IN THE SUPREME COURT OF OHIOVICKI RADZISEWSKIEXECUTRIX ET ALAppelleesV - PDF document

1 IN THE SUPREME COURT OF OHIOVICKI RADZIS
IN THE SUPREME COURT OF OHIOVICKI RADZISEWSKI,EXECUTRIX, ET ALAppelleesV.AppellantOn Appeal from the Cuyahoga CountyCourt of Appeals, Eighth Appellate DistrictCourt of Appeals No. 12-097795Supreme Court No.:^4 1MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT ZUZANNA SZYMANCZAKTeddy Sliwinski, Esq.(S. Ct. No. 0024901)Counsel of Record(216) 641-9191Radzisewski, ExecutrixRadoslaw Kowalski96-300 ZyrardowPro Se,; Appellee96-300 ZyrardowJUL 2 5 '61012CLERK OF COURTSUPREME CUURi UF OHIORoss S. Cirincione, Esq.(S. Ct. No. 0024774)Counsel of Recordfor AppellantZuzanna Szymanczakjm_ 25 2ua2SGs c6tit il t;JURi Pro Se; AppelleeMalgorzata Polkowska-Sulek9600 Zyrard

2 owPro Se; Appelleeul. Kapitana Hali 6 m.
owPro Se; Appelleeul. Kapitana Hali 6 m. 9 PolandPro Se. Appellee99-320 Zychlinul. WarynskiegoPro Se.; Appellee96-300 ZyrardowPro Se, Appellee TABLE OF CONTENTSPageEXPLANATION OF WHY THIS IS A CASE OF PUBLICARGUMENT IN SUPPORT OF PROPOSITION OF LAW ........................ 6Proposition of Law No. 1. :In construingthe language of a will acourt can onlyconsiderthe four corners of the will toconstrue theintent and may not insertmissing language in the will basedof extrinsic facts .................................................. 6assert those objectionsas assignmentsof error in an appeal .................. 15e- TABLE OF AUTHORITIESCases: PageBarr v. Jackso

3 n;2009 - 5135, 08 CAF 09 0056 ..........
n;2009 - 5135, 08 CAF 09 0056 ......................................... 2Cleveland Trust Co., Trustee v. Frost,et al.;166 Ohio St. 329 (1957) ............. 9Estate ofHersh v. Schwartz;195 Ohio App. 3d 295 (2011) ........................ 14Hoppes v. American National Red Cross,et al;129 N.E. 2d 851 (1955) .............. 10,11,13Moore v. Deckeback;46 Ohio App. 381,383 .................................................. 8Niedler v. Donaldson;9 Ohio Misc., 224 N.E. 2d 404 ................................... 2,11Shay v. Herman;85 Ohio App. 2d 441, 83 N.E. 2d 237 (1948) ......................... 2Sommers v. Doerson;115 Ohio St. 139, 150 (1926) .................

4 .................... 7,8, 10Townsend Exr
.................... 7,8, 10Townsend Exr's v. Townsend;25 Ohio 477 (1874) ............................................ 1,11,13Treaties and Compacts:Conventionand Protocol Between the United Statesof America andThe PolishPeoples Republic- May 31, 1972; Article 26 .............................. 4Statutes and Rules of Procedure:Ohio Revised Code Sec. 2105.06 ..................................................................... 2Rule 53, Ohio Rules of Civil Procedure ........................................................... 15 I. STATEMENT OF EXISTENCE OF SUBSTANTIAL WHY THE INSTANTIS OF PUBLIC OR GREAT GENERAL INTERESTgoverning the distribution of assets

5 by a decedent. Appellant respectfully su
by a decedent. Appellant respectfully submits thatThis casepresents a questionof public orgreat generalinterest. The general publiccertainly has an interest in the reasonableand consistent application of the state's lawse past onehundred-tirty-eight (138) years. It isIn the instantcase, under the guise of "construing" the language of theeces of11, the Courtof Appeals instead inserted a provision in the willto convey decedent's interest in two pintent is to be gleaned from the wordsused".Townsend's Exrs. v. Townsend, 25Ohio477(1874).Supreme Court case by analyzing not the intent of the decedent as expressed by the words in theand aThe Court ofAppealsthen

6 proceeded to ignore the requirements of
proceeded to ignore the requirements of tbis venerable1 specific devise of the real property in Poland, the Court of Appeals ignoredthe provisions ofthe Polishambiguity in the will, supposedly "not for the purpose of showing the testator's intention, but toassist the court to betterinterpretthat intention from the language used in the will". [CitingBarr v. Jackson,5" Dist. No. 08 CAF 09 0056; 2009-Ohio-5135 citing Shay v.Herman;Ohio App. 441, 83 N.E.2d 237 (1948).]However, although the Court citedrationalizationof the Court's ac85the correct standard of construction, it failed to applyion in exceeding the proper constructionof the will byimproperly inser

7 ting a provision in the will thatis not
ting a provision in the will thatis not present and simply did notNeidler v. Donaldson;9 Ohio Miso. 208, 224 NE2d 404 (Probate, Seneca Co., 1967) the Courtstated:a will which, for whatever cause, hehimself did not make."The relevant portions ofdecedent's will states:"I Zofia Sulek,...do hereby make, publish and declare this instrument to be my LastITEM II DIRECT that all of my debts, funeral andadministrative expensesbe paid out of my2 OLSZEWSKA-SULEK, RADOSLAW KOWALSKI, WIESLAWA SAS, IRENAand similar articles of tangible personal belongings I give and bequeath [sic] to my famtlyTresiding in Poland: MALGORZATA POLKOWSKA-SULEK, KAExecutorout of my residua

8 ryestate... .S1talcttLlltc.ITEM IIIPOLKO
ryestate... .S1talcttLlltc.ITEM IIIPOLKOWSKA SUI EK KATARZYNAOLSZEWKA-SULEK, RADOSLAW KOWLASKI, WIESLAWA SAS, IRENAI direct that the Real Property located at 144 East Dawnwood, Seven Ilills, Ohio be sold__ac.:,...a,.. 1t4Atr_ni77ATA^^.1Pn1.KRWRKA-ITEM IIanu me t)luG.ecub uiviucu cu11vu5,uySULEK, KATARZYNAOLSZEWSKA-SULEK, RADOSLAW KOWALSKI;which states that all "taxes levied or assessed by reason of my death, shall be paid by mythe Will. The onlymention inthe will to aresiduary clause is located in Item I ofthe Willher `residuary estate', however she specifically bequeathed only her Ohio property at the same3 bequeathed her property in Ohio "in fee simple

9 ", which are words that connnonly refer
", which are words that connnonly refer to realopropertyrather an o y perso p p ,tnal ro erry Polen 92 Ohio St. 3d 563 565-566,752 N.E.o. ,(2001), citing Hamilton v. Pettrfor,languageto justify the use ofan unenforceable,ineffective and revoked handwritten will written by the testator in Polish as justificationnevertheless decided this evidence, even in lightof the affidavit of theattorney who had drafted Sulek's Ohio will was somehow `inconsistent' with the languageimproperly adopted the magistrate's decision. Appellants' issues tor review ; accoruzngiy mcthis action,is the only validwill bothin Ohio and Poland since the decedent had revoked all previou

10 s wiilsid t e(SeeThe Convention and Prot
s wiilsid t e(SeeThe Convention and Protocol between the Unrted SP lish Peoles RepublicMay 31 1972Article 26).oII^. COMBINEDSTATEMENT OF THE CASE AND FACTSOn December 16, 2009, Appellee Vicki Radzisewski was appointed as Executrix of the2009 EST 0153693. Item II of the subject Will provided for a specific bequest of "household"for the sale of decedent'sreal propertylocated at144 East Dawnwood, Seven Hills, Ohio with aIrenaStankiiewicz and Agata4 ymor personalproperty of the decedent.2009 ADV 016606 on February 23, 2011. All beneficiarics under the Will were joined as' I h' h b th M' o law S czak Allparties werezappeared and testified. Exhibits introduced

11 included a certified copy of the Will,i
included a certified copy of the Will,issued her decisionon-0ctober 6, 2011Appellants below, Appellee beneficiaries herein, filed an untimely objection to theMagistrates decision on October 25, 2011. Nonetheless, Probate Court Judge Russo, after5 Magistrate's dbeneficiariesecision, overruled the objections of the Appellee beneficiaries anddelineatedby Appellees as aA. IN CONSTRUING THE LANGUAGE OF A WILL ACOURT CAN ONLY CONSIDER TI3E FOUR CORNERS OF THE.WILL TO CONSTRUE TI3E TESTATORII In particularwhether the trial Courterred in omitting duringtheLast Will the`I ive devise and bequest [sic]Court of Appeals issued its judgment entry reversing and remand

12 ing the case to the ProbateNotice of App
ing the case to the ProbateNotice of Appeal along with the instant Memorandum in Support of Jurisdiction.III. Law and Argument.all of my household, covered in Item II of the aforementioned Will, in situation, where(or at least real properties)of Zofia Sulek?"6 "household" in Item II olie will [immediatelyfollowed bya listing of various items of] included alllreal property olPoland. The word "household"ed by testatrix including her real property insince underto Anot necessary to specifcally leave the Sthe Courtof Appeals analysis Item II of the will effectively transfe"household"i,eed the testatrix'sthAccording to Appellees (Appellants below), and as impl

13 ioitly found byCourt of Appeals in speci
ioitly found byCourt of Appeals in specifically resolving this issue in favor of thethe term "household" has been improperly expanded beyond any reasonable and rationaldefinition under Ohio law to include not only all real estate owned by the testatriSomrners v. Doersam;115 Ohio St.139, 150 (1926), the Courtstated:"A testator is`--presumed to use the words in which he expresses himself in his will insense,and in construing the will the words employed areto taken in,that the testator intended to use them in a different sense, or unless a reading of the words in7 show a clear intention on the part of the testator, they must be given that meaningas outlined

14 in theSommerscase,id.. TheCourt of Appea
in theSommerscase,id.. TheCourt of Appeals concluded that Testatrix Sulekwill no otherpersons but appellees.Thus, coupled with the bequest of the "household" goodsto the beneficiaries named in the will this "evidenced" her intent to also convey the real estateiP.a,suxdthP Pnl;ch will not been revoked bv the testator by the subsequent Ohio will, itWill which is the subject of this action. As stated by Magistrate Williams at page five of her"Magistrates Decision":"It is theduty of theCourt to construct a will. However,the Court mayonly construethe language in the will. The Court cannot amend, insert, or interpolate a provision which wasnot writtenin the wi

15 ll". (CitingMoore v. Deckeback;46 O.A. 3
ll". (CitingMoore v. Deckeback;46 O.A. 381, 1933).s construedin the OhioWill justifying its conclusion that the decedent disposed of her realproperty in Poland. There is szmply no latent amb?.gurty m the tanguage use od ' th 'll fjustify theextensive extrinsic evidenceused by the Court of Appealsto constraethe termparcels ofreal estatelocated in Poland.To follow the Court's logic, the bequeathing of personalproperry and household goodscontaininga transferof property under a residuaryclause opensthe door for an extensivereview by aCourt of Appealsof disputed extrinsic"facts" to supply themissing language inregard to disposition of other unmentioned real p

16 roperty owned by the decedent. In effect
roperty owned by the decedent. In effect, theCourt inCleveland Trust Co. Trustee v. F}-ost, et al.; 166 OhioSt. 329 (1957)recognized andtatnended thesubjectwill. Thas isnot e awuOhio Scited thelimitations in will construction cases.As stated by this Court InCleveland Trust,idie language employedin the will..."The Court of Appeals review in the instant case turns a deaf ear to legal precedent in therenders the R.C. Sec. 2105.06 statutory scheme for the transfer of property not otherwisetransmissionof property in Ohio. Ohio statutes provide the rule of law which governs the9 disposition of propertyin the absenceof a valid residuaryclause in awill. hi this

17 case theProbate Court validly found that
case theProbate Court validly found that due to the lqck of a residuary clause and aspecificdevise ofbp the Supreme Court inSommers,id., the attempt by the Court of Appeals to avoid theof the case law in order to avoid the resulting impact of R.C. 2105.06 is invalid. As indicatedin writing standsas an insuperable barrier againstcarrying the intention thus proved intoexpressed in the willmay be proved by extrinsic evidence, the rule of law requiring wills to beexecution.instant case,the Court of Appeals went far afield in order to justify itsthe languageemployed havebeen but what was theHoppes v. American National Red Cross, et al.128 N.E. 2d851 (Fayette

18 County, 1955):"While, as shown inthe pre
County, 1955):"While, as shown inthe preceding section, the purpose of construction as appliedto [a]that intention is not that whichby thelanguage of the will.10 have done, but what didhe do, and what did he mean by the words he actually employed. Ifthe court cannot qualify or controlthe language by conjecture or doubt arising from extraneousfacts. The testator must beHoppeswas merely reiterating that which has been Ohio law since 1874Townsend's Exr's.,,succinctly stated that a testator's intent"must be gleanedby thewords used": supra.(emphasis added).(See alsoNeidler v.In the case,sub judice,the Court of Appeals did not limit its review of the will to t

19 heAppeals amendedthe Will. Thisbecomes c
heAppeals amendedthe Will. Thisbecomes clearwhen thelanguage of the will iscompared tohad been specificallyrevoked bythe will which is the subject of this action.The Court ofOhio. The Court of Appealsstates:"According to the evidence supplied at the hearing, an additional will handwritten bySulekin Polish existed, but Sulek died before she submitted it to a PolishCourt. The hand-written will, like her Ohio will, disposed of all of her property in Poland to the same personsOhio will."11 There aretwo problems with the statemenof the Court of Appeals as cited above. The firstproblem is that Exhibit "C" which was offered at the Magistraewillhand-d i ned Zofi

20 a Sulekresiding at number144 E. Dawnwood
a Sulekresiding at number144 E. Dawnwood Dr., Sevens" thon September 8, 2009.The preamble to the Ohio Will executed onSeptember 8, 2009priorto the execution of the Will which is the subject of this caseannul previous testaments"was executed on August 25, 2009.erunHills... equeath my estates wherever they are to the fantily residing in Poland at the same time Ideclare this instrumentto be my Lasthereby revoking and making null and voidall other Wills heretoforema(tepy me',.(emphasis added).thetime she executedthe Ohio Will.Once it was revoked,the August 25, 2009 Will had norelied on extsic huage containedin a previous willhad been specifically revoked and

21 rendered void by thedecedent atthe probl
rendered void by thedecedent atthe problems inherent when a Court attempts to discern intent from extrinsic language not12 °statement that "the hand-written will, like her Ohio will disposed of all of her propertyin Poland to the same persons named in her Ohio Will". Actually, as pointed out bysons. In thataffidavit,areal properties and personal properties tangible and intangible to her familyshould have been `n order to devise the Polishreal estate to the Appellees,not what the language inAs indicated previously herein inHoppes,supra and in the seminalTownsend's Exr's.,supra, the Court of Appeals went beyond the13 As noted earlier in this Memorandum the

22 "issues" raised by the Appellee-Benefic
"issues" raised by the Appellee-Beneficiariesto the Court of Appeals in Iieu of Assigmnents of Errors inadvertently demonstrate the lack ofthe Court of Appeals, Appelleebeneficiaries claim that the Probate Court erred since Item II of"I give devise and bequest [sic] all of my household, clothing, jewelry, books, works ofterm "household" in that itemis ambiguous. Appellant respectfully submits that thisxerm isnot ambiguous. Definitions of the term "household goods" was reviewedby the Court inEstate of Hershb. Schwartz;195 Ohio App. 3d 295; 2011-Ohio-3994 (Hamilton Co., , 2011).The Court stated:maintenanceand upkeep ofexemptions statute...the court e at o

23 use o goo phowever, disagreed with this
use o goo phowever, disagreed with this approach when interpretingthe nearly identically worded federalUnited States BankruptcyCourt for theSouthem Districtot (Jhio;anothecountry, i.e., Poland. The Court of Appeals did not specificallycomment on this"issue" since it clearly illustrates the tenuous and invalid basis upon which the ambiguity14 Court of Appeals erred in reaching that conclusion.B. THE FAILURE OF THE APPELLANTS TO I ILE TIMELY OBJECTIONSCOURT OF APPEALS FROM CONSIDERING TIIE "ISSUES" BELOWThe Magistrate issued her opinion and order on October 16, 2011. Appelleea party shall not assign as error on appeal a court's adoptionof any factual findi

24 ng or legal conclusion of a magistrate.:
ng or legal conclusion of a magistrate.:.unless the party has objected to thatV. CONCLUSIONand greatgeneral interest.involves and presents matters of public15 Respectfixlly Submittted:Ross S. Cirincione,Co. L.P.A.Counsel of RecordCastleton Building5306 Transportation Blvd.,Garfield Heights, Ohio 44125(216) 587-2120(216) 587-2131 "fax"rsc@rgm-law.comfor Agpellant SzymanczakSERVICESzymanczak" was served upon Counsel for Appellee Executrix, Teddy Sliwinski, Esq. atof July, 2012: Radoslaw Kowalski, 96-300 Zyardow, ul Kosciuszki 15/17 m.Poland;5800 FleetAve.,Cleveland, Ohio 44105 and the following Pro Se Appellees on this'dayKatarzyna Olszewska-Sulek 96-300 Z

25 yardow ul Mireciego 36 m 18 Poland; Malg
yardow ul Mireciego 36 m 18 Poland; Malgorzatam. 27 Poland.^ EIGHTHAPPELLATE DISTRICTJC9UTRLNALENTRY ANDOPINo. 97795ONVICKIR. DZISEWSK1,EXECUTORPLAIvs,fFFS- PELLEESMIROSLAW ^ZY ANC AK, ETDEFENIJANTSAPPE Az ^�JUDGMENTRE ;NT:i^EDCivil Appeal from theBEFORE:Roccrs, J.,Stewart, P.J., and Keough, J.RELEASEDAND ^OURNAIIZEDP Junei4, 2612A -1 KENNETH A. ROCCO, $]..This is an appeal from a judent af;the the Cuyahoga CountyCourt of Ccam.anou Plea.s,Prvbate Division ("the probate court"), in an action to�Saa, Irena Sta ':ewis:z, and Agata. M , . iazewska who are fa u ffly sr^aesnbers andfriends of Sulek who still live in StxleYs nativeDu.ntry of Pola

26 nd, appeal fromthe order that adccgated
nd, appeal fromthe order that adccgated the magistrate's dec%sican t t; because the witl contained" rest and remainder" elause, Sulek's residuary esGata went to her nextt-of-k:irx,{ f,,2} Appellants present two "issues for revi.eyr."z They assert the probatecourt improperly interpreted Sulek's intent, as ressed in herCousetlitently,their "issuesfor review"are resolvedin their favor, and the'Zuzanna S7ymanczs.k is the wife ofZod.a's daeeased nephew, Miroslaw, who was'[e - 2 that Vicki. Radzisewski, executor of Sulek's�estate, filed this action see ' ` g construction of Sulek's will, be us^ Sulek at theLly Sd 0t-J.tieportions of S les will, vrhieh w

27 as prepared by ar,a. . r . . 3'g state:I
as prepared by ar,a. . r . . 3'g state:I, ^ofia Sulek,* !do hereby make, publish and declare thisbe pairl outof myestate * * * cI any dall* * * t e$,I DIRECT that; all of my debts,funerald a. ^ ^^i ` ts ativeExecutor out of my r ' iduary estateI'i'EM IfI give, devise ami bequeath all of my household, clothing,-^ ,kg ^ ^ DOS AWHOW' KI^W WARENA STAl^^ ^Z and AGATA MACISZEWSsh : e and share. °ke,ST. .. .KTE. ._.^Z and AGATAS , preAecease meor fail to surviveme ** *, leaving child or children surviving said child or ehildren shall take the share.T AOI.,S & I.T IK, ^^ WKO - ,LAWA SAS, IRENA STANKMV , CZ andAGATACISZEWS . A,s2^ e and share alike.Appellee Zuzan

28 na, Miraw Szyma,ZiLles widow, fil.ed a N
na, Miraw Szyma,ZiLles widow, fil.ed a Nprope rin Poland to Zuza a's husband, Su1ek.'s nephew . ` , ]:aw, "in accordancesubmitted to the probate court on December 16, 2CI09 was "not contested," nconsistent" with the other evidence submitted at the hearing. Basedupon this and upon the lack of a phrase in Sule)s:'li, will that bequeathed the{112 }Agpellants filed objections to the magistrate's decision. Appellantslack.ed a basis in fact.{113 }The probate court eventua.lly issued aic prcler in which it overtimely appeal from the probate court aard.ere They gresfor review.erredin failing to expressly say, that. ,taO-Aec^ AU 9fSuiek, Radoslaw Kowalski, WiSas,

29 Iron^ Staralsiewiez, lam.dlIn particula
Iron^ Staralsiewiez, lam.dlIn particularwhether the trial Court eirred in omitting during6-s-r covered in Item FI of the aforementioned Will, in situation, wls.ere-With respect td a judment involving the construction of a', anltmrd,o,187 Ohio App.3d 9, 2010®Ohier-1758,tg will interpretation is that, "the sole purposeof the courtshoaalcl be to s.scettas.n and carryout the intention of the testator."Polenv. :er, 32 Ohio St.3ei 563, 762 N.E.2d 258(2001), ci: ° g(3tsverv.BankDayton,N.A., 60Ohio St.3d 32, 34, 573 N.E.2d 55(1991), and Townsend's477 (1874),paragraph one of the syllabus. Thisintent is to be gleaned from, the words used. Id.s citing Townsend's E

30 xrs.,paragraph two of the syllabus'„A -(
xrs.,paragraph two of the syllabus'„A -(a The court may consider extrinsic evidOnce to determine thegeused in the will createsSandy v.kcruh,oE (19€32), 1 Ohio[TnicanSavings & 7'rust Ccs. (1982), 69 Ohio St.2d 38^, 23 O,0.3d 350, 43.3Ola€rer.J127} In this case, the magistrate's decisiqn indicates that extrinsicevidence was corasi.dered..Michelseaz-Caldwel l v. Crky,6th Dist. No. WD-08®€301,A latent ambiguity is one that is not a3pparent from thelanguageusedorfrom the face of the instrument. Cankte v.(^bnkte,31 Ohio App.2d 44,interpre.tatiDnor aequally wellto twocrrmoredifferent subjectsorthings.Id. (Emphasis added,)heused to resokve a latent ambiguity in

31 aId.Where thereinterpretthat intention
aId.Where thereinterpretthat intention from the language used in the will,Barr v. Jackson,5th. Z7sst. No. 0$ CAF 09 0056, 2,009-Ohio-5135, T, 36,citingShay v. Herman,85 OhioApp. 441, 83 NX.2d 237 {1948}.{1201 In this case, $ulek prov-zded in her will that her i eral expensesder" of her Ohio prcrperty at the same time when she spe ' cslly namedHamilton v.Pettifcsr,165 Ohio St, 361, 135N.E.2si 264 (1956).{121} A r' g to tlie evidence sea.pplied at the la.e aring, additionwill handwritten by Sulek in ^cali.sh existed, but Sulek died before she submittedlter property in Poland to the same persons named in her Ohio wilLthe affidavit of the attorney wlz.o had

32 drafted Sulek'sOhiowill, was somehowerr
drafted Sulek'sOhiowill, was somehowerred. Shay, 85 blalio App. 44!, 83 N.E:2d 237 (1948),Harrealton,Henson v.Casey, 4th Dist. No. 04CA9, 2004-C3h%o-5848, 122. {1231 Because the magistrate failed to correctly apply the law to the factsordered that appellants recover from appell.ee costs herein taxed.The court finds there were reasonable graundIs for this appeal.ordered that a special mandate be sent ta said court to carry thisProcedure.KENNETH A. ROCCO, JUDGEMELODY J. STEWART, f',J., and.KATHLEEN ANN KEOUGH, J., CONCUR A OR "^..' FOR APFELL [ SP.O. Box 391531ATTORNEY FOR APF'EJ^Teddy SliwinskiEA9dt9 .tOt'RNAt,EoJUN 114 2012 IN THE COURT OF COMMON PLEASP

33 ROBATE DIVISIONVICKI RADZISEWSHI,Executr
ROBATE DIVISIONVICKI RADZISEWSHI,Executrix of the Estate ofPlaintiff,et aL,Defendants.CASENO. 2011 ADV 0166006JUDGE ANTHONY J. RUSSOThis cause came on to be heard before Magistrate Williams on October 6, 2011 on aComplaint for Construction of Willfiled February 23, 2011 by Teddy Sliwinski, attorney forPlaintiff. Present at the hearing were Executrix, Vioki Radzisewski, and her attorney, TeddySliwinski. All interested parties were notified of the hearing. No transcript of the hearing wasCourt to provide instructions concerning the Last Will and Testament of Zofia Sulek, statingthat the Will does not contain a rest and remainder clause and seeking the cove

34 nant constructionA Magistrate's Decision
nant constructionA Magistrate's Decision was filed on October 6, 2011 that recommended, based on theDO personal belongings as well as the proceeds from the sale of the East Dawnwood property toMalgorzata Polkowska-Sulek, Katarzyna Olszewska-Sulek, Radowslaw Kowalski, Wieslawanot contain a residuary clause, and that therefore the residuary estate of Zofia Sulek should beSeeNeidlerv. Donaldson,(1967 O. Misc. 208); O.R.C. Ann. 2105.06. Mr. Sliwinski filed a Suggestion ofto Substitute Party, which the Court granted on June 3, 2011, allowing Mr. Szymanczak'sPolkowska-Sulek, Katarzyna Olszewska-Sulek, Radowslaw Kowalski, Wieslawa Sas, IrenaStankiewicz and Agat

35 a Maciszewska, arguing that they should
a Maciszewska, arguing that they should be the residuary beneficiaries ofintended to distribute all of her household, clothing, jewelry, books, works of art, similar articles21\`^ 2 of personal belongings as well as the proceeds from the sale of the East Dawnwood property totherefore the residuary estate of Zofia Sutek should be distributed to her next of kin, Miroslawresiduary estate of Zofia Sulek should be distributed to the Estate of Miroslaw Szymanczak.The Court fiu-ther finds that the Objections to the Magistrate's Decision are not welltaken and should be overruled.It is furtherORDEREDthat the OIt is further ORDERED that,^he Clerk of Court shah ser

36 ve upon4l partienotice of thisjudgment a
ve upon4l partienotice of thisjudgment and date of entry pursuant toPROBATE J[JDGE-11.L -='3 PR' BA^ E CO ^ URTIN THE PROBATE COURTOCT ®62ti11CUYANOGA COUNTY,, 0.Executrix of the Estate of jZofia Sulek, Deceased, ))et al., ))Defendants.) MAGISTRATE'S DECISIONvs. ))MIROSLAW SZYMANCZAK, )This matter came to be heard on July 5, 2011 ona Complaint for Constructionfiled February 23, 2011 by Teddy Sliwinski, attorney for the plaintiff. Present atthe hearing were Executrix, Vicki Radzisewski, and Teddy Sliwinski, representing Ms.FACTSZofia Sulek died testate on November 23, 2009. Vicki Radzisewski wasDOCKETED Testament of Zofia Sulek, stating that the will does

37 not contain a rest and remainderclause
not contain a rest and remainderclause and she seeks the covenant construction of the will so that she can perform herItenis II, III,and IV of the Last Will and Testament of Zofia Sulek provides:of art, and similar articles of tangible personal belongings I give and bequeath to myITEM III"In the event that MALGORZATA POLKOWSKA-SULEK, KATARZYNAITEM IV"I direct that the Real Property located at 144 East Dawnwood, Seven Hills, OhioLAWOhio RevisedCodeSection 2105.062107.46Townsendv. Townsend, (1874) 25 O. S. 477 Moore v. Deckeback, (1933) 46 O. A. 381CONCLUSTION AND RECOMMENDATIONThe will is a very important legal document. It expresses the Testatrix's inte

38 nt asOhio Revised2ode Section2107.46 pro
nt asOhio Revised2ode Section2107.46 provides that a fiduciary may file an action in Probate Courtgainst other parties and ask for direction of the Court conceming the property to betechnical, in their ordinary sense, unless it appearfrom the context that they were used by themay be resorted to, insofar as they can be made testator's words, but for no other purpose."Townsend v. Townsend, supra.It was apparent from a review of theItems II, IIIand IV of the Last Will andTestament of Zofia Sulek, that she intended to distribute all of her household, clothing,jewelry, books, works of art, similar articles of personal belongings as well as theproceeds from th

39 e sale of the East Dawnwood property to
e sale of the East Dawnwood property to Malgorzata Polkowska-Sulek,Katarzyna Olszewska-Sulek, Radoslaw Kowalski, Wieslawa Sas, Irena Stankiewicz andAgata Maciszewska.It was the plaintiff's contention that Ms. Sulek wanted all of her estate to bedivided equally among the persons named underItems H, IIIand IV of her will. Ms.stated that Ms. Sulek was not close to Miroslaw Szymanczak.icensed attorney in the State of Ohio. She further stated that she drafted the decedent'sill. The affiant further stated that during the execution of said will it was the intent ofangible and intangible, to her family and friends in Poland.d devise all of her properties to the

40 following: Malgorzata Polkowska-Sulek, E
following: Malgorzata Polkowska-Sulek, Exhibit B was a copy of the Last Will and Testament of Zofia Sulek, Exhibit Cresiding at number 144 E Dawnwood dr Seven Hills;25`h August 2009...Below there are the surnames, names and addresses2. Katarzyna Olszewska Sulek...4. Wieslawa Sas...5. Irena Stankiewicz...."that it was the intent of Ms. Sulek to leave her entire estate to the six parties identifiedIt is the duty of the Court to construct a will. However, the Court may onlyconstrue the language in the will. The Court cannot amend, insert, or interpolate a case, there was no operative sentence or phrase within the Last Will and Testament ofZofia Sulek bequea

41 thing or devising the decedent's residua
thing or devising the decedent's residuary estate to the six partiesMaciszewska are not entitled to an equal share of the decedent's residuary estate.At the time of the decedent's death, she was the owner of real estate in Poland.There is no dispute that the Testatrix did not dispose of the real estate in Poland in herItems II, IIIand IV of herNeidler v. Donaldson,supra.Ohio Revised Code Section2105.06provides that when a person dies intestate and there are no surviving spouse,children, or parents, the decedent's estate shall pass, to her brothers and sisters, whetherTHEREFORE,based on the evidence presented and applicable law, it is therecommendation of

42 this Magistrate that the residuary esta
this Magistrate that the residuary estate of Zofia Sulek be stributed to her next of kin, Miroslaw Szymanczak. It should be noted that Mr.Sliwinski filed a Suggestion of Death on May 25, 2011, stating that Mr. Szymanczak diedPursuant to Civ. R. 53(D)(3)(b)(iv), a party shall not assign as error on appeal anot specifically designated as a finding of fact or conclusion of law under Civ. R.Civ. R 53(D)(3)(b).I2DEXTERH. WILLIAMSCOPIES 1VIAILED TO:5800 Fleet AvenueZuzanna SzymanczakUl. BohaterowWarszawy 136/796-300Zyrardow, Poland Malgorzata Polkowska-Sulek9600 ZyrardowKatarzyna Olszewska-Sulek96-300 Zyrardowadoslaw Kowalski96-300 Zyrardowul. Kosciuszki 15/1

43 7 m. 37 PolandWieslawa Sas96-100 Skierni
7 m. 37 PolandWieslawa Sas96-100 SkierniewiceIrena Stankiewicz99-320 Zychlinul. Warynskiegogata Maciszewska96-300 Zyrardowul. Srodkowa 25 m. 27 Poland PROBATE COURT OF CUYAHOGA COUNTYDIVISION OF THE COURT OF COMMON PLEAS1 LAKESIDE AVE. W.ANTHONYJ.RUSSOPRESIDING JUDGELAURA J. GALLAGHEROctober 6, 20115800 Fleet AvenueIn re: Vicki Radzisewski, Executrix of theEstate of Zofia Sulek, Deceased vs.Case No. 2011 ADV 0166006JOHN R.HOMOLAKCHARLEST. BROWNCHIEF MAGISTRATEDIRECTOR OFDear Mr. Sliwinski: -and guidance, please referto the Ohio Rules of CivilVery truly yours,Orlanda DeFiore/odcc: Zuzanna Szymanczakcc: Radoslaw Kowalskicc: Wieslawa Sascc: Irena Stankiewic