. 353, 359

-360, 62 N.E. 2d 284, 288.

The in terrorem clause which the Decedent provided in her Will was valid, binding and

enforceable under Ohio law. In the syllabus which was published for Bradford v. Bradford (1869),

19 Ohio St. 546, the Ohio Supreme Court held, "[a] condition in a will whereby the testator excludes

any one of his heirs who `goes to law to break his will' from any part or share of his estate, is valid

and binding; and afiect will be given to it, as well in respect to bequests of personalty, as to devises

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.,

of real estate." In Bradford, William Bradford filed an action to contest and set aside the last will

and testament of John Bradford. In his will, John Bradford provided a $600.00 bequest to William.

John also provided in his will that "if any of my heirs ... goes to law to break this will,... I direct

that they shall have not part of my estate . . . . " The Ohio Supreme Court rejected William's claim

that the common law developed by both the English Courts of Equity and its Ecclesiastical Courts

prevented the application of John's in terrorem provision.

Until the Second Appellate District rendered its decision in the pending matter, the Courts

of Appeals have regularly followed the holding of Bradford by enforcing in terrorem provisions.

See Bender v. Bateman (1929), 33 Ohio App. 66, and Modie v. Andrews, 9th Dist. No. C.A. 21029,

2002-Ohio 5765.

The Decedent's Will was explicit. The Decedent directed in Item Two that Circle be

provided with "the option to purchase the real estate which [the Decedent] may own at the time of

[her] death that is then being used for agricultural purposes. ..." Item Two further provided that

"should any individual challenge the validity of this Item Two by filing objections or complaints

with the Probate Court, that individual's interest under the Will shall lapse and shall become null

and void."

The Probate Court properly found that the pleadings which Jenna filed on August 11, 2011

and January 17, 2012 with the Probate Court constituted objections which were proscribed by the

Decedent in Item Two of her Will. An objection is a reason or argument presented in opposition.

Merriam-Webster's Collegiate Dictionary 801 (10th ed. 1999). A protest against a determination by

the Court constitutes an objection. Ballentine's Law Dictionary 876 (3rd ed. 1969).

-9-

In her Memorandum, Jenna objected to the Probate Court's August 4, 2011 Entry regarding

Item Two of the Decedent's Will. Jenna specifically stated that she "opposes any sale of [the]

property [pursuant to Item Two of the Decedent's Will] ...." Jenna continued her objections by

demanding that the Decedent's Farmland pass pursuant to Item Four of the Decedent's Will, rather

than by Item Two of the Will, as contemplated by the Decedent.

In the Notice of Appeal which Jenna filed through the Probate Court on October 17, 2011,

Jenna continued her objections about Item Two. Jenna confirmed her objections in her Brief of

Appellant which she filed in Court of Appeals Case No. 2011-CA-0026.

In its January 11, 2012 Entry, the Probate Court correctly found that Jenna had asserted

objections with the Probate Court which violated the Decedent's in terrorem clause. The Probate

Court's findings that Jenna made objections in violation of the Decedent's in terrorem provision

were conclusive findings of fact and should have been followed by the Court of Appeals. In

reviewing a decision of the Trial Court, the Court of Appeals "cannot substitute [its] judgment for

the Trial Court's factual finding[s] . . . ." Chepp v. Chepb (2009), Second District Court of Appeals

Case No. 2008CA98, 2009 Ohio 6388 at ¶ 16. Here, the Court of Appeals engaged in a de novo

review and improperly substituted its judgment for the Probate Court's finding that Jenna had

violated the Decedent's in terrorem clause.

Although the Court of Appeals acknowledged in its Opinion that the Decedent's in terrorem

clause prohibited any individual from challenging or objecting to Item Two of her Will and that such

clauses were enforceable under Ohio law (see Opinion at ¶¶ 4 and 17), the Court of Appeals, relied

on a doctrine which was described in the dicta of the 9t" Appellate District's Opinion in Moskowitz

v. Federman (1943), 72 Ohio App. 149, 162 - 153, 51 N.E. 2d 48. The Court of Appeals stated "[i]n

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determining whether the in terrorem doctrine applies in a particular case, Courts must consider

`public policy, probable cause, good faith, and a variety of other matters ... in connection with the

facts' of the case." Opinion at ¶17 citing Moskowitz, supra at 163.

The 9r' District subsequently repudiated the doctrine described in the Moskowitz dicta in

Modie v. Andrews, 9t'' District Summit No. 21029, 2002 - Ohio - 5765. In Modie, the Court of

Appeals held:

After reviewing our decision in Moskowitz, we find that that case is inapposite to thecase at bar, and our language regardin thehe "modern trend" is simply dicta, which weare not inclined to follow. We agree with the court in Bender, when it reasoned thatfor a court to acknowledge "such an exception would in fact destroy the rule itself.Bender, 33 Ohio App. at 69. Therefore, we conclude that there is no aood faithexception to "no contest" clauses. [emphasis added]

The Modie Court differentiated between actions which are initiated by a beneficiary and

actions which required a beneficiary to respond because the action was initiated by a third party.

"Where a beneficiary has not initiated such an action, and has only defended herself by filing

pleadings, the "no contest" clause has not been invoked, and the beneficiary does not forfeit her

interest. See Moskowitz, 72 Ohio App. at 103-104; Kirkbridge, 155 Ohio St. 293 at 302, Modie at

p. 25.

In the instant matter, the Court of Appeals applied a repudiated doctrine and misconstrued

Kasapis v. High Point Furniture Co., Inc. (2006), 9`'' Dist. Summit Nos. CA 22758 and 22762, 2006

Ohio 255 and Kirkbridge v. Hickok (1951), 155 Ohio St. 293, 98 N.E. 2d 815, to engage in an

inappropriate de novo review to avoid the findings of the Probate Court and to find that Jenna

"sought clarification or construction of the Will's provisions. . ." See Opinion at ¶ 23.

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The Court of Appeals misconstrued the facts, and misapplied the holding, of Kasqpis.

Kasapis held that an action initiated by the executrix of an estate to obtain instructions from the

Summit County Probate Court did not constitute a challenge by the executrix of the decedent's will.

Ibid at p. 31. Gus A. Kasapis ("Gus") died testate on October 12, 1999. In his will, Gus nominated

his wife Evangeline Kasapis ("Evangeline") as the executrix of his estate and adopted an in terrorem

clause. The executrix filed an action with the Probate Court to ascertain (i) whether the decedent's

illegitimate children were to be included in the class of lineal descendants that was defined by the

decedent's will, and (ii) whether a corporation's failure to issue a stock certificate to the decedent

(the sole owner of the business) caused the enterprise to be characterized as a sole proprietorship

(whose ownership would be tangible property) rather than as a corporation (whose stock would be

intangible property). If the business was tangible property, the business would go to the surviving

spouse. If the business interest was intangible property, then the business interest would be

transferred to a trust. In Kasapis, the Probate Court held that the decedent did not differentiate, in

his will, between his legitimate and illegitimate children and found that both should be considered

his descendants under his will. The Probate Court found that the business was a corporation

because, in part, the business filed corporate tax returns for six consecutive years, and held that the

ownership interest was intangible property that should pass to the decedent's trust.

Given the contentious litigation among members of the Kasapis family about Gus' will, some

members sought to invoke the in terrorem clause against the executrix. The Court of Appeals held

that the executrix's request for instructions from the Probate Court about the definition of

descendants and the classification of property did not constitute a challenge to the decedent's will,

and thus, did not invoke its in terrorem clause.

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1m

In the instant matter, Jenna never sought instructions from the Probate Court. Jenna did not

file a will construction action. Rather, Jenna filed numerous pleadings which repeatedly asserted

her specific objections to Item Two of the Decedent's Will. Jenna sought to avoid Item Two of the

Decedent's Will. Jenna's pleadings were contrary to the expectations of the Decedent and violated

the in terrorem clause.

Jenna's objections were unequivocal. Jenna filed a "Memorandum in Opposition" [emphasis

added] on September 6, 2011. Jenna continued her objections through her unsuccessful appeal in

Case No. 2011-CA-0026. Jenna demanded that the Farmland be transferred pursuant to Item Four

of the Will, rather than pursuant to Item Two, as the Decedent's expected.

In Kirkbridge, the Court held that an action to ascertain whether a statute invalidated a

bequest did not trigger an in terrorem clause. Arthur Hickok died within five months after executing

his last will and testament. Item XII of the Hickok will provided a trust under which its income

would be distributed to his family for twenty years. After the twenty year period, the Hickok trust

property was to be distributed to various charities. At the time of Hickok's death, Section 10504-5

of the then Ohio General Code provided that charitable bequests were invalid when they were stated

in wills which were executed within one year of a testator's death. The Hickok executors initiated

an action to ascertain whether Section 10504-5 invalidated the Hickok charitable bequests. The

designated charities sought to terminate the executors' personal interest under the Hickok will. The

Court of Appeals, reasoning that the application of the statute, rather than any action by the

beneficiaries, invalidated the charitable bequests, found that the beneficiaries did not violate the in

terrorem clause by seeking the Court's ruling about the applicability of Section 10504-5.

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1

The instant case is distinguishable from both Kasapis or Kirkbridge. Jenna neither filed a

will construction action nor took any other action permitted under the Ohio Revised Code to seek

the construction or clarification of the Decedent's Will. Jenna attacked Item Two of the Decedent's

Will by filing various objections with the Probate Court. Jenna filed a "Memorandum in

Opposition" to defeat the provisions of Item Two of the Decedent's Will. As the Probate Court

correctly found, Jenna's Memorandum in Opposition and her subsequent appeal "constituted the very

challenge the testator contemplated" included the in terrorem clause of the Decedent's Will. See

Probate Court's April 11, 2012 decision.

The Court of Appeals' determination that Jenna's actions constituted a request for

construction of the Decedent's Will was not supported by either the Record or applicable law. Ohio

law requires will construction actions to be brought in compliance with R.C. 2107.46. No will

construction action was initiated by any party. Consequently, Jenna's objections cannot be deemed

a request for construction of the Will's provision.

The decision of the Court of Appeals sanctions the actions by Jenna and other disgruntled

beneficiaries to collaterally attack valid testamentary wills to avoid valid in terrorem clauses. The

Opinion creates a path by which a beneficiary may challenge a testamentary will outside legislatively

defined procedures and which circumvents a testator's valid in terrorem clause.

The facts are clear: Jenna filed objections with the Probate Court. The law is firm: the

Decedent's in terrorem provision (proscribing Jenna's objections) should be enforced.

The Court of Appeals disregarded the applicable facts and established law to defeat the

Decedent's right to dispose of her own property through her Will.

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CONCLUSION

For the reasons discussed herein, the Executor respectfully requests this Court to find that

this case involves matters of public and great general interest, exercise jurisdiction over this case,

and reverse the Court of Appeals, so that the public and great general interest of protecting a

testator's right to dispose of her property remain properly respected and protected.

Respectfully submitted,

& ASSOCMTES

nie C. Harkins (Counsel of e^Ohio Atty. . o. 9750

DeCastroOhio Atty. Reg. No. 0079505333 North Limestone Street, Suite 203Post Office Box 1125Springfield, Ohio 45501-1125Telephone No.: (937) 324-8482Telecopier No.: (937) 324-8011dchgdharkins.comAttorneys for the Appellant Estate of MaxineDeloris Stevens

BAILEY & BAILEY

elo a

^---- 1

Edward G. BaileyOhio Atty. Reg. No. 00047494 W. Main Street, Suite 428Springfield, Ohio 45502Telephone No.: (937) 323-6475Telecopier No.: (937) 323-6476

Special Counsel for the Appellant Estate ofMaxine Deloris Stevens

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CERTIFICATE OF SERVICE

i--I certify that on the _day of November, 2012, a copy of the foregoing document was sent

by first class, U.S. Mail, postage pre-paid, to Counsel for Appellee, Sherrille D. Akin, Esq., Isaac,Brant, Ledman & Teetor, LLP, 250 E. Broad Street, Suite 900, Columbus, Ohio 43215-3742.

Respectfully submitted,

HARKINS & A^^CIATE.^^ __.,..._..--

Mark D. DeCastroOhio Atty, Reg. No. 0079505Attorneys for Appellant Estate of MaxineDeloris Stevens

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^•

COURT OF COMMON PLEAS, CHAMPAIGN COUNTY, OHIODOMESTIC RELATIONS - JUVENILE - PROBATE

IN THE MATTER OF

THE ESTATE OF

CHAMPAIGN CO., OHIOCOURT OF COMMON PL O• 2010 ES 212

DOMESTIC RELAT ►CNS - JUVENILE - PRO^ ^Nn^

`

JAN :L 1 2012

MAXINE DELORIS STEVENSErrA. GILRFRT, JUCICIOGMENT ENTRYLORI L. REISINGER, JUDGE

EXHIBIT

A

On October 20, 2011 George Limbert, Attorney for Jenna Stevens

filed an Application by Beneficiary/Legatee for Order of Distribution. Also, on

October 20, 2011 Daniel Harkins, Attorney for Dale Circle, Executor, filed a

Memorandum in Opposition to Application by Jenna Stevens for distribution of

decedent's personal property, requesting a hearing on the matter. On October

27, 2011 George Limbert, Attorney for Jenna Stevens filed a Reply in Support of

Application by Beneficiary/Legatee for Order of Distribution. Subsequently on

November 30, 2011 Daniel Harkins, Attorney for Executor filed a Motion for

Leave to File Supplemental Pleadings and on December 21, 2011, George

Limbert filed a Memorandum in Opposition to Executor's Motion for Leave to File

Supplemental Pleadings.

The Court grants Attorney Harkins Motion for Leave to File

Supplemental Pleading filed on November 30, 2011.

..^ ^+a....... w c I.., I n n..+ ,.^ a... dc.,+. w. . ^ 1... ,perjol

1JCIIIIQ OtCVCIIj IId, Ii1CU a IVIUIiUII IUI UIaUlUutiol ol IICI al

property. Dale Circle argues that said distribution should not be made because

her interest in the estate has lapsed due to her objecting to the real estate

provision of Item Two of the Will through both her objections in her Memorandum

in Opposition to Executor's Notice of Intention to Proceed and her aplpsaN/Of9(o, OHIOCOURT OF COMMON PLEAS

Court's decision on Item Two of the Will filed September 16, 20DI^STICRELATIONS ,JUUENILE PROBATEDIVISIDN

Jenna Stevens argues she has not objected to Item Twoa just ^h?^012

13RE7TA. GILE3 R7; JUDGEtime limits, nor has she filed a will contest. Therefore, she has n^qfifqigg^^-^ JUDGE

in terrorem clause of decedents will, her bequest has not lapsed and the

distribution in Item Three of decedents Will should be ordered to her.

Decedent's Will is clear. "Should any individual challenge the

validity of this ITEM TWO by filing objections or complaints with the Probate

Court, then that individual's interest under this Will shall lapse and shall become

null and void."

First, the Court does not believe a Will Contest is necessary to

constitute a challenge of the validity of Item II and therefore that argument is

unconvincing. Second, the Court believes Ms. Stevens challenge to and

interpretation of the time limits of Item Two in both her Memorandum in

Opposition and her subsequent appeal constitute the very challenge the testator

contemplated.

Therefore, the Court finds that Jenna Stevens arguments in her

Memorandum in Opposition to Executor's Notice of Intention to Proceed and the

appeal of the Court's subsequent decision on that issue is clearly a challenge of

the validity of Item Two of the Will.

Although the Court is sympathetic to her, in that this could lead to

her not receiving certain sentimental items of her grandmother, her

i ..

e ry ^

grandmother's wishes are clear and the Court must act in accordance with those

wishes.

For all the above reasons, the Court finds that pursuant to the

Decedent's will Ms. Stevens has challenged the validity of Item II and her interest

in the Will has lapsed and therefore, her Motion for an Orde^^^^^^dPLEAs

denied.RELATIONS - JIfVENILE - PROHATE DIVISION

.JAN 11 2012

So Ordered.BRETT A. GILCiEIIT, JUDGE

This is a final appealable order entered into tllr^r6bJWhS#N6-66rcf(WE

the date stamped "FILED" by the clerk. The clerk shall forward copies of this

Order to all parties or their attorneys of record at their last mailing address

_----

Brett A. Gilbe , Judge

cc: Daniel C. HarkinsEdward BaileySherrille D. AkinGeorge B. LimbertS ecu ri-ty fel ation a l' B-an k

^

I B

IN THE COURT OF APPEALS FOR CHAMPAIGN COUNTY, OHIO

IN THE MATTER OF THE ESTATEOF MAXINE STEVENS

C.A. CASE NO. 2012 CA 1

F : T.C. NO. 10ES212

CHAMPA^ NCO^ :rY OHIO FINAL ENTRY

ocT 17 2012

CLERK oF (^RTF AppEALS

Pursuant to the opinion of this court rendered on the 12 t h day ofOc t obe r, 2012,

the judgment of the trial court is reversed, and the matter is remanded for further

proceedings consistent with this court's opinion.

Costs to be paid as stated in App.R. 24.

Pursuant to Ohio App.R. 30(A), it is hereby ordered that the Clerk of the Champaign

County Court of Appeals shall immediately serve notice of this judgment upon all parties and

make a note in the docket of the mailing.

MAS J. GRA residing

E. D NOVAN, Judge

ROELICH, Judge

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

Copies mailed to:

Sherrille D. AkinGeorge B. Limbert250 E. Broad Street, 9th FloorColumbus, Ohio 43215

Daniel C. HarkinsMark D. DeCastro333 N. Limestone Street, Suite 203P. O. Box 1125Springfield, Ohio 45501

Edward G. Bailey4 W. Main StreetSuite 428Springfield, Ohio 45502

Hon. Breft A. GilbertChampaign County Family Court200 N. Main Street, 3rd FloorUrbana, Ohio 43078

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

n

EXHIBIT

C

C.A. CASE NO. 2012 CA 1

T.C. NO. 10ES212

(Civil appeal from CommonPleas Court, Probate Division)

OPINION

Rendered on the 12th day of October , 2012.

SHERRILLE D. AKIN, Atty. Reg. No. 0059841 and GEORGE B. LIMBERT, Atty. Reg. No.0082241, 250 E. Broad Street, 9th Floor, Columbus, Ohio 43215

Attorneys for Jenna L. Stevens

DANIEL C. HARKINS, Atty. Reg. No. 0029750 and MARK D. DeCASTRO, Atty. Reg. No.0079505, 333 N. Limestone Street, Suite 203, P. O. Box 1125, Springfield, Ohio 45501

Attorneys for the Estate of Maxine Deloris Stevens

EDWARD G. BAILEY, Atty. Reg. No. 0004749, 4 W. Main Street, Suite 428, Springfield,Ohio 45502

Special Counsel for the Estate of Maxine Deloris Stevens

FROELICH, J.

IN THE COURT OF APPEALS FOR CHAMPAIGN COUNTY, OHIO

IN THE MATTER OF THE ESTATEOF MAXINE STEVENS

FILEDCHAMPAIGN COUNTY OHIO

OCT 17 2012

,:._? ^!?.^.^._0CLERK OF 6bURT OF APPEALS

THF. COURT OF APPEALS OF OIIFOSECOND i1PPELLATE DISTRICT

2

{¶ 1} Jenna L. Stevens appeals from a judgment of the Champaign County Court

of Common Pleas, Probate Division, which found that she had challenged the validity of

a portion of her grandmother's Will, which, by the terms of the Will itself, caused her

interest under the Will to " lapse and * * * become null and void."

M 2} For the following reasons, the judgment of the trial court will be reversed.

Facts and Procedural History

(1131 Maxine Stevens died in November 2010, and her Will was admitted to probate

one month later. According to the Will, all debts, expenses, and taxes were to be paid by

the estate. Dale Circle, Maxine's "friend and manager," was named executor, and he was

given the option to purchase Maxine's "real estate * * * then being used for agricultural

purposes" under enumerated conditions. Maxine's granddaughter, Jenna Stevens, whose

father (Maxine's son) had predeceased Maxine, was to receive all of Maxine's "tangible

personal property," and the remainder of the estate was placed in an unnamed trust

previously created by Maxine.'

{}( 4} With respect to the bequest to Circle, the Will provided:

ITEM TWO: I direct my Executor to provide my friend, DALE CIRCLE, with

the option to purchase the real estate which I may own at the time of my

death that is then being used for agricultural purposes. The option to be

extended by my Executor will provide DALE CIRCLE with the opportunity of

purchasing the farmland for $3,000.00 per acre. My Executor shall give

notice to DALE CIRCLE of this option within thirty (30) days of my Executor's

'For clarity, we will refer to the decedent as "Maxine" and to hergranddaughter, the appellant, as "Stevens..,

'rNE COURT OF APPEALS OF OHIO

SECOND APPELLArE DISTRICI'

3

appointment by the Probate Court. DALE CIRCLE must then exercise the

option within the forty-five (45) day period following the date on which notice

is provided by my Executor. In the event DALE CIRCLE should fail to provide

written notice of his intention to exercise the option provided by this ITEM

TWO, within the forty-five (45) day period, this ITEM TWO and the option

described shall lapse. Should DALE CIRCLE proceed in exercising the

option, he may pay the purchase price either by tendering, in whole or in

part, cash at closing or a note for the balance of the purchase price, provided

the note requires (i) equal payments of principal and interest for up to twenty

(20) years, (ii) bears the Applicable Federal Rate of interest and (iii) secured

with a mortgage on the land being sold. The note shall be negotiable and

should be assigned to those individuals who will receive distributions under

this Will.

Should any individual challenge the validity of this ITEM TWO by filing

objections or complaints with the Probate Court, then that individual's interest

under this Will shall lapse and shall become null and void.

(151 A prohibition against challenging a will or a term therein under the threat of

disinheritance, such as the one contained in Item Two of Maxine's Will, is known as an in

terrorem provision.

(16) On the day that the trial court admitted the Will to probate and appointed Circle

as executor, Circle filed an " Exercise of Ontinn to Pirch?se Farn;land," indicati^^g hisr

intention to exercise the option, his acceptance of the terms set forth in Maxine's Will, and

Tf-IE C:nURT OF APPEALS OF OHIOSF:C'OND APPEL.LArE DISTRIC7'

4

his intended method of payment.

{17} In May 2011, Circle filed the estate's Inventory and Appraisal, which included

Maxine's interest in three parcels of farmland, and the court approved the Inventory. In

June 2011, Circle filed an Application to Extend Administration of the estate, in which he

asserted that additional time would be required "to confirm the State's acceptance of the

Estate Tax Return and to affect the distribution of the Estate's assets," due, in part, to

concerns expressed by Stevens. The court does not appear to have ruled on this

application.

(181 On July 29, 2011, Circle filed a notice of his intention to proceed with the

administration of the estate, including his purchase of the farmland. This notice stated that

the three pieces of farmland listed in the Inventory consisted of a total of 242.5 acres, with

a total value of $1,048,679, or $4,324.45 per acre. Because the terms of the Will permitted

Circle to purchase the farmland for $3,000 per acre, he intended to treat the $321,179

difference "between the farmland's appraised value and the $3,000.00 per acre value

which was specified by" Maxine as a bequest to him. Circle requested that the court

approve this transaction, if its approval was required. On August 4, 2011, the court issued

a judgment indicating that its approval of this action was not required and that Circle should

proceed accordingly.

(19) One week after the trial court's judgment instructing Circle to proceed with the

sale, Stevens filed a Memorandum in Opposition to Executor's Notice of Intention to

Proceed with Administration of Estate. In this Memorandum, Stevens argued that 1)

Circle's interest in the farmland had lapsed because Circle had not closed on the property

THE COURT OF APPEALS OF OHIOSFCOND APPELLATE DISTRICT

within 45 days or, alternately, within a reasonable time, 2) Circle's "Exercise of Option to

Purchase Farmland" did not satisfy the statute of frauds, and 3) Circle had not complied

with R.C. 2109.44 in that he did not obtain court approval for the transaction.2 Stevens

also asserted that she did not violate the in terrorem clause of her grandmother's Will by

insisting that the Executor (Circle) strictly comply with the terms of the Will.

(1110) Based on additional motions from the parties and Circle's desire to fully

respond to Stevens's arguments, the trial court scheduled a status conference and vacated

its prior judgment approving the transfer of the agricultural property.

{¶ 11} Upon further consideration, the trial court concluded that the Will required

only that Circle give written notice of his intention to exercise the option within 45 days; the

Will did not require that the sale be completed within that time. In the absence of a stated

time period, the court concluded that Circle was required to complete the sale within "a

reasonable time." Considering the nature of large real estate transactions, the time usually

required to complete the administration of an estate, and Circle's willingness to complete

the transaction as of July 2011 (seven months after the Will was admitted to probate), the

court concluded that Circle had acted within a reasonable time and had complied with the

provisions of Item Two of Maxine's Will. It therefore authorized Circle to complete the

transfer of the real estate. Stevens appealed from the trial court's judgment.

(1112) On appeal, Stevens again argued that 1) the trial court erred in allowing

2 R.C. 21^v9.44 provides that fiduciaries °shall not buy from or seil tothemselves" nor have any dealing with an estate in their individual capacities,except with approval of the probate court and subject to other enumeratedrequirements.

TI-lL• COURT OF APPF.AI-S OF 01110SECOND APPFLLATG DISTRICT

6

Circle to purchase the property without approval of the court, as required by R.C. 2109.44,

2) that the court erred in concluding that Item Two did not require completion of the safe

within 45 days and, in the alternative, in concluding that the sale was completed within a

reasonable time, 3) that Circle's attempt to exercise the option set forth in Item Two did not

comply with the statute of frauds, and 4) that Circle did not timely exercise the option to

purchase. We rejected all of these arguments. In re Estate of Maxine Stevens, 2d Dist.

Champaign No. 2011 CA 26, 2012-Ohio-1860.

{7( 13} While Stevens's appeal was pending, she filed in the trial court an

Application by Beneficiary/Legatee for Order of Distribution, seeking distribution of

Maxine's tangible personal property. In his capacity as executor, Circle opposed the

application, asserting that Stevens had forfeited her interest under the Will by challenging

Item Two in prior court proceedings. In response, Stevens claimed that she only sought

"enforcement of Item Two" and that her filing could "in no way be construed as a challenge

to the validity of Item Two" of the Will.

(114} The trial court did not conduct a hearing, but ruled on Stevens's Motion for

an Order of Distribution based on the argument's raised in the parties' filings. The trial

court concluded:

Decedent's Will is clear. "Should any individual challenge the validity

of this ITEM TWO by filing objections or complaints with the Probate Court,

then that individual's interest under this Will shall lapse and shall become

null and void.

First, the Court does not believe a Will Contest is necessary to

'rIIE COIJRT OF APPEALS OF OH (OSECOND APPELLArE DISTRICT

7

constitute a challenge of the validity of Item II [sic] and therefore that

argument is unconvincing. Second, the Court believes Ms. Stevens[']

challenge to and interpretation of the time limits of Item Two in both her

Memorandum in Opposition and her subsequent appeal constitute the very

challenge the testator contemplated.

Therefore, the Court finds that Jenna Stevens['] arguments in her

Memorandum in Opposition to Executor's Notice of Intention to Proceed and

the appeal of the Court's subsequent decision on that issue is clearly a

challenge to the. validity of Item Two of the Will.

Although the court is sympathetic to her, in that this could lead to her not

receiving certain sentimental items of her grandmother, her grandmother's wishes

are clear and the Court must act in accordance with those wishes.

For all the above reasons, the Court finds that pursuant to the

Decedent's will Ms. Stevens has challenged the validity of Item II and her

interest in the Will has lapsed and therefore, her Motion for an Order of

Distribution is denled.

(115) Stevens appeals from the trial court's judgment, raising one assignment of

error, which she frames as a question:

"Whether the trial court erred as a matter of fact and law when it ruled

that the filing of a Memorandum in Opposition to the Executor's Notice

of Intention to Proceed, participation in the resulting will construction

action, and subsequent Appeal filed as Case No. 2011 CA 00026 by

TFIE COU12T OF APPEALS OF OHIOSECOND AI'1'F.LLATE DISTRICT

. f (1. ..^. . .. . . . . . . ^ ^ . . . . . . .. . .. . . .. . . . .. . . . .

8

Jenna Stevens constitutes a challenge to the validity of Item Two of the

Decedent's Will sufficient to invoke the provisions of an in terrorem

claim in the Decedent's Will to lapse Jenna Stevens' individual interest

under the Will?"

(116) Stevens advances numerous arguments in support of her claim that the trial

court erred in concluding that her actions invoked the in terrorem provision of her

grandmother's Will.

{I 17} The "in terrorem" doctrine originated centuries ago in England and has

served different purposes over the years; under the modern American doctrine, however,

it applies to "no contest" provisions in wills. Moskowitz v. Federman, 72 Ohio App. 149,

162-163, 51 N.E.2d 48 (9th Dist. 1943). The general purpose of an in terrorem clause is

to deny or limit the inheritance of a named legatee or devisee if that person "shall make

any effort or attempt to break, change or set aside the will or any part thereof." Riber v.

Peters, 12th Dist. Fayette Nos. 81-CA-27 and 81-CA-28, 1982 WL 3247, *3 (Oct. 27,

1982), citing Kirkbridge v. Hickok, 155 Ohio St. 293, 294-295, 98 N.E.2d 815 (1951). In

determining whether the in terrorem doctrine applies in a particular case, courts must

consider "public policy, probable cause, good faith, and a variety of other matters *** in

connection with the facts" of the case. Moskowitz at 163.

{^ 18i T he question presented to the trial court and on appeal is whether Stevens

"challenged the validity" of the Will or of Item Two, or merely sought clarification of certain

provisions therein, when she filed a memorandum in opposition to Circle's motion to

proceed with the sale and then appealed the court's decision. This is a question of law,

THE COURT OF APPEALS OF OFIbSLCOND APPGLLATE DISTRICT

2 1 4

9

which we review de novo. Modie v. Andrews, 9th Dist. Summit No. 21029, 2002-Ohio-

5765, ¶ 10.

(119) Stevens points out that she did not file a will contest action, as allowed by

R.C. 2107.71 et seq., and this fact is undisputed. However, the in terrorem clause of

Maxine's Will was not limited to will contests; it forbade "challenge[s]" to the validity of Item

Two "by filing objections or complaints with the Probate Court." These terms are more

broad than a statutory "will contest" and, because they are not terms of art, they are subject

to the court's interpretation. Thus, the fact that Stevens did not file a statutory will contest

is not dispositive of whether she "challenged" Item Two.

(1201 Stevens categorizes her actions in this case as "a request for construction"

of the Will, and she emphasizes that Circle "commenced the action which led to the

probate court's Entry construing Item Two." Although Stevens construes Circle's Notice

of Intention to Proceed with Administration of the Estate as a request by Circle for

interpretation of Item Two, in which she merely participated secondarily as a beneficiary,

this characterization is inaccurate. Circle stated that the "purpose of the Notice [was] to

provide transparency during the continued administration of the Estate." He did not seek

interpretation of any of Item Two's provisions. Circle requested approval to proceed with

the sale ifsuch approval were required, but this request did not require interpretation of the

Will's provisions. It was Stevens's Memorandum in Opposition to Circle's notice that

questioned, in the first instance, whether he had compiied with the specific provisions of

Item Two, such as the correctness of the manner in which he attempted to exercise his

option and the time in which the sale was required to be completed.

TEiE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

10

{1 21} Citing various cases, Stevens also contends that "actions to obtain

interpretation" or a "request for construction" do not challenge the legitimacy of a will and

therefore do not invoke an in terrorem clause. We agree with the general premise

represented by these cases that an in terrorem clause does not place an executor's

conduct beyond the oversight of the probate court and that every request by a beneficiary

for involvement of the probate court does not constitute a challenge to a will. Therefore,

we must determine whether Stevens' filings in this case could reasonably be construed as

a request for interpretation, clarification, or construction of the Will's provisions, or if they

challenged the validity of the Will itself in such a way as to invoke the in terrorem clause.

(122) Stevens relies on Kasapis v. High Point Fumiture Co., Inc., 9th Dist. Summit

Nos. CA 22758 and 22762, 2006-Ohio-255, in which beneficiaries requested clarification

from the court as to whether closely held stock should be categorized as a tangible

property or an intangible one, because such properties were treated differently under the

Will. She also cites Modie, 9th Dist. Summit No. 21029, 2002-Ohio-5765, in which a

beneficiary's filing of exceptions to an inventory was distinguished from a challenge to the

validity of the Will, and Kirkbride v. Hickok, 155 Ohio St. 293, 98 N.E.2d 815 (1951), in

which beneficiaries sought clarification from the court when a statute related to charitable

bequests potentially invalidated some charitable bequests made under the Will. These

cases demonstrate that there are situations in which a beneficiary can legitimately seek

clarification of a Will's provisions or request that the court review an executor's conduct

without violating an in terrorem clause.

(1231 The trial court implicitly concluded that Stevens sought to prevent the

'rllE COURT OF Af'I'EALS OF OI-IfOSECOND API'ELLAT'E D1SrRICT

fa (R :.o

11

distribution of assets provided for in her grandmother's Will, that the language of Item Two

was "clear," and that Stevens's claimed "confusion" over the specific terms (with which she

claimed Circle had failed to compfy) was, in fact, an attempt to undermine the Will. In our

view, however, Stevens's request that the trial court determine whether the timing of and

manner in which Circle exercised the option to purchase complied with the provisions of

the Will sought clarification or construction of the Will's provisions, and was

indistinguishable from the types of clarifications sought in Kasapis and Kirkbride. The trial

court erred in concluding that, by her actions, Stevens sought to challenge "the validity of'

the Will or to prohibit Circle from exercising his right under the Will to purchase Maxine's

farmland; rather, she sought only to ensure that Circle's actions complied with Maxine's

directions.

Conclusion

{124} The trial court erred in concluding that Stevens's actions violated the in

terrorem clause in the Will.

(125) The assignment of error is sustained.

{125} The judgment of the trial court will be reversed, and the matter remanded

for further proceedings.

GRADY, P.J. and DONOVAN. J., concur.

Copies mailed to:

Sherrille D. Akin

George B. Limbert

IHE C'OURT OF APPEALS OF 01110SECOND APPE LL 1TE DISTRICT