COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71117 GHEORGHE UNCROP, ET AL. : : Plaintiffs-appellants : : JOURNAL ENTRY -vs- : AND : OPINION RICHARD C. KLEIN, TRUSTEE : : Defendant-appellee : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 24, 1997 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Probate Court Division Case No. 1118486 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: For Defendant-Appellee: JOHN R. VINTILLA, ESQ. RICHARD C. KLEIN, ESQ. 4405 Valley Forge Drive 1111 Ohio Savings Plaza Cleveland, Ohio 44116-2826 Cleveland, Ohio 44114 For Attorney General For National Institutes Betty Montgomery: of Health: SHERRY M. PHILLIPS, ESQ. ALEX ROKAKIS, ESQ. ASSISTANT ATTORNEY GENERAL ASSISTANT U.S. ATTORNEY Charitable Foundations Sec. 1800 Bank One Center 101 East Town Street, 4th Fl. 600 Superior Avenue Columbus, Ohio 43215-5148 Cleveland, Ohio 44114-2600 - 2 - DYKE, J.: Plaintiffs, Gheorghe Uncrop, Vasile Uncrop, Ioan Uncrop, Adela Uncrop, Maria Toma and Elena Filip, appeal from the order of the trial court which permitted the Attorney General of Ohio to intervene in plaintiffs' action to terminate a testamentary trust, then vacated the judgment rendered in that action. For the reasons set forth below, we affirm. Plaintiffs are the beneficiaries of a testamentary trust established in the last will and testament of Elizabeth Papuk who died on October 6, 1980. Under the terms of the trust, income from Papuk's property is to be given to the children and great- grandchildren of Papuk's sister, Eugenia Uncrop. Upon the death of the last grand-niece or grand-nephew, the principal was to be given to the National Institutes of Health or other exempt organization engaged in research of crippling neurological diseases. On July 24, 1995, plaintiffs filed this complaint for declaratory judgment against Richard C. Klein, trustee under the will of Elizabeth Papuk, and the National Institutes of Health seeking to terminate a testamentary trust created in Papuk's will and to obtain the principal of the trust. In relevant part, plaintiffs alleged: *** the relevant provisions of the decedent's will are: It is my desire to assist and benefit my nieces, nephews and grandnieces and grandnephews, who are the children and grandchildren of my sister Eugenia Uncrop, of Romania, realizing, of course, that Romania is Communist dominated and that the chances are almost sure, that if my property is left - 3 - to them outright they would probably not receive the benefit of it. It is with that realization in mind that I give, devise and bequeath the rest and residue of my estate real, personal or mixed, of whatever kind and nature and wherever located to Richard C. Klein, as Trustee, for the use and benefit as hereinafter set forth. [Net income to the children of Eugenia Uncrop who survive the decedent]. When the last grandnephew or grandniece dies, the principle [sic] of the trust, together with any undistributed income shall be paid over to the National Institute [sic] of Health or any other recognized exempt organization that the Trustee determines is engaged in research in crippling neurological diseases of children or adults. *** 10. If the decedent had known at the time she executed her will that the law, both Federal and State of Ohio, permitted the sending of money to beneficiaries and other recipients in Romania, and that it was the policy of the United States government, that of Ohio, and, subsequently, of the Court, that the heirs in Romania would have the full use, benefit and control of the money, the decedent would have provided that her entire estate be paid to them outright and without any restriction or limitation in the will regarding full payment of the inheritances. The Attorney General was not served with process or summons in the action as required by R.C. 109.25. Plaintiffs did, however, notify the Charitable Trusts Section of the Office of the Attorney General that they were filing this action, and mailed a copy of the complaint to the Office of the Attorney General. The Attorney General filed an answer in the matter in which she denied that the trust proceeds should be distributed and prayed for an order to protect the charitable interest created. She did not further participate in the action. Klein and the National Institutes of Health submitted answers denying that the trust should be terminated. - 4 - On August 15, 1995, plaintiffs moved for summary judgment and asserted that in Mora v. Battin (1969), 20 Ohio Misc. 208, the United States District Court for the Northern District of Ohio struck down former R.C. 2113.81 which permitted state courts to withhold inheritances to residents of foreign countries until such time as the court obtained satisfaction that the intended recipient would actually receive the inheritance. In addition, plaintiffs' counsel averred that at the time Papuk executed her will, there "was no factual or legal justification for the belief that the decedent's heirs would not have the use, benefit and control of their inheritances..." and that following the "Romanian Revolution of 1989 and the democratization of the country, I have sent estate funds there directly to a bank chosen by the heir with instructions to that bank to deposit the money in the private numbered account of the recipient." Plaintiffs also moved to strike the answer of the National Institutes of Health, arguing that it had a nominal, contingent interest in the trust because Papuk's trust suggests but does not require that this particular organization receive the principal of the trust. The magistrate of the probate court subsequently issued a report recommending that the court deny both plaintiffs' motion for summary judgment, and plaintiffs' motion to strike the answer of the National Institutes of Health. Plaintiffs filed objections to the report of the magistrate. The trial court sustained the - 5 - objections, then granted both of plaintiffs' motions on February 27, 1996. Also on February 27, 1996, the court issued a judgment entry ordering distribution of the trust principal and accrued interest to plaintiffs. The National Institutes of Health filed a notice of appeal to this court on March 13, 1996, but later withdrew the appeal. Thereafter, on June 18, 1996, the Attorney General moved to intervene in the action and to vacate the probate court's February 27, 1996 judgment entries. The Attorney General asserted that it was a necessary party pursuant to R.C. 109.25 and that plaintiffs failed to serve it with process or summons as required by this statute. The probate court granted the Attorney General's motions and vacated the previous judgment terminating the trust. Plaintiffs now appeal, assigning seven errors for our review. Plaintiff's first, second and third assignments of error are interrelated and state: THE PROBATE COURT ABUSED ITS DISCRETION IN GRANTING THE ATTORNEY GENERAL'S CIV.R. 60(B) MOTION FOR RELIEF FROM JUDGMENT UNDER THE FACTS AND CIRCUMSTANCES IN THE CASE. THE PROBATE COURT ERRED IN FINDING THAT THE APPELLANTS FAILED TO SERVE THE ATTORNEY GENERAL AND THAT THIS FAILURE OF SERVICE CONSTITUTED A JURISDICTIONAL DEFECT RESULTING IN A VOID JUDGMENT. THE ATTORNEY GENERAL'S 60(B) MOTION DOES NOT CONTAIN ALLEGATIONS OF OPERATIVE FACTS THAT WOULD WARRANT RELIEF UNDER CIV. R. 60(B). - 6 - Within these assignments of error, plaintiffs maintain that the trial court erred in vacating its judgment which terminated the trust because the Attorney General has merely a contingent interest in the trust which may not materialize. Plaintiffs further maintain that the judgment should not have been vacated because they notified an assistant attorney general of their intention to file this action, served a copy of the complaint upon the Charitable Trusts Section of the Office of the Attorney General, and notified an assistant attorney general of various hearing dates in this matter. In opposition, the Attorney General maintains that the judgments were properly vacated pursuant to Civ. R. 60(B)(5). Specifically, she relies upon R.C. 109.25, which provides that the attorney general is a necessary party to any action to terminate a charitable trust, and that judgments rendered in the absence of service of process or summons upon the attorney general are void, unenforceable, and may be set aside upon the attorney general's motion seeking such relief. With regard to the procedural posture of this matter, we note that in order to obtain relief from judgment under Civ. R. 60(B), a movant must establish: (1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time, and, where the grounds of relief are Civ. R. 60(B) (1), (2) or (3), not more than one year after the judgment, order or proceeding was entered or taken. - 7 - GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146, 150-151. Further, Civ. R. 60(B)(5) reflects the inherent power of a court to relieve a person from the unjust operation of a judgment. State ex rel. Gyurcsik v. Angelotta (1977), 50 Ohio St.2d 345, 346. In determining whether a trial court has acted properly in granting a motion for relief from judgment, the essential consideration is whether the trial court abused its discretion. See Associated Estates Corp. v. Fellows (1983), 11 Ohio App.3d 112, 117; Hornyak v. Brooks (1984), 16 Ohio App.3d 105, 106. Further, relief from judgment has been upheld where it is granted upon the motion of an intervening party, filed after final judgment. See Owens v. Wright (February 18, 1993), Cuyahoga App. No. 64031, unreported. With regard to the underlying basis for the Attorney General's motion for relief from judgment herein, we note that R.C. 109.25 provides in relevant part as follows: The attorney general is a necessary party to and shall be served with process or with summons by registered mail in all judicial proceedings, the object of which is to: (A) Terminate a charitable trust or distribute assets; * * * A judgment rendered in such proceedings without service of process of summons upon the attorney general is void, unenforceable, and shall be set aside upon the attorney general's motion seeking such relief. Applying the foregoing, we hold that the trial court did not abuse its discretion in granting the Attorney General's motion for - 8 - relief from judgment. As to the first requirement for obtaining relief from judgment, good grounds under the civil rule, we hold that the failure of service of process or summons as required by R.C. 109.25 constitutes good grounds for relief from judgment. The plain language of that statute provides that the Attorney General is a necessary party in proceedings concerning charitable trusts, and shall be served with process or summons. Cf. Rogers v. United Presidential Life Ins. Co. (1987), 36 Ohio App.3d 126, 128-129 (a motion for relief from judgment based on a failure of service states good grounds for relief from judgment pursuant to Civ. R. 60(B)(5)). As to the existence of a meritorious defense, R.C. 109.25 further provides that a judgment obtained without service of process or summons upon the Attorney General is "void, unenforceable, and shall be set aside." We therefore hold that R.C. 109.25 provides a meritorious defense herein. Although plaintiffs clearly provided the Attorney General with notice of their action, they failed to meet the technical requirements of serving her with process or summons, thereby rendering the ensuing judgment susceptible to precisely the type of attack filed herein. Moreover, plaintiffs may not invoke the doctrine of estoppel against the Attorney General to preclude her from asserting her rights under Chapter 109 of the Revised Code, since estoppel may not be asserted against the state or its - 9 - agencies in the exercise of its governmental functions. Serek v. Fairhill Mental Health Ctr. (1986), 25 Ohio St.3d 38, 39. Lastly, with regard to the timeliness of the motion, we note that the determination of what constitutes a "reasonable time" within which to move for relief from judgment is for the trial court in the exercise of its sound discretion. In re Watson (1983), 13 Ohio App.3d 344, 346. In this instance, the motion was filed within four months of the court's judgment. In light of the fact that R.C. 109.25 gives the Attorney General an absolute right to set aside the judgment obtained without service of process or summons to that office, and imposes no time limitations, we are unprepared to hold that the motion was untimely as a matter of law. Plaintiffs' first, second, and third assignments of error are overruled. Plaintiffs' fourth, fifth, and sixth assignments of error are interrelated and state: THE WILL IN THE INSTANT CASE DOES NOT MANIFEST AN INTENTION BY THE TESTATRIX TO CREATE A CHARITABLE TRUST AND TO SUBJECT THE TRUSTEE OF HER ESTATE TO DEAL WITH HER PROPERTY WITHIN THIS STATE FOR ANY CHARITABLE, RELIGIOUS OR EDUCATIONAL PURPOSE. A TRUST IS EXCLUDED AS A CHARITABLE TRUST BY THE DEFINITION IN SECTION 109.23, REVISED CODE OF OHIO, UNTIL SUCH TIME AS THE CHARITABLE, RELIGIOUS OR EDUCATIONAL PURPOSE EXPRESSED IN THE TRUST BECOMES VESTED IN USE AND ENJOYMENT. THERE IS NO BENEFICIARY HAVING A VESTED INTEREST IN THE TRUST REQUIRING THE ATTORNEY GENERAL'S PARTICIPATION IN THE CASE. - 10 - Within these assignments of error, plaintiffs maintain that this matter does not meet the definition of a charitable trust as defined in R.C. 109.23. We disagree. In an earlier enactment, R.C. 109.23 provided in relevant part as follows: As used in Sections 109.23 to 109.33, inclusive, of the Revised Code, 'charitable trust' means any fiduciary relationship with respect to property arising as a result of a manifestation of intention to create it, and subjecting the partnership, corporation, person, or association of persons by whom the property is held to equitable duties to deal with the property for any charitable, religious or educational purpose. There are excluded from this definition and from the operation of such sections, trusts until such time as the charitable, religious or educational purpose expressed in such trust becomes vested in use or enjoyment. *** (Emphasis added.) In construing this earlier definition, the supreme court noted that the term "vested in use or enjoyment" means the "time that the right of use or enjoyment, present or future, has become fixed and irrevocable." See Brown v. Buyer's Corp. (1973), 35 Ohio St.2d 191, 196. The court then determined that the charitable purpose of a charitable trust becomes vested in use or enjoyment at the time of the creation of the equitable duty of the person, by whom the property is held, to deal with such property for such charitable purpose, whether actual enjoyment by the beneficiaries of the charitable trust is present or future. The current version of the statute, moreover, no longer excludes charitable trusts which have not vested in use or enjoyment as R.C. 109.23 now provides: - 11 - (A) 'Charitable trust' means any fiduciary relationship with respect to property arising under the law of this state or of another jurisdiction as a result of a manifestation of intention to create it, and subjecting the person by whom the property is held to fiduciary duties to deal with the pro- perty within this state for any charitable, religious, or educational purpose. Thus, the Attorney General was not required to demonstrate that its interest in the charitable trust has vested in use and enjoyment. The fifth and sixth assignments of error are without merit and are overruled. Further, as to the argument raised in plaintiffs' fourth assignment of error, we note that the fundamental consideration is whether there is a "gift of property to the use of the public, or an indefinite portion of the public, *** for a beneficial or salutary purpose," cf. Barton v. Parrott (1984), 25 Ohio Misc. 2d 8, 9. Herein, the relevant language of the trust provides that when the last grand-niece or grand-nephew dies, the principal of the trust with any remaining income shall be paid to the National Institutes of Health or similar exempt organization. We find this language sufficient to manifest an intention to create a charitable trust within the meaning of R.C. 109.23(A). The fourth assignment of error is overruled. Plaintiff's seventh assignment of error states: WHERE THERE IS NO APPARENT PURPOSE FOR CONTINUING THE TRUST, THE HEIRS ARE ENTITLED TO HAVE THE TRUST TERMINATED AND THE FUNDS TURNED OVER TO THEM IMMEDIATELY. - 12 - Within this assignment of error, plaintiffs ask us to address the substantive question of whether the trust should be terminated because unanticipated circumstances have arisen which now defeat the purpose of the trust. It is well-settled, however, that courts are to "refrain from giving opinions on abstract propositions and to avoid the imposition, by judgment, of premature declarations or advise upon potential controversies." Fortner v. Thomas (1970), 22 Ohio St.2d 13, 14. Accord Frank v. Vulcan Materials Co. (1988), 54 Ohio App.3d 153, 156. Therefore, in accordance with this long- standing prohibition against rendering advisory opinions, we cannot address this substantive question and must confine our review to the procedural questions from which this appeal is derived. The seventh assignment of error is overruled. Affirmed. - 13 - It is ordered that appellee recover of appellants their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Probate Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, P.J., AND *PRYATEL, J., CONCUR ANN DYKE JUDGE *Sitting By Assignment: Judge August Pryatel, Retired, of the Eighth District Court of Appeals. N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .