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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix B
- **Published:** January 1, 1998
- **Citation:** 525 U.S. 825

## Text

30-a

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

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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 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

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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 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

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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

60-a

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,

63-a

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

65-a

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 ‘

67-a

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

68-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 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.
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

ln outa

or

sa Peis sedate

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1724%3A02. Public record. Not legal advice.