Appendix B — Havighurst v. First National Bank of Southwestern Ohio

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COURT OF COMMON PLEAS

PROBATE DIVISION

BUTLER COUNTY, OHIO

FILED

94 DEC 28 AM 11:51

BUTLER COUNTY

PROBATE COURT

JUDGE STEPHEN W. POWELL

First Nat'l. Bank of SWO, : CASE NO. 94-0175

Pl.

-vs- CASE SCHEDULING

Miami University et al., ORDER

Def. _ Judge Powell

1. This case is fixed for benchAju trial

9/5/95 at 9:00 A.M.; for

pretrial/settlement conference on

at -M.; for trial setting and

consideration for referral to Alternate

Dispute Resolution on at M.

2. All discovery will be completed by

4/3/95, except as provided otherwise by

Court order. All Plaintiff's experts

must be identified by 2/1/95, with

discovery of expert testimony and

opinion to be completed by . All

Defendant's experts must be identified

by 2/1/95 with discovery of expert

testimony and opinions to be completed

by

3. All motions for summary judgment and

motions to dismiss will be filed by

4. Alternative Dispute Resolution;

4

%

Mi

be completed by with discovery

completed by

5. A joint pretrial statement shall be

provided to the Court by the pretrial.

6. Jury Instructions/Trial brief must be

submitted by the day before trial.

7. Other: Motions to Strike filed by

Jan. 16, 1995, Response due 2/1/95.

Plaintiff's response 2/8/95. Court's

Ruling due 2/15/95.

Failure to comply with this order, the

Rules of Civil Procedure, or the Local

Rules of Practice may result in the

imposition of sanctions by the Court.

SO ORDERED /s/Stephen W. Powell

32-a

IN THE COURT OF COMMON PLEAS

PROBATE DIVISION

BUTLER COUNTY, OHIO

THE FIRST NATIONAL BANK * CASE NO. 94-0175

OF SOUTHWESTERN OHIO,

EXECUTOR OF THE ESTATE *

OF WALTER E. HAVIGHURST Judge

* Randy Rogers

PLAINTIFF

vs. *

OPINION AND ENTRY

MIAMI UNIVERSITY, ET AL.* OVERRULING

DEMANDS FOR JURY

DEFENDANTS *

This matter came before the Court on

July 12, 1995, for argument concerning

Plaintiff's Motion to Strike or Otherwise

Dismiss Jury Demand of Alan W. Havighurst

and Douglas A. Havighurst filed by

Plaintiff on January 17, 1995, and then

again on August 22, 1995.

Revised Code Section 2101.31 provides:

"All questions of fact shall be

determined by the probate judge,

unless he orders them tried by a

jury, or referred, as provided in

sections 2101.06 and 2101.07, and

section 2315.26 to 2315.37,

inclusive."

ee geen Lee 5

3

s

No party to a declaratory judgment action

instituted in the Probate Court has any

constitutional or absolute statutory right

to trial by jury. Renee v. Sanders (1953),

160 Ohio St. 369, 116 N.E.2d 420.

Counsel for the Defendants/Counter-

Claimants Alan W. Havighurst and Douglas

A. Havighurst urged the Court in their

Memorandum filed on January 31, 1995 and

then again during the hearing which took

place on July 12, 1995, to delay its ruling

on this issue until “additional filings

submitted to the Court, discovery, and the

orderly movement toward an established date

for trial will give the Court better

perspective on the myriad issues in this

case." Discovery has now been completed

and this case is set for trial September 5,

1995.

The pleadings in the case sub judice

raise issues of interpretation and/or

construction of the terms of a will which

has provisions seeking to establish a

charitable trust. The Supreme Court of

Ohio has previously ruled in Sessions v.

Skelton (1955), 163 Ohio St. 409, and in

Gearhart et al v. Richardson (1924)

109 O S 418, that such issues are primarily

equitable in nature. The parties in this

case have also interjected the doctrines of

cy pres and deviation.

This Court understands that it has the

right and power to grant the demands for

jury. However, given the nature of the

issues presented in this case, in the

exercise of this Court's discretion, this

Court does not deem it wise and proper to

do so. |

|

IT IS THEREFORE ORDERED that the Jury

Demands of the Defendant/Counterclaimants

Alan W. Havighurst and Douglas A.

Havighurst are denied. Plaintiff's Motion

to Strike or Otherwise Dismiss Jury Demand

is granted.

/s/ Randy T. Rogers, Judge

Filed August 24, 1995

35-a

IN THE COURT OF COMMON PLEAS

PROBATE DIVISION

BUTLER COUNTY, OHIO

THE FIRST NATIONAL BANK * CASE NO. 94-0175

OF SOUTHWESTERN OHIO,

EXECUTOR OF THE ESTATE *

OF WALTER E. HAVIGHURST Judge

* Randy Rogers

PLAINTIFF

vs. *

OPINION AND ENTRY

MIAMI UNIVERSITY, ET AL.* OVERRULING MOTION

FOR SUMMARY

DEFENDANTS * JUDGMENT FILED BY

PLAINTIFF, FIRST

NATIONAL BANK OF

SOUTHWESTERN OHIO

This matter came before the Court on

July 12, 1995, for argument concerning the

Motions for Summary Judgment filed by the

Plaintiff. The Court having reviewed the

pleadings, the memoranda and affidavits and

other documents filed in support and in

opposition to said Motion, and having

reviewed the authorities cited therein and

being otherwise advised finds that said

Motion should be overruled at this time.

Summary judgment shall be granted if:

"no genuine issue of material fact remains

to be litigated; (2) the moving party is

entitled to judgment as a matter of law;

and (3) the evidence demonstrates that

reasonable minds can come to but one

conclusion, and that conclusion is adverse

to the party opposing the motion." Civ. R.

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56; Temple v. Wean United, Inc. (1977), 50

Ohio St. 2d 317, 327, 364 N.E.2d 267, 274;

Davis v. Loopco Industries, Inc. (1993), 66

Ohio St.3d 64, 609 N.E.2d 1093, 1097.

In First National Bank of Cincinnati

v. Devlin, 63 Ohio App.3d 708, 580 N.E.2d

[sic:page number omitted] (1989), the

12™ District Court of Appeals of Ohio

reversed a trial court ruling granting

summary judgment to three hospices selected

by the executor of an estate to receive the

residue of the estate. In Devlin, supra,

the decedent's will provided that the

residue of decedent's estate be distributed

by decedent's executor for "the benefit of

hospices in small towns excluding Lebanon,

Ohio devoted primarily to the care of

patients terminally ill with chronic

obstructive pulmonary disease particularly

emphysema, selected by my executor." An

action seeking construction of the

decedent's will was filed by decedent's

executor, First National Bank of

Cincinnati, alleging that it was in doubt

as to the true construction of the will and

could not proceed without the direction of

the court. Thereafter a number of hospices

intervened in the action. While the action

as pending the executor, after reviewing a

substantial volume of information, chose

three hospices that most closely met the

provisions of the will; the court

administering decedent's estate then

approved the three recommendations. After

the three hospices were selected by the

executor in Devlin, supra, the three

hospices then moved for summary judgment,

which was granted by the trial court which

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relied in an alternative way upon "the

doctrine of cy pres and/or deviation." The

appellate court reversed, finding that

because of a conflict in the evidence

: submitted a genuine issue of material fact

did exist. The appellate court went on to

state that it "would be premature to

determine the application of the cy pres or

deviation doctrines when the issue as to

the qualification or lack of qualification

of the hospices under the terms of the will

is still an open question."

The case sub judice is an action for

declaratory judgment. Plaintiff has

requested the guidance and approval of the

Court and a declaratory judgment declaring,

inter alia, (1)"that the terms of the

Charitable Trust, as set out in the Will,

creates no reversionary interest in the

heirs of the Testator." (2) "that the

Charitable Trust is to be fully funded and

carried out, in accordance with its terms"

and (3) "that the Trustee, consistent with

the charitable intent of the Testator, is

authorized by the terms of the Will to

provide funding, as otherwise authorized by

the Will, for programs related to the

U.S.S.R. as it previously existed; for

programs related to the people and

institutions previously and currently

located within areas formerly occupied by

the USSR; and for other programs coming

within the scope of the Charitable Trust as

reasonably interpreted by the President of

Miami University in the exercise of his or

her sole discretion pursuant to the terms

of the Charitable Trust."

NRL. ASK Lone eer ieee

| ee oe nT

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Defendants/Counterclaimants Alan W.

Havighurst and Douglas A. Havighurst have

filed a complaint for declaratory judgment

asking that the Court declare, inter alia,

(1) "that the putative trust cannot be

carried out in accordance with its terms",

(2) that the proposed gift of trust must

fail and lapse and (3) that "the residuary

estate of testator be declared intestate

property and pass according to the

provision of the Statute of Descent and

Distrisuticem. . 3s «*

As in the Devlin case, the doctrines

of cy pres and deviation and the propriety

of their application to this case have been

discussed by the parties. At this stage of

the proceedings, Plaintiff's motion lacks

merit znd is accordingly overruled.

It IS THEREFORE ORDERED that the

Motion for Summary Judgment filed by

Plaintiff, First National Bank of

Southwestern Ohio is hereby overruled.

/s/ Randy T. Rogers, Judge

Filed August 24, 1995

IN THE COURT OF COMMON PLEAS

PROBATE DIVISION

BUTLER COUNTY, OHIO

Rt Ae ae NPR eb Fa ae a Gani

; THE FIRST NATIONAL BANK * Case No.94-0175

, OF SOUTHWESTERN OHIO,

EXECUTOR OF THE ESTATE *

OF WALTER E. HAVIGHURST Judge Randy

Rogers

Plaintiff

* OPINION AND

vs. JUDGMENT ENTRY

: OF DECLARATORY

MIAMI UNIVERSITY ET AL. * JUDGMENT

FINAL

APPEALABLE

Defendants ORDER

* . * : x es x

The above entitled matter came

before the Court for trial on September

4, 1995 on Plaintiff’s Complaint for

Declaratory Judgment, the Amended

Counterclaim of the Defendant, Alan W.

Havighurst, the Amended Counterclaim of

Defendant, Douglas A. Havighurst, and the

other pleadings filed herein and the

Court having heard the testimony of the

witnesses, examined the exhibits

introduced at trial, and considered the

arguments and memorandums of counsel does

now render its Opinion and issue its

judgment concerning the issues herein

raised.

Walter E. Havighurst died on

February 3, 1994. The Last Will and

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Testament of Walter E. Havighurst dated

September 8, 1988 and a Codicil to that

Will dated October 11, 1989 were admitted

to probate on February 11, 1994 in the

Probate Court of Butler County, Ohio.

Dr. Havighurst left assets valued at

approximately $6,130,000 to be

administered through his probate estate.

Item III of the Havighurst Will provided,

inter alia:

“ITEM III. A. I give and devise

all of the real property I may own, or

have an interest in at. the time of my

death, to Miami University, Oxford, Ohio.

This bequest is unrestricted and the

Board of Trustees may use and expend the

same for the benefit of the University in

any manner it deems appropriate.

B. To the individuals and

institutions listed below, I give and

bequeath the following:

1. To MIAMI UNIVERSITY, Oxford,

Ohio any and all books owned

by me at my death;

2. To MIAMI UNVIERSITY, Oxford,

Ohio all of my papers,

letters, manuscripts, and

other items of literary

interest. It is my desire

that such items be placed in

THE KING LIBRARY of MIAMI

UNIVERSITY.

3. To SAMUEL NEFF, now residing

in Richmond, Indiana, if he

survives me, any automobile,

typewriters, and luggage,

owned by me at my death.

4. To MIAMI UNVIERSITY, Oxford,

Ohio, my Hodgin painting of

4l1-a

Fisher Hall, presently

hanging in my study, if

owned by me at my death. It

is my desire that said

painting be placed in the

Joseph M. Bachelor Room of

Bachelor Hall, Miami

University, Oxford, Ohio.

5. To my niece, RUTH NEFF, now

residing in Richmond,

Indiana, if she survives me,

all furniture, appliances,

rugs, draperies, silver,

china, crystal, art objects,

decorative pieces, and all

other furnishings and items

for household use, located

in my residence at the time

of my death.

6. To GOODWILL INDUSTRIES, all

men’s clothing which I own

at the time of my death.

Cc. I give and bequeath to each of

the following individuals as folldWs:

1. $100,000 to my sister, Mrs. MIRIAM

HAVIGHUST JOHNSON, if she survives

me;

2. $25,000 to BRUCE J. HAVIGHURST,

now residing at 20861 Byron Road,

Shaker Heights, Ohio 44122, if he

survives me;

3. $25,000 to DOUGLAS A. HAVIGHURST,

now residing at 1151 Haselton

Road, Shaker Heights, Ohio 44121,

if he survives me.

4. $25,000 to ALLAN W. HAVIGHURST,

now residing at 3071 Huntington

42-a

Road, Shaker Heights, Ohio 44120,

if he survives me* ~

5. $25,000 to WALTER E. HAVIGHURST,

now residing at 338 West 47

Street, New York, New York, 10024,

if he survives me;

6. $25,000 to JAMPES P. HAVIGHURST,

now residing at 52 Rapaki Road,

Christchurch, New Zealand, if he

survives me.

7.$25,000 to RUTH NEFF, now residing

at 329 SW First Street, Richmond,

Indiana 47374, if she survives me;

D. I give and bequeath to my niece,

HELEN BERK, now residing at 2301 Cheryl

Drive, Jacksonville, Florida 32017, if

she survives me, the sum of $5,000.000.

E. If DOUGLAS A. WILSON and SUSAN

WILSON, or either of them or their

estates, or their beneficiaries thereof,

should be indebted to me at my

death, as evidenced by a note and a

second mortgage executed by them and

delivered to me, in the face amount of

$50,000, or any renewals thereof, I

direct and require that all of such

indebtedness and all interest thereon be

forgiven and cancelled in its entirely,

it being my intention by the bequest to

relieve said DOUGLAS ©. WILSON and SUSAN

WILSON, or either of them, or their

estates, or their beneficiaries thereof

of any obligation to repay said

indebtedness, or any part thereof, or any

interest thereon.

F. I give and bequeath the sum of

. The name and address of Alan W. Havighurst

were corrected in the October 11, 1989 Codicil to

the Havighurst Will

ee eee ee

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$250,000 to MIAMI UNIVERSITY, Oxford,

Ohio to be used by Miami University as an

endowment for the Special Collections

Library, for enhancing its holdings.

G. All the rest, residue and

remainder of my estate, of whatever

nature and wherever situated, which I own

at the time of my death, I give, devise

and bequeath to THE FIRST NATIONAL BANK

OF SOUTHWESTERN OHIO, Monroe, Ohio, IN

TRUST NEVERTHELESS, for the following

uses and purposes and under the following

terms and conditions:

(a) I do hereby confer on my

Trustee all of the powers which are

now or may hereafter be conferred by

law upon trustees, and in addition

thereto, my said Trustee shall have

full power and authority to perform

the following.

(b) The income of my trust estate,

and the principal if need be, shall

be used by my Trustee to promote and

fund educational projects through

the Miami University International

Center, Oxford, Ohio, for building

cross-cultural understanding between

the peoples of the United States of

America and the Union of Soviet

Socialist Republics. The President

of Miami University, Oxford, Ohio,

or his or her designee, shall have

the sole discretion to determine the

nature of said projects, within the

guidelines set forth below, and to

determine the amounts necessary to

fund said projects.

1. Funding and promoting

|

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presentations to members of the

general public on the Soviet

Union;

2. ‘Funding and promoting

classes and presentations to

Miami University students

and children on various aspects

of Soviet life;

3. Funding and promoting study

groups and classes for Miami

University students and adults

on Soviet-American relations

and contemporary Soviet

society; ;

4. Funding and promoting

presentations, seminars, and

studies on relations between

the governments of the United

States and the Soviet Union;

5. Funding and promoting

programs and classes dealing

with conflict relationships at

the international level;

6. Funding and promoting Miami

University student, and group

trips by members of the Oxford,

Ohio community to the Soviet

Union through a “sister city”

program, according to

guidelines set forth by Sister

Cities International,

Washington, D.C.;

7. Funding and promoting

group trips to the Soviet Union

to allow Miami University

students, Oxford, Ohio

citizens, and other Americans

to meet and establish direct

contact with municipal

45-a

uididenard

officials, industrial workers,

educators, students, medical,

legal, and other professionals,

agriculturalists, and creative

artists;

8. To promote and fund exchanges

of children’s artwork between

Soviet and American children

and to promote and to fund

consultative services to

municipalities and groups

wishing to establish direct

contact with Soviet people and

their counterparts;

9. To establish and fund

an endowed professorship of

Soviet-American Relations at

Miami University, Oxford, Ohio.

(c). This trust fund shall be

referred to as the WALTER E.

HAVIGHURST FUND. —_

(d). It is contemplated that the

trust income and principal, if

needed, shall be used, at least

initially, to fund and promote the

projects listed in (b) above,

primarily in Southwestern Ohio and

Southeastern Indiana. However, my

trustee shall have the authority to

fund such projects anywhere in the

United States, if they are in

keeping with the overall purposes of

this trust and if pursuant to

instructions given to it by the

President of Miami University,

Oxford, Ohio.

(e) I request that RUTH NEFF and

SAMUEL NEFF, now residing in

Richmond, Indiana, by [sic] utilized

|

as consultants to the President of

Miami University, Oxford, Ohio, for

the purposes of providing

suggestions and advice on ways that

the above projects might be

accomplished although the ultimate

decisions shall remain with said

President.

(f) As set forth above, all

determinations regarding

expenditures of funds shall be made

by the President of Miami

University, Oxford, Ohio, or his or

her designee. My Trustee shall be

relieved of any and all liability

from or responsibility for the

decisions made by said President.”

The only substantive change *o the

Havighurst Will by the October 11, 1983

Codicil was the addition of the following

provision under Item III, paragraph C:

“8. “$25,000 to DOROTHY #H.

KUCERA, now residing at 9310

Hamlin Avenue, Evanston,

Illinois 60203, if she survives

me.”

The value of the specific bequests

distributed to both private individuals

and charitable and/or educational

institutions under Item III of the

Havighurst Will totaled approximately

$725,000. The bulk of the Havighurst

Estate, which after payment of the estate

taxes, decedent’s debts, and the costs of

the administration of decedent’s estate

was in excess of $4,500,000, has been

distributed to the First national Bank of

Southwestern Ohio, as Trustee, under the

ie at? nell cA

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provisions set forth in Paragraph G of

Item III of the Havighurst Will.

The case sub judice is primarily an

action for declaratory judgment.

Plaintiff has requested the guidance and

approval of the court and a declaratory

judgment declaring, inter alia, (1) “that

the terms of the Charitable Trust, as set

out in the Will, create no reversionary

interest in the heirs of the Testator,”

(2) “that the charitable Trust is to be

fully funded and carried out, in

accordance with its terms,” and (3) “that

the Trustee, consistent with the

charitable intent of the Testator, is

authorized by the terms of the Will to

provide funding, as otherwise authorized

by the Will, for programs related to the

U.S.S.R. as it previously existed; for

programs related to the people and

institutions previously and currently

located within areas formerly occupied by

the U.S.S.R.; and for other programs

coming within the scope of the Charitable

Trust as reasonably interpreted by the

President of Miami University in the

exercise of his or her sole discretion

pursuant to the terms cf the Charitable

saute.”

Defendant/Counterclaimants Alan W.

Havighurst and Douglas A. Havighurst have

filed their own complaints for

declaratory judgment asking that the

Court declare, inter alia, (1) “that the

putative trust cannot be carried out in

accordance with its terms", (2) that the

proposed gift of trust must fail and

lapse and (3) that “the residuary estate

of testator be declared intestate

48-a

property and pass according to the

provisions of the Statute of Descent

and Distribution...” ;

The portion of the Havighurst Will

that is the primary source of controversy

in this case is Sub-paragraph (b) of

Paragraph G in Item III of the Will.

Therein the testator used the following

language:

. (b) The income of my trust

estate, and the principal if need

be, shall be used by my Trustee to

promote and fund educational

projects through the Miami

University International Center,

Oxford, Ohio, for building cross-

cultural understanding between the

peoples of the United States of

America and the Union of Soviet

Socialist Republics. The President

of Miami University, Oxford, Ohio,

or his or her designee, shall have

the sole discretion to determine the

nature of said projects, within the

guidelines set forth below, and to

determine the amounts necessary to

fund said projects.” (emphasis

added).

To decide the issues raised by the

pleadings in the case sub judice the

Court must construe the language of the

Havighurst Will. A probate court may

construe the provisions of a will ina

declaratory judgment action. R.C.

2127.03. See also In re Trust of

Selsor, 13 Ohio App. 3d 164, 468 N.E. 745

(1983). In the construction of a will,

the sole purpose of the court should be

to ascertain and carry out the intention

49-a

of the testator. Such intention must be

ascertained from the words contained in

the will. Townsend’s Executors v.

Townsend, et al. (1874), 25 Ohio St. 477;

Carr v. Stradley (1977), 52 Ohio St. 2d

220, 371 N.E. 2d 540; American Diabetes

Ass'n’, Inc. v. Diabetes Soc. Of Clinton

Cty., 31 Ohio App. 3d 136, 509 N.E.

2d 84 (1986).

When a term in a will is susceptible

to various meanings, the Probate Court

may consider the circumstances

surrounding the drafting of the

instrument in order to arrive ata

construction consistent with the overall

intent of the testator so as to uphold

all parts of the will. Willis v.

Union Savings & Trust Co. (1982), 69 Ohio

St. 2d 382, 433 N.E.2d 415, American

Diabetes, supra. As stated by the Ohio

Supreme Court in Holmes v. Hrobon (1953)

158 Ohio St. 508, 110 N.E. 2d 574:

“If possible, the testator’s

intention must be determined from

the instrument itself. It is,

however, well settled that where

there is some doubt as to the

meaning of the will the Court may

admit extrinsic evidence. With such

evidence the Court is better ,able to

see things as the testator saw them

and to give that construction which

he intended.” Holmes, supra, 110

N.E. 2d 574, 581.

It has also been stated that whether the

will appears ambiguous or not, the Court

is entitled to hear such extrinsic

evidence of the surrounding circumstances

as will put it in the place of the

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testator. Until this is done, the Court

cannot know whether the will is ambiguous

or not. While evidence of surrounding

circumstances-is admissible to enable the

Court to understand the meaning of the

words which testator has used in the

will, it is not admissible to add to the

will provision which cannot fairly be

inferred from the language which is used

therein, or to take from the will

provisions which are clearly expressed

therein. See Page, The Law of Wills,

Sec. 32.2, page 237. In any case where it

is necessary to invoke extrinsic evidence

to assist in the construction of a

will, it is recognized by the great

weight of authority that evidence of the

facts and circumstances existing at the

time of the execution of the will, and

known to the testator, is admissible not

to contradict the meaning of the will,

but to “enable the court to place itself

in the testator’s situation, to see

things as the saw them, and to apply his

language as he understood and intended

it." See Page, The Law of Wills, Section

32.8, page 260.

In Subparagraph (b) of Item III,

Paragarph G, the testator made reference

to the “peoples of the United States of

America and the Union of Soviet Socialist

Republics” and in the nine subparagraphs

that followed, the testator repeatedly

used the terms “Soviet” and “Soviet

Union. At the time that Walter E.

Havighurst executed his Last Will and

Testament the “Union of Soviet Socialist

Republics” was also referred to as the

“Soviet Union” and was one of the largest

a Wn aa Rit A.

ce Ay Ser THD

5li-a

nations in the world. In 1987,

approximately 284,000,000 people lived in

the fifteen Soviet Socialist Republics

which then comprised the “Soviet Union”.

The Republics which made up the Union of

Soviet Socialist Republics included the

Russian Soviet Federated Socialist

Republic, the Ukrainian S.S.R.,* the

Byelorussian S.S.R., the Uzbek S.S.R.,

the Kazbah S.S.R., the Georgian S.S.R.,

the Azerbajan S.S.R., the Lithuanian

S.S.R., the Modavian S.S.R., the Latvian

S.S.R., the Kirghiz S.S.R., the Tajik

$.S.R., the Armenian S.S.R., the Turkem

S.S.R., and the Estonian S.S.R. At

the time that Walter E. Havighurst

executed his Last Will and Testament,

twenty-two different “peoples” or ethnic

groups with at least one million members

or more lived within the fifteen

Republics that then comprised the “Union

of Soviet Socialist Republics.”

In 1991, the “Union of Soviet

Socialist Republics” ceased to exist as a

political entity. Today, there are still

twenty-two different “peoples” or ethnic

groups with at least one million members

or more living in the same geographical

area that was formerly known as the

“Union of Soviet Socialist Republics”.

The former Russian Soviet Federated

Socialist Republics is now known as the

Russian Federation or Russia. The

Ukranian S.S.R. is now known as Ukraine.

The former Byelorussian S.S.R. is now

known as Belarus. The former Uzbek

S.S.R. is now known as Uzbekstan. The

2 “S.S.R.” is an abbreviation for “Soviet

Socialist Republic.”

ee nee nee cena e ne

former Kazbah S.S.R. is now known as

Kazakhstan. The former Georgian S.S.R.

is now known as Georgia. The former

Azerbajan S.S.R. is now known as

Azerbaijan. The former Lithuanian S.S.R.

is now known as Lithuania. The former

Moldavian S.S.R. is now known as Moldava.

The former Latvian S.S.R. is now known as

Latvia. The former Kirghiz S.S.R. is now

known as Kyrgyzstan. The former Tajik

S.S.R. is now known as Tajikistan. The

former Armenian S.S.R. is now known as

Armenia. The former Turkem S.S.R. is now

known as Turkmenistan. The former

Estonian S.S.R. is now known as Estonia.

Eleven of the former SovietSocialist

Republics have joined with the Russian

Federation to form a political entity

known as the Commonwealth of Independent

States. Estonia, Latvia and Lithuania

have not joined this Commonwealth.

Different terms are now used to refer to

the geographic area that was once known

as the “Soviet Union.” Some people refer

to this area as “the_former Soviet

Union.” Others refer to this area as the

“post Soviet states.” Still others refer

to this area of the world as the “Newly

Independent States.” No matter what

nomenclature is used, there are still

twenty-two different “peoples” or

ethnic groups with at least one million

members or more living in the same

geographical area that was formerly known

as the “Union of Soviet Socialist

Republics."

Defendant/Counterclaimants Alan W.

Havighurst and Douglas A. Havighurst have

asserted that because the Soviet Union no

i

5

i

;

longer exists as a political entity, the

trust described in Paragraph G of the

Havighurst Will cannot be carried out in

accordance with its terms, the proposed

gift of trust must fail and lapse and the

residuary estate of testator must be

declared intestate property and pass to

them and their relatives according to the

provisions of Ohio’s Statute of Descent

and Distribution. For a number of

reasons the Court disagrees with such

assertions.

The Walter E. Havighurst Fund was

designed by the testator “to promote and

fund educational projects.” The language

creating the Walter E. Havighurst Fund is

found in Paragraph G of the Havighurst

Will. Paragraph G is a general residuary

clause. The creation of a charitable

trust within the language of a residuary

clause is not unusual. A much more

simplified residuary clause, i.e., "the

residue of my estate I give to The

Cleveland Trust Company to be devoted to

the needy & poor women," was held by the

Ohio Supreme Court to create a valid

testamentary charitable gift in Palmer v.

Oiler (1921) 102 Ohio St. 271, 131 N.E.

362. Gifts. in trust for the purposes of

education are within the rules governing

charitable trusts and are liberally

construed. Carrel v. State ex rel.

Brown, 11 Ohio App. 281, 30 CC(NS) 161

(1919).

Gifts for charitable purposes have

always been favored in equity, and trusts

created for such purposes are carried

into effect upon broad liberal principles

of equity jurisprudence under

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circumstances where a purely private

trust might fail. Gearhart v.

Richardson, (1924), 109 Ohio St. 418, 142

N.E. 890. As noted by the Ohio Supreme

Court in Gearhart, supra, many charitable

trusts have been construed, and

rarely has a trust for charitable

purposes been allowed to fail. See

Lessee of Bryant v. McCandless, 7 Ohio,

pt. 2, 135; Trustees of McIntire Poor

School v. Zanesville Canal & Mfg. Co. v.

Zanesville, 20 Ohio St., 483; Williams v.

First Presbyterian Society in Cincinnati,

1 Ohio St., 478; Landis v. Wooden, 1 Ohio

St., 160, 163, 59 Am.Dec., 615; Hullman

v. Honcomp, 5 Ohio St., 525; McIntire's

Admrs. V. Zanesville, 17 Ohio St., 352;

Miller v. Teachout, 24 Ohio St., 525;

Bd. Of Ed of Fairfield Twp. V. Ladd, 26

Ohio St. 211; American Traci Society v.

Atwater, 30 Ohio St., 77, 27 Am.Rep.,

422; Scott v. Trustees of Marion

Township, 39 Ohio St., 153; Sowers v.

Cyrerius, 39 Ohio St. 29, 48 Am.Rep. 418;

Christy v. Commissioners, 41 Ohio St.

711; Mannix, Assignee, v. Purcell, 46

Chie SE. 10h, 22 Bibs « Dias 2 sth»

753, 15 Am St. Rep., 562; Palmer v.

Oiier, Eurcx., i102 Ghie &8t., 271, i131

N.E.,362. In all the above cases

charitable trusts have been sustained.

Since Gearhart, supra, was decided,

Ohio courts have continued to sustain the

validity of charitable trusts. See

American Diabetes Association, Inc. v.

Diabetes Society of Clinton County, 31

Ohio App. 3d 136, 139, 509 N.E.2d 84

(1986); First National Bank of Akron,

Trustee, v. Unknown Heirs of Donnelly,

55-a

Jr., et al., 96 Ohio App. 505, 122 N.E.

2d 672 (1954); Craft v. Shroyer, 81 Ohio

App. 253, 74 N.E. 2d 589 (1947); Heinlein

v. The Elyria Savings & Trust Co., Exr.

and Trustee, 75 Ohio App. 353, 62 N.E.

284 (1945); City of Springfield, Trustee

v. Patterson, 26 Ohio Misc. 242, 270 N.E.

2d 683 (1970); and Fenn College, et al v.

Nance, et al., 4 Ohio Misc. 183, 210

N.E.2d 418 (1965).

Walter E. Havighurst was a

charitable person. He had an affinity

for Miami University, a school at which

he had served for many years as a

distinguished member of the faculty. Dr.

Havighurst was interested in education.

The terms of his Will reflect his nature

and interests. After making specific

bequests to his nieces and nephews of

what most people would regard as a

substantial sum of money, he provided

that “all the rest, residue and remainder

of my estate, of whatever nature and

wherever situation, which I own at the

time of my death,” he left in a trust to

be known as the Walter E. Havighurst

Fund. His purpose in creating the trust

was a charitable one. The Court finds

that the Walter E. Havighurst fund is a

charitable trust as that term has been

construed by the Courts of Ohio.

In reviewing the terms of a

testamentary charitable trust to

determine the overall intent of the

testator, a probate court must examine

the language of the charitable trust to

see what the testator intended to be

accomplished by the administration of the

charitable trust. The language of the

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Havighurst Will clearly reflects that the

testator intended that the trust funds be

used to promote and fund educational

projects for building cross-cultural

understanding between the peoples

of the United States of America and the

Union of Soviet Socialists Republics.

The testator set forth nine (9)

guidelines for carrying out this intent.

The guidelines describe the types of

educational projects that the testator

wanted the Walter E. Havighurst Fund to

promote and fund.

The probate court must also examine

the language of the charitable trust to

see who the testator intended to benefit

through the administration of the

charitable trust. In the case sub judice

the language of the Havighurst Will

clearly reflects that the testator

intended that Miami University, Oxford,

Ohio be a member of the class of

beneficiaries of the Walter E. Havighurst

Fund. Subparagraph 9 of Paragraph G(b)

of the Havighurst Will provides that the

projects to be supported by the

Havighurst Fund may include the

establishment of an endowed professorship

at Miami University. Miami University

students were also named by the testator

as members of the class of intended

beneficiaries of the Havighurst Fund.

Within his guidelines for educational

projects, the testator listed, inter

alia, classes, study groups, and

presentations for Miami University

students and even included group trips to

the Soviet Union for Miami University

students.

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The Court finds that the continued

existence of the political entity

formerly known as the “Union of Soviet

Socialist Republics” was not intended by

the testator to be an integral factor in

the testator’s overall plan concerning

the creation and administration of the

Walter E. Havighurst Fund. The testator’s

primary purpose in establishing this

charitable trust was to fund and promote

education and more particularly to fund

and promote educational projects that

would help build cross-cultural

understanding between the “peoples” of

the United States. of America and what was

known in 1988 as the Union of Soviet

Socialist Republics. The Court further

finds that the testator intended the

terms “Union of Soviet Socialist

Republics,” “Soviet Union,” and “Soviet”

to primarily be descriptive of the

“peoples” that inhabited that area of the

world. The fact that the “Union of Soviet

Socialist Republics” no longer exists as

a political entity is of no importance in

Carrying out the terms of this charitable

trust in accordance with the intent of

the testator. The “peoples” still exist.

The need for education still exists. The

need for cross-cultural understanding

between the “peoples” of the United

States and the “peoples” still living in

the same geographical area that was

formerly known as the “Soviet Union”

still exists. Miami University still

exists. Miami University students still

exist. The other classes of persons that

the testator intended to be benefited by

the Havighurst Fund still exist. The

testator never intended that his

residuary estate pass by the laws of

intestate succession in the event that

the political entity known as the “Soviet

Union” dissolved.

Defendants/Counterclaimants Alan W.

Havighurst and Douglas A. Havighurst have

also asserted that because no formal

“Miami University International Center"

currently exists, the trust described in

Paragraph G of the Havighurst Will cannot

be carried out in accordance with its

terms, the proposed gift of trust must

fail and lapse and the residuary estate

of testator must be declared intestate

property. The court finds this

contention to be without merit.

On September 7, 1988 and on October

11, 1989 when Walter E. Havighurst

executed his Last Will and Testament and

codicil, respectively, the administration

of Miami University was in the process of

developing an Office of International

Programs at Miami University, Oxford,

Ohio. Prior to establishing an Office of

International Programs, Miami University

had a Director of International Student

Services. During 1989, Miami University

hired a Director for its Office of

International Programs. During this time

period the physical center of

international activities at Miami

University was located at Langstroth

Cottage on the Miami University campus in

Oxford, Ohio. Throughout the late 1980’s

the overall academic plan of Miami

University included the continued

development of the University’s

International program and included the

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development of the Office of

International Programs and an

International Center at Miami University.

Within the University community the

Office of International Programs is

sometimes referred to as the

“International Center.”

In the case sub judice the testator

provided that “the income of my trust

estate, and the principal if need be,

shall be used by my Trustee to promote

and fund educational projects through the

Miami University International Center,

Oxford, Ohio..” The reference to the

“Miami University International Center”

is administrative in nature. The terms

of the Will create no substantive duties

and delegate no powers to the “Miami

University International Center.” The

testator named the First National Bank of

Southwestern Ohio as the Trustee of the

Walter E. Havighurst Fund and delegated

specific powers. The Trustee will be

held legally accountable as a fiduciary

under the law of Ohio. Under Sub-

paragraph (b) of Item III, Paragraph G,

the testator gave the President of Miami

University, Oxford, Ohio, or his or her

designee, sole discretion to determine

the nature of the educational projects,

within the guidelines set forth in the

Havighurst Will. Under Sub-paragraph (e)

of Item III, Paragraph G, the testator

requested that Ruth Neff and Samuel Neff

be utilized as consultants to the

President of Miami University for

purposes of providing suggestions and

advice.

Even if the form of the charitable

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trust created by the Havighurst Will was

an outright bequest to the “Miami

University International Center”, which

it is not, the charitable trust would not

fail simply because no formal “Center”

existed at the time of the testator’s

death. A charitable organization may come

into existence after a will has been

probated and receive a charitable bequest

under the will if such will permits the

decedent’s intent to be realized and

carried out. Where a will includes a

bequest to a charitable organization not

yet in existence at the time of the

execution of the will or of its

probating, there is nevertheless an

immediate gift for charitable purposes

upon the testator’s death, and if the

organization is formed within a

reasonable time thereafter, it is

entitled to receive the bequest.

American Diabetes Ass’n. Inc.

v. Diabetes Soc. Of Clinton Cty. (1986), |

31 Ohio App. 3d 136, 509 N.E.2d 84

(1986). See also Rice v. Stanley (1975)

42 Ohio St. 209, 327 N.E.2d 774.

To accomplish the purpose of a

charitable trust and to effectuate its

administration, a court of equitable

jurisdiction will direct or permit a

trustee to deviate from a term of the

trust, if it appears to the court that

compliance with the letter of the

instrument of creation is impossible.

First National Bank of Akron, Trustee, v.

Unknown Heirs of Donnelly, Jr. et al., 96

Ohio App. 509, 122 N.E.2d 672

(1954) .Where the creator of a

testamentary charitable trust has made no

6l1-a

provision for forfeiture, or has not made

an alternate bequest in the event that a

strict compliance with the letter of his

will is impossible, an inference may be

drawn that the testator did not intend

that the gift to charity should fail, but

on the contrary intended that if the

carrying out of his dominant purpose was

possible by varying the means and methods

prescribed, a deviation should be

allowed, to meet circumstances arising

from time to time during the existence of

the trust. First National Bank of Akron,

supra. See also In re Farren, 27 Ohio

App. 2d 31, 272 N.E. 2d 162 (1970).

After reviewing the terms of the

Havighurst Will in its entirety and

taking into account the extrinsic

evidence admitted at trial concerning the

existence of the Office of International

Programs that existed at Miami University

at the time the testator executed his

Will, this Court finds that the testator

intended the reference to the “Miami

University International Center” in Sub-

paragraph (b) of Item III, Paragraph G,

to mean the “Miami University

International Center” or the “Office of

International Programs at Miami

University” and the Havighurst Will

may be construed in that manner. If such

a construction were not proper, this

Court would not hesitate to apply the

doctrine of deviation to arrive at the

same result.

With respect to the issues of

construction raised by the demise of the

political entity formerly known as the

“Soviet Union,” the Court is aware that

in addition to the doctrine of deviation,

another doctrine exists, i.e., the

doctrine of cy pres, which, if

applicable, would keep this charitable

trust from failing. The doctrine of cy

pres operates in the field of charitable

trusts and is a rule of judicial

construction. In a charitable trust,

where the court finds that the settlor

manifested a general intention to give to

charity, and it is impracticable or

inexpedient to carry out the terms of the

trust, the court will execute the purpose

of the settlor as nearly as it can,

according to the original plan, under the

doctrine of cy pres. See Craft v.

Shroyer, 81 Ohio App. 253, 74 N.E.2d 589

(1947). As stated in the Restatement of

the Law of Trusts:

“If property is given in trust to

be applied to ¢. particular

charitable purpose, and it is or

becomes impossible or impracticable

or illegal to carry out the

particular purpose, and if the

settlor manifested a more general

intention to devote the property to

charitable purposes, the trust will

not fail but the court will

direct the application of the

property to some charitable purpose

which falls within the general

charitable intention of the

settlor.” Restatement of the Law of

Trusts, Section 399.

See also First National Bank of Akron,

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Trustee, v. Unknown Heirs of Donnelly,

Jr., et al., 96 Ohio App. 509, 122 N.E.

2d 672 (1954).

If the primary purpose of a

charitable trust can be accomplished by

deviation from express terms in the

instrument of creation, in respect to

purely administrative matters, it becomes

unnecessary to analyze the facts in the

light of the doctrine of cy pres, and, in

doing the latter, determine whether the

donor manifested a general charitable

intent, and if so, whether the property

should be used for an approximate

charitable purpose (a purpose as nearly

as may be like the purpose stated by the

donor) when it is impossible to exactly

carry out his specific intent. See: 3

Scott on Trusts, Section 399; 2A Bogert

on Trusts and Trustees, Section 441;

Heinlein v. Elyria Savings & Trusts Co.,

Exr. & Trustee, 75 Ohio App.353, 62

N.E.2d 284; First National Bank of Akron,

Trustee, supra.

In the case sub judice the court

finds that the testator manifested a

general charitable intention to devote

his residuary estate to charitable

purposes.Since the Court has previously

found that the continued existence of the

political entity formerly known as the

Union of Soviet Socialist Republics was

not intended by the testator to be an

integral factor in the testator’s overall

plan concerning the creation and

administration of the Walter E.

Havighurst Fund, the court does not

finds that it is impossible or

impracticable or illegal to carry out the

64-a

particular purpose of the charitable

trust created by the Havighurst Will.

The Court further finds that since

the testator intended the terms “Union of

Soviet Socialist Republics”, “Soviet

Union,” and “Soviet”, as used in his Last

Will and Testament, to primarily be

descriptive of the “peoples” that

inhabited that geographical area of the

world, and the Havighurst Will may be

construed in that manner. Within the

intent of the testator, the term “Union

of Soviet Socialist Republics” may be

construed in that manner. Within the

intent of the testator, the term “Union

of Soviet Socialist Republics” may be

construed to also mean “former Union of

Soviet Socialist Republics,” and the term

“Soviet Union” may also be construed to

mean “former Soviet Union.” Therefore

this Court does not find it necessary to

apply the doctrine of cy pres. If such

construction of those terms were not

proper, this Court would not hesitate to

apply either the doctrine of deviation of

the doctrine of cy pres to uphold the

charitable trust created by the testator.

In its complaint, Plaintiff sought a

declaration that the terms of the

charitable trust, as set out in the Will,

creates no reversionary interest in the

heirs of the testator. No such

reversionary interest is expressed in the

terms of the Havighurst Will. The

testator’s heirs could only have a

reversionary interest in the trust estate

if the charitable trust failed and the

doctrines of deviation or cy pres could

not save the trust. A testator is never

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presumed to have died intestate as to any

part of his estate to which his attention

was seemingly directed. Carr v. Stradley

(1977), 52 Ohio St. 2d 220, 371 N.E.2d

540. In the case sub judice the Court

has already stated that it if it becomes

impossible or impracticable or illegal to

carry out the particular purpose of this

charitable trust, the Court would not

hesitate to apply either the doctrine of

deviation or cy pres to carry out the

general charitable intent of the

testator. Under these circumstances the

heirs of the testator have no

reversionary interest in the trust

estate.

Before concluding this Opinion the

Court would like to point out to the

parties that the residuary clause of the

Havighurst Will creates a charitable

trust to be administered according to the

terms set forth and subject to the

general jurisdiction of the Probate

Court. The named Trustee is the First

National Bank of Southwestern Ohio.

Miami University is not the Trustee. The

Miami University International Center or

the Office of International Programs at

Miami University is not the Trustee. The

President of Miami University is not the

Trustee. The testator gave the President

of Miami University the sole discretion,

within the enumerated guidelines, to

select the educational projects that

would be funded and promoted by the

Havighurst Fund. However, implicit in

the method of administration chosen by

the testator is the general oversight of

66-a

the Trustee. As a fiduciary, the Trustee

should conduct itself accordingly.

In accordance with the Opinion of

this Court, it is therefore

ORDERED, ADJUDGED AND DECREED that

the trust created by the provisions of

Item III, Paragraph G of the Last Will

and Testament of Walter E. Havighurst

shall be construed to also mean “former

Union of Soviet Socialist Republics”, and

the term “Soviet Union” as used in the

Last Will and Testament of Walter E.

Havighurst shall also be construed to

mean “former Soviet Union,” and it is

FURTHER ORDERED, ADJUDGED AND

DECREED that the term “Miami University

International Center” as used in Sub-

paragraph (b) of Item III, Paragraph G of

the Last Will and Testament of Walter E.

Havighurst shall be construed to mean the

“Miami University International Center”

or the “Office of International Programs

at Miami University,” and it is

FURTHER ORDERED, ADJUDGED AND

DECREED that the charitable trust created

by the provisions of Item III, Paragraph

G of the Last Will and Testament of

Walter E. Havighurst be fully funded and

carried out in accordance with its terms

and the Executor of the Estate of Walter

E. Havighurst is hereby authorized and

directed to distribute the residuary of

the Havighurst estate to THE FIRST

NATIONAL BANK OF SOUTHWESTERN OHIO,

Monroe, Ohio, IN TRUST NEVERTHELESS, for

the uses and purposes set forth in Item

III, Paragraph G of the Last Will and

Testament of Walter E. Havighurst, and it

is

Capi abide si ‘

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FURTHER ORDERED, ADJUDGED AND

DECREED that the terms of the charitable

trust, as set out in the Last Will and

Testament of Walter E.Havighurst, create

no reversionary interest in the heirs of

Walter E. Havighurst, and it is

FURTHER ORDERED, ADJUDGED and

DECREED that the Amended Counterclaim

filed by the Defendant, Alan W.

Havighurst, is dismissed, and it is

FURTHER ORDERED, ADJUDGED and

decreed that the Amended Counterclaim

filed by the Defendant, Douglas A.

Havighurst, is dismissed, and it is

FURTHER ORDERED, ADJUDGED AND

DECREED that the Plaintiff, as the

Executor of the Estate of Walter E.

Havighurst shall pay the costs of this

action.

Dated:

December 15, 1995 /s/ Randy T. Rogers,

Judge

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IN THE COURT OF COMMON PLEAS

PROBATE DIVISION

BUTLER COUNTY, OHIO

THE FIRST NATIONAL BANK * CASE NO. 94-0175

OF SOUTHWESTERN OHIO,

EXECUTOR OF THE ESTATE *

OF WALTER E. HAVIGHURST Judge

* Randy T. Rogers

PLAINTIFF

vs. *

FINDINGS OF FACT

MIAMI UNIVERSITY, ET AL.* AND

CONCLUSIONS OF LAW

DEFENDANTS *

.-@. eS 8 Oa BSS SS

FINDINGS OF FACT

1. Walter E. Havighurst died on

) February 3, 1994 at the age of ninety-three

| (93).

2. On September 7, 1988, Walter E.

Havighurst executed his Last Will and

Testament.

3. <A Codicil to the Last Will and

Testament of Walter E. Havighurst dated

September 7, 1988 was executed by Walter E.

Havighurst on October 11, 1989.

4. Item III of the Havighurst Will

provided, inter alia:

"ITEM III. A. I give and devise all

of the real property I may own, or have

an interest in at the time of my death,

to MIAMI UNIVERSITY, Oxford, Ohio.

| This bequest is unrestricted and the

Board of Trustees may use and expend

the same for the benefit of the

vo

69-a

University in any manner it deems

appropriate.

B. To the individuals and

institutions listed below, I give and

bequeath the following:

1. To MIAMI UNIVERSITY,

Oxford, Ohio any and all books owned by

me at my death;

2. To MIAMI UNVIERSITY,

Oxford, Ohio all of my papers, letters,

manuscripts, and other items of

literary interest. It is my desire

that such items be placed in THE KING

LIBRARY of MIAMI UNIVERSITY.

3. To SAMUEL NEFF, now

residing in Richmond, Indiana, if he

survives me, any automobile,

typewriters, and luggage, owned by me

at my death.

4. To MIAMI UNVIERSITY,

Oxford, Ohio, my Hodgin painting of

Fisher Hall, presently hanging in my

study, if owned by me at my death. It

is my desire that said painting be

placed in the Joseph M. Bachelor Room

of Bachelor Hall, Miami University,

Oxford, Ohio.

5. To my niece, RUTH

NEFF,now residing in Richmond, Indiana,

if she survives me, all furniture,

appliances, rugs, draperies, silver,

china, crystal, art objects, decorative

pieces, and all other furnishings and

items for household use, located in my

residence at the time of my death.

6. To GOODWILL

INDUSTRIES,all men's clothing which I

own at the time of my death.

C. I give and bequeath to each of

the following individuals as follows:

1. $100,000 to my

sister, Mrs. MIRIAM HAVIGHUST JOHNSON,

if she survives me;

2. $25,000 to BRUCE J.

HAVIGHURST, now residing at 20861 Byron

Road, Shaker Heights, Ohio 44122, if he

survives me;

3. $25,000 to DOUGLAS A.

HAVIGHURST, now residing at 1151

Haselton Road, Shaker Heights, Ohio

44121, if he survives me.

4. $25,000 to ALLAN W.

HAVIGHURST, now residing at 3071

Huntington Road, Shaker Heights, Ohio

44120, if he survives me;*

5. $25,000 to WALTER E.

HAVIGHURST, now residing at 338 West 47

Street, New York, New York, 10024, if

he survives me;

6. $25,000 to JAMES P.

HAVIGHURST, now residing at 52 Rapaki

Road, Christchurch, New Zealand, if he

survives me.

7. $25,000 to RUTH NEFF,

now residing at 329 SW First Street,

Richmond, Indiana 47374, if she

survives me;

D. I give and bequeath to my

niece, HELEN BERK, now residing at 2301

Cheryl Drive, Jacksonville, Florida

32017, if she survives me, the sum of

* The name and address of Alan W. Havighurst :

were corrected in the October 11, 1989 4

Codicil to the Havighurst Will. :

7i-a

$5,000.000.

E. If DOUGLAS A. WILSON and

SUSAN WILSON, or either of them or

their estates, or their beneficiaries

thereof, should be indebted to me at my

death, as evidenced by a note and a

second mortgage executed by them and

delivered to me, in the face amount of

$50,000, or any renewals thereof, I

direct and require that all of such

indebtedness and all interest thereon

be forgiven and cancelled in its

entirely, it being my intention by the

bequest to relieve said DOUGLAS Oo.

WILSON and SUSAN WILSON, or either of

them, or their estates, or their

beneficiaries thereof of any obligation

to repay said indebtedness, or any part

thereof, or any interest thereon.

F. I give and bequeath the

sum of $250,000 to MIAMI UNIVERSITY,

Oxford, Ohio to be used by Miami

University as an endowment for the

Special Collections Library, for

enhancing its holdings.

G. All the rest, residue and

remainder of my estate, of whatever

nature and wherever situated, which I

own at the time of my death, I give,

devise and bequeath to THE FIRST

NATIONAL BANK OF SOUTHWESTERN OHIO,

Monroe, Ohio, IN TRUST NEVERTHELESS,

for the following uses and purposes and

under the following terms and

conditions:

(a) I do hereby confer on

my Trustee all of the powers which are now

or may hereafter be conferred by law upon

trustees, and in addition thereto, my said

Trustee shall have full power and authority

to perform the following...”

(b) The income of my trust

estate, and the principal if need be, shall

be used by my Trustee to promote and fund

educational projects through the Miami

University International Center, Oxford,

Ohio, for building cross-cultural

understanding between the peoples of the

United States of America and the Union of

Soviet Socialist Republics. The President

of Miami University, Oxford, Ohio, or his or

her designee, shall have the sole discretion

to determine the nature of said projects,

within the guidelines set forth below, and

to determine the amounts necessary to fund

said projects.

1. Funding and promoting

presentations to members of the general

public on the Soviet Union;

2. Funding and promoting

classes and presentations to Miami

University students and children on various

aspects of Soviet life;

3. Funding promoting

study groups and classes for Miami

University students and adults on Soviet-

*Subparagraphs G(a) (1)-(a) (12) containing the

administrative powers of the Trustee have

not been reproduced as part of these

Findings of Fact and Conclusions of Law.

They may be found in their entirety in

Plaintiff Exhibit 1.

LY nie OID ia he a gil i

F

3

F.

73-a

American relations and contemporary Soviet

society;

4. Funding and promoting

presentations, seminars, and studies on

relations between the governments of the

United States and the Soviet Union;

5. Funding and promoting

programs and classes dealing with conflict

relationships at the international level;

6. Funding and promoting

Miami University student, and group trips by

members of the Oxford, Ohio community to the

Soviet Union through a "sister city"

program, according to guidelines set forth

by Sister Cities International, Washington,

D.C.;

7. Funding and promoting

group trips to the Soviet Union to allow

Miami University students, Oxford, Ohio

citizens, and other Americans to meet and

establish direct contact with municipal

officials, industrial workers, educators,

students, medical, legal, and other

professionals, agriculturalists, and

creative artists;

8. To promote and fund

exchanges of children's artwork between

Soviet and American children and to promote

and to fund consultative services to

municipalities and groups wishing to

establish direct contact with Soviet people

and their counterparts;

9. To establish and

fund an endowed professorship of Soviet-

American Relations at Miami University,

Oxford, Ohio.

(c). This trust fund shall be

referred to as the WALTER E. HAVIGHURST

FUND.

(d). It is contemplated that

the trust income and principal, if needed,

shall be used, at least initially, to fund

and promote the projects listed in (b)

above, primarily in Southwestern Ohio and

Southeastern Indiana. However, my trustee

shall have the authority to fund such

projects anywhere in the United States, if

they are in keeping with the overall

purposes of this trust and if pursuant to

instructions given to it by the President of

Miami University, Oxford, Ohio.

(e). I request that RUTH NEFF

and SAMUEL NEFF, now residing in Richmond,

Indiana, by [sic] utilized as consultants to

the President of Miami University, Oxford,

Ohio, for the purposes of providing

suggestions and advice on ways that the

above projects might be accomplished

although the ultimate decisions shall remain

with said President.

(f). As set forth above, a

[sic] determinations regarding expenditures

of funds shall be made by the President of

Miami University, Oxford, Ohio, or his or

her designee. My Trustee shall be relieved

of any and all liability from or

responsibility for the decisions made by

said President."

5. The only substantive change to the

Havighurst Will by the October 11, 1983

Codicil was the addition of the following

provision under Item III, paragraph C:

"8. "$25,000 to DORTHY H.

75-a

KUCERA, now residing at 9310

Hamlin Avenue, Evanston, Illinois

60203, if she survives me."

6. Walter E. Havighurst served over a

period of many years as a distinguished

member of the faculty of Miami University,

Oxford, Ohio.

7. Walter E. Havighurst was a

charitable person.

8. During the years 1988 and 1989

Walter E. Havighurst made substantial

charitable contributions. His 1988 Federal

income tax return (Form 1040) reflected

charitable contributions of $25,000 during

1988 and his 1989 Federal income tax return

(Form 1040) reflected charitable

contributions of $68,836 during 1989.

9. Throughout his adult life,

Walter E. Havighurst had an affinity for

Miami University, Oxford, Ohio.

10. In his Last Will and Testament

dated September 7, 1988, Walter E.

Havighurst named Miami University,

Oxford, Ohio as the devisee of all real

property which he owned, or had an interest

in at the time of his death. Pursuant to

this provision, Miami University received

the Havighurst residence located at 163

Shadowy Hills Drive, Oxford, Ohio which was

valued at $194,000 at the time of Dr.

Havighurst's death.

11. In addition to the devise of real

estate and bequests of certain tangible

personal property, Walter E. Havighurst

also bequeathed the sum of $250,000 to

Miami University.

12. When Walter E. Havighurst died, was

a widower, and left no issue then surviving.

76-a

13. Walter E. Havighurst made special

bequests in his Last Will and Testament

totaling more than $250,000 to his nieces,

nephews and other named individuals.

14. On September 7, 1988 and on October

11, 1989 when Walter E. Havighurst executed

his Last Will and Testament and Codicil,

respectively, the administration of Miami

University was in the process of developing

an Office of International Programs at

Miami University, Oxford, Ohio.

15. Prior to establishing an Office of

International Programs, Miami University

had a Director of International Student

Services.

16. During 1989, Miami University hired

a Director for its Office of International

Programs.

17. On September 7, 1988 and on October

11,1989, the physical center of

international activities at Miami University

was located at Langstroth Cottage located on

the Miami University campus in Oxford, Ohio.

18. Throughout the late 1980's the

overall academic plan of Miami University

included the continued development of the

University's international programs and

included the development of the Office of

International Programs and an International

Center at Miami University. Within the

University community the Office of

International Programs was sometimes

informally referred to as the "International

Center."

19. On September 7, 1988 and on October

11, 1989 when Walter E. Havighurst executed

his Last Will and Testament and Codicil,

respectively, the administration of Miami

77i-a

University, Oxford, Ohio had an established

plan which included the development of an

Office of International Programs and

International Center at Miami University.

20. Throughout 1988 and 1989 there

existed a nation known as the "Union of

Soviet Socialist Republics" ("U.S.S.R."),

and also referred to as the "Soviet Union."

21. In 1987, approximately 284,000,000

people lived in the fifteen Soviet

Socialist Republics which then comprised

the Soviet Union.

22. On September 7, 1988 and on October

11, 1989 when Walter E. Havighurst executed

his Last Will and Testament and Codicil,

respectively, the fifteen Soviet Socialist

Republics which made up the Union of Soviet

Socialist Republics included the Russian

Soviet Federated Socialist Republic, the

Ukrainian S.S.R.,° the Byelorussian S.S.R.,

the Uzbek S.S.R., the Kazbah S.S.R., the

Georgian S.S.R., the Azerbajan S.S.R., the

Lithuanian $.S.R., the Modavian S.S.R., the

Latvian $.S.R., the Kirghiz S.S.R., the

Tajik S.S.R., the Armenian S.S.R., the

Turkem $.S.R., and the Estonian S.S.R.

23. On September 23, 1988 and on

October 11, 1989 when Walter E. Havighurst

executed his Last Will and Testament and

Codicil, respectively, twenty two different

"peoples" or ethnic groups with at least

one million members or more lived in the

Union of Soviet Socialist Republics.

24. In 1991, the "Union of Soviet

Socialist Republics" ceased to exist as a

3 "sg _§.R." is an abbreviation for "Soviet

Socialist Republic."

political entity. Today, there are still

twenty-two different "peoples" or ethnic

groups with at least one million members or

more living in the same geographical are

that was formerly known as the "Union of

Soviet Socialist Republics". The former

Russian Soviet Federated Socialist

Republics is now known as the Russian

Federation or Russia. The Ukrainian S.S.R.

is now known as Ukraine. The former

Byelorussian.S.R. is now known as Belarus.

The former Uzbek S.S.R. is now known as.

Uzbekstan. The former Kazbah S.S.R. is now

known as Kazakhstan. The former Georgian

S.S.R. is now known as Georgia. The former

Azerbajan S.S.R. is now known as

Azerbaijan. The former Lithuanian S.S.R.

is now known as Lithuania. The former

Moldavian S.S.R. is now known as Moldava.

The former Latvian S.S.R. is now known as

Latvia. The former Kirghiz S.S.R. is now

known as Kyrgyzstan. The former Tajik

S.S.R. is now known as Tajikistan. The

former Armenian S.S.R. is now known as

Armenia. The former Turkem S.S.R. is now

known as Turkmenistan. The former Estonian

S.S.R. is now known as Estonia.

25. Eleven of the former Soviet

Socialist Republics have joined with the

Russian Federation to form a political

entity known as the Commonwealth of

Independent States. Estonia, Latvia and

Lithuania have not joined this

Commonwealth. Different terms are now used

to refer to the geographic area that was

once known as the "Soviet Union." Some

people refer to this area as "the former

soviet Union." Others refer to this area

ry as i x i a ie Nae eee Se nl A

OP ee ee oF ge een ee ee ~

[ear ee eee ee A

79-a

as the "post Soviet states." Still others

refer to this area of the world as the

"Newly Independent States."

26. The continued existence of the

political entity formerly known as the

"Union of Soviet Socialist Republics was

not intended by the testator to be an

integral factor in the testator's overall

plan concerning the creation and

administration of the Walter E. Havighurst

Fund.

27. The primary purpose of Walter E.

Havighurst in establishing the charitable

trust was to fund and promote education and

more particularly to fund and promote

educational projects that would help build

cross-cultural understanding between the

"peoples" of the United States of America

and what was known in 1988 as the Union of

Soviet Socialist Republics.

28. Walter E. Havighurst intended the

terms "Union of Soviet Socialist

Republics," "Soviet Union", and "Soviet",

as those terms were used in his Last Will

and Testament, to primarily be descriptive

of the "peoples" that inhabited that area

of the world.

29. The fact that the "Union of Soviet

Socialist Republics" no longer exists as a

political entity is of no importance in

carrying out the terms of the trust in

accordance with the intent of the [sic]

Walter E. Havighurst

30. Walter E. Havighurst intended the

reference to the "Miami University

International Center" in Sub-paragraph (b)

of Item III, Paragraph G, of his Will, to

mean the "Miami University International

Center" or the "Office of International

Programs at Miami University."

CONCLUSIONS OF LAW

1. A probate court may construe the

provisions of a will in a declaratory

judgment action. R.C. 2127.03. See also

In re Trust of Selsor, 13 Ohio App. 3d 164,

468 N.E. 745 (1983).

2. In the construction of a will,

the sole purpose of the court should be to

ascertain and carry out the intention of

the testator. Such intention must be

ascertained from the words contained in the

will. Townsend's Executors v. Townsend,

et al. (1874), 25 Chico St. 477; Carr v.

Stradley (1977), 52 Ohio St. 2d 220,

371 N.E. 2d 540; American Diabetes Ass'n',

Inc. v. Diabetes Soc. Of Clinton Cty., 31

Ohio App. 3d 136, 509 N.E. 2d 84 (1986).

3. When a term ina will is

susceptible to various meanings, the

Probate Court may consider the >

circumstances surrounding the drafting of

the instrument in order to arrive ata

construction consistent with the overall

intent of the testator so as to uphold all

parts of the will. Willis v. Union Savings

& Trust Co. (1982) 69 Ohio St. 2d 382, 433

N.E. 2d 415, American Diabetes, supra.

Whether the will appears ambiguous

or not, the Court is entitled to hear such

extrinsic evidence of the surrounding

circumstances as will put it in the place

of the testator. Until this is done, the

Court cannot know whether the will is

ambiguous or not. While evidence of

Lee in eee ea

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or

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be eh cela Ne te a cit NS, BS te Pe te LIE AAI ODED i ALOE

8i-a

surrounding circumstances is admissible to

enable the Court to understand the meaning

of the words which testator has used in the

will, it is not admissible to add to the

will provision which cannot fairly be

inferred from the language which is used

therein, or to take from the will

provisions which are clearly expressed

therein. See Page, The Law of Wills, Sec.

32.2, page 237.

5. In any case where it is necessary to

invoke extrinsic evidence to assist in the

construction of a will, it is recognized by

the great weight of authority that evidence

of the facts and circumstances existing at

the time of the execution of the will, and

known to the testator, is admissible not to

contradict the meaning of the will, but to

"enable the court to place itself in the

testator's situation, to see things as the

saw them, and to apply his language as he

understood and intended it." See Page, The

Law of Wills, Section 32.8, page 260.

Gifts in trust for the purposes of

education are within the rules governing

charitable trusts and are liberally

construed. Carrel v. State ex rel. Brown,

11 Ohio App. 281, 30 CC(NS) 161 (1919).

7. Gifts for charitable purposes have

always been favored in equity, and trusts

created for such purposes are carried into

effect upon broad liberal principles of

equity jurisprudence under circumstances

where a purely private trust might fail.

Gearhart v. Richardson, (1924), 109 Ohio

St. 418, 142 N.E. 890.

8. The trust created by the

provisions of Item III, Paragraph G of the

82-a

Last Will and Testament of Walter E.

Havighurst is a charitable trust under the

law of the State of Ohio.

9. The language of the Havighurst ;

Will clearly reflects that the testator

intended that Miami University, Oxford,

Ohio be a member of the class of

beneficiaries of the Walter E. Havighurst

Fund.

10. The continued existence of the

political entity formerly known as the

"Union of Soviet Socialist Republics" was

not intended by the testator to be an

integral factor in the testator's overall

plan concerning the creation and

administration of the Walter E. Havighurst

Fund.

11. The testator's primary purpose in

establishing this charitable trust was to

fund and promote education and more

particularly to fund and promote educational

projects that would help build cross-

cultural understanding between the "peoples"

of the United States of America and what was

known in 1988 as the Union of Soviet

Socialist Republics.

12. The testator intended the terms

"Union of Soviet Socialist Republics,

"Soviet Union", and "Soviet" to primarily be

descriptive of the "peoples" that inhabited

that area of the world.

13. The fact that the "Union of

Soviet Socialist Republics" no longer

exists as a political entity is of no

importance in carrying out the terms of

this charitable trust in accordance with

the intent of the testator. |

14. A charitable organization may

weer ee Onn Nae eee

g3-a

come into existence after a will has been

probated and receive a charitable bequest

under the will if such will permits the

decedent's intent to be realized and

carried out. Where a will includes a

bequest to a charitable organization not

yet in existence at the time of the

execution of the will or of its probating,

there is nevertheless an immediate gift for

charitable purposes upon the testator's

death, and if the organization is formed

within a reasonable time thereafter, it is

entitled to receive the bequest. American

Diabetes Ass'n. Inc. v. Diabetes Soc. of

Clinton Cty. (1986), 31 Ohio App. 3d 136,

509 N.E.2d 84 (1986). See also Rice v.

Stanley (1975) 42 Ohio St. 209, 327 N.E.2d

774.

15. To accomplish the purpose of a

charitable trust and to effectuate its

administration, a court of equitable

jurisdiction will direct or permit a

trustee to deviate from a term of the

trust, if it appears to the court that

compliance with the letter of the

instrument of creation is impossible. First

National Bank of Akron, Trustee, Vv. Unknown

Heirs of Donnelly, Jr. et al., 96 Ohio App.

509, 122 N.E.2d 672 (1954).

16. Where the creator of a

testamentary charitable trust has made no

provision for forfeiture, or has not made

an alternate bequest in the event that a

strict compliance with the letter of his

will is impossible, an inference may be

drawn that the testator did not intend that

the gift to charity should fail, but on the

contrary intended that if the carrying out

84-a

of his dominant purpose was possible by

varying the means and methods prescribed, a

deviation should be allowed, to meet

circumstances arising from time to time

during the existence of the trust. First

National Bank of Akron, supra. See also In

re Farren, 27 Ohio App. 2d 31, 272 N.E. 2d

162 (1970).

17. Walter E. Havighurst intended the

reference to the "Miami University

International Center" in Sub-paragraph (b)

of Item III, Paragraph G, of his Will, to

mean the "Miami University International

Center" or the "Office of International

Programs at Miami University" and the

Havighurst Will may be construed in that

manner.

18. The doctrine of cy pres operates

in the field of charitable trusts and is a

rule of judicial construction. Ina

charitable trust, where the court finds

that the settlor manifested a general

intention to give to charity, and it is

impracticable or inexpedient to carry out

the terms of the trust, the court will

execute the purpose of the settlor as

nearly as it can, according to the original

plan, under the doctrine of cy pres. See

Craft v. Shroyer, 81 Ohio App. 253, 74

N.E.2d 589 (1947).

19. If property is given in trust to

be applied to a particular charitable

purpose, and it is or becomes impossible or

impracticable or illegal to carry out the

particular purpose, and if the settlor

manifested a more general intention to

devote the property to charitable purposes,

the trust will not fail but the court will

wwe wee Leer ye er ee

85-a

direct the application of the property to

some charitable purpose which falls within

the general charitable intention of the

settlor." Restatement of the Law of

Trusts, Section 399. See also First

National Bank of Akron, Trustee, v. Unknown

Heirs of Donnelly, Jr., et al, 96 Ohio App.

509, 122 N.E. 2d 672 (1954).

20. If the primary purpose of a

charitable trust can be accomplished by

deviation from express terms in the

instrument of creation, in respect to

purely administrative matters, it becomes

unnecessary to analyze the facts in the

light of the doctrine of cy pres, and, in

doing the latter, determine whether the

donor manifested a general charitable

intent, and if so, whether the property

should be used for an approximate

charitable purpose (a purpose as nearly as

may be like the purpose stated by the

donor) when it is impossible to exactly

carry out his specific intent. See: 3

Scott on Trusts, Section 399; 2A Bogert on

Trusts and Trustees, Section 441; Heinlein

v. Elyria Savings & Trusts Co., Exr.&

Trustee, 75 Ohio App.353, 62 N.E.2d 284;

First National Bank of Akron, Trustee,

supra.

21. The language of the Havighurst

Will manifested a general charitable

intention on the part of the testator to

devote his residuary estate to charitable

purposes.

22. Walter E. Havighurst intended the

terms "Union of Soviet Socialist

Republics", "Soviet Union," and "Soviet",

as used in his Last Will and Testament, to

primarily be descriptive of the "peoples"

that inhabited that geographical area of

the world, and’ the Havighurst Will may be

construed in that manner. Within the

intent of the testator, the term "Union of

Soviet Socialist Republics" may be

construed in that manner. Within the intent

of the testator, the term "Union cf Soviet

Socialist Republics" may be construed to :

also mean "former Union of Soviet Socialist :

Republics," and the term "Soviet Union" may

also be construed to mean "former Soviet

Union."

23. It is not impossible or :

impracticable or illegal to carry out the

particular purpose of the charitable trust

created by the Havighurst Will. :

24. The heirs of the Walter E.

Havighurst have no reversionary interest in

the trust estate.

Dated: February 21, 1996

/s/ Randy T.Rogers,

Judge

87-a

IN THE COURT OF COMMON PLEAS

PROBATE DIVISION

BUTLER COUNTY, OHIO

THE FIRST NATIONAL BANK *Case No. 94-0175

OF SOUTHWESTERN OHIO,

EXECUTOR OF THE ESTATE *

OF WALTER E. HAVIGHURST Judge Randy

* Rogers

Plaintiff *

AMENDED

vs. * JUDGMENT ENTRY

OF DECLARATORY

MIAMI UNIVERSITY, ET AL. * JUDGEMENT

FINAL APPEALABLE

Defendants ORDER

* ¥ * x * * se

On December 15, 1995 this Court filed

an Opinion and Judgment Entry of

Declaratory Judgment. On December 26, 1995,

Defendants, Alan W. Havighurst and Douglas

A. Havighurst, each filed a Request for

Findings of Fact and Conclusions of Law

pursuant to Civ. R. 52. |

As stated by the Twelfth District

Court of Appeals in Abney v- W. Res. Mut.

Cas. Co., 76 Ohio App. 3d 421 (1991), Civ.

R. 52 provides:

"When questions of fact are tried

by the court without a jury,

judgment may be general for the

prevailing party unless one of

the parties in writing requests

otherwise before the entry of

judgment pursuant to Civ. R. 58,

or not later than seven days

88-a

after the party filing the

request has been given notice of

the court's announcement of its

decision, whichever is later, in

which case, the court shall state

in writing the conclusions of

fact found separately from the

conclusions of law.

a « *

An opinion or memorandum of

decision filed in the action

prior to judgment entry and

containing findings of fact and

conclusions of law stated

separately shall be sufficient to

satisfy the requirements of this

rule and rule 41(B)."

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The trial court in Abney, supra, overruled

appellants' motion for findings of fact and

conclusions of law, stating that its

written decision "was a complete statement

of the court's findings and conclusions and

fully complies with the final paragraph of

Civ. R. 52." The Court of Appeals upheld

the trial court in Abney.

The purpose of separately stated

findings of fact and conclusions of law is

to enable a reviewing court to determine

the existence of assigned error. Davis v.

Wilkerson, 29 Ohio App. 3d 100 (1986). If

the court's ruling or opinion, together

with other parts of the trial court's

record, provides an adequate basis upon

which an appellate court can decide the

legal issues presented, there is such

substantial compliance with Civ. R. 52.

Stone v. Davis (1981) 66 Ohio St. 2d 74.

a

Although this Court believes that the

fifteen (15) page opinion previously filed

in the case sub judice sufficiently sets

forth the basis of this court's ruling, the

court has on this date filed herein its

separately stated Findings of Fact and

Conclusions of Law in response to the

requests of the Defendants, Alan W.

Havighurst and Douglas Havighurst.

The Court also notes that the original

Opinion did contain a typographical error

in that this matter did come before the

Court for trial on September 5 and

September 6, 1995 and not September 4,

1995, as incorrectly typed in the original

Opinion. Pursuant to Civ. R. 60(A) the

Court does hereby correct the Opinion and

Judgment entry filed herein on December 16,

1995. In all other respects the court's

Opinion and Judgment remain the same and

are incorporated herein by reference.

IT IS THEREFORE ORDERED, ADJUDGED AND

DECREED that the trust created by the

provisions of Item III, Paragraph G of the

Last Will and Testament of Walter

E.Havighurst is hereby declared to be a

charitable trust under the law of the State

of Ohio, and it is

FURTHER ORDERED, ADJUDGED AND DECREED

that the term "Union of Soviet Socialist

Republic" as used in the Last Will and

Testament of Walter E. Havighurst shall be

construed to also mean “former Union of

Soviet Socialist Republics”, and the term

“Soviet Union” as used in the Last Will and

Testament of Walter E. Havighurst shall

also be construed to mean “former Soviet

Union,” and it is

FURTHER ORDERED, ADJUDGED AND DECREED

THAT THE TERM “Miami University

International Center” as used in Sub-

paragraph (b) of Item III, Paragraph G of

the Last Will and Testament of Walter E.

Havighurst shall be construed to mean the

“Miami University International Center” or

the “Office of International Programs at

Miami University,” and it is

FURTHER ORDERED, ADJUDGED AND DECREED

That the charitable trust created by the

provisions of Item III, Paragraph G of the

Last Will and Testament of Walter E.

Havighurst be fully funded and carried out

in accordance with its terms and the

Executor of the Estate of Walter E.

Havighurst is hereby authorized and

directed to distribute the residuary of the

Havighurst estate to THE FIRST NATIONAL

BANK OF SOUTHWESTERN OHIO, Monroe, Ohio, IN

TRUST NEVERTHELESS, for the uses and

purposes set forth in Item III, Paragraph G

of the Last Will and Testament of Walter E.

Havighurst, and it is

FURTHER ORDERED, ADJUDGED AND DECREED

that the terms of the charitable trust, as

set out in the Last Will and Testament of

Walter E. Havighurst, create no

reversionary interest in the heirs of

Walter E. Havighurst, and it is

FURTHER ORDERED, ADJUDGED and DECREED

that the Amended Counterclaim filed by the

Defendant, Alan W. Havighurst, is

dismissed, and it is

FURTHER ORDERED, ADJUDGED and decreed

that the Amended Counterclaim filed by the

RES ges oc alin Se eS el ig

S9l-a

Defendant, Douglas A. Havighurst, is

dismised, and it is

FURTHER ORDERED, ADJUDGED AND DECREED

that the Plaintiff, as the Executor of the

Estate of Walter E. Havighurst shall pay

the costs of this action.

Dated: December 15, 1965 /s/

Randy T. Rogers,

Judge