COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 74532 & 74619 GEORGE UNCROP, ET AL. : ACCELERATED DOCKET : Plaintiffs-appellees: JOURNAL ENTRY : AND -vs- : OPINION : RICHARD C. KLEIN, : PER CURIAM TRUSTEE : : Defendant-appellee : : and : : NATIONAL INSTITUTE OF : HEALTH, ET AL. : : Defendants-appellants : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 19, 1998 CHARACTER OF PROCEEDING: Civil appeal from the Court of Common Pleas Probate Court Division Case No. 1118486 JUDGMENT: Reversed and Remanded DATE OF JOURNALIZATION: APPEARANCES: For Appellees: JOHN R. VINTILLA, ESQ. 4405 Valley Forge Drive Cleveland, Ohio 44126-2826 For Appellees (cont.): RICHARD C. KLEIN, ESQ. 1111 Ohio Savings Plaza 1801 East Ninth Street Cleveland, Ohio 44114-3103 For Appellants: SHERRY M. PHILLIPS, ESQ. ASST. ATTORNEY GENERAL -ii- CRAIG R. MAYTON, ESQ. SECTION CHIEF, ASSISTANT ATTORNEY GENERAL 101 East Town Street, 4th Fl. Columbus, Ohio 43215-5148 -2- PER CURIAM: Appellant, Attorney General of Ohio, is appealing the probate court's decision to terminate a testamentary charitable trust and distribute the proceeds to appellees-plaintiffs, Georghe Uncrop, et al., in case number 74532. Appellant, National Institute of Health, is also appealing this decision in case number 74619. For the following reasons, we reverse and remand. The last will and testament of Elizabeth Papuk, dated August 30, 1980, established the testamentary trust. This will stated in pertinent part: 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 to them outright they would probably not receive the benefit of it. It is with this 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 of the trust, together with any undistributed income shall be paid over to the National Institute of Health or any other recognized exempt organization that the Trustee determines is engaged in research in crippling neurological diseases of children or adults.*** Plaintiffs-appellees, the nieces, nephews, grandnieces and grandnephews who live in Romania, filed a complaint for declaratory judgment seeking to terminate the testamentary trust and have the proceeds distributed to plaintiffs-appellees. The plaintiff's attorney, John R. Vintilla, submitted an -3- affidavit. Vintilla averred that for thirty-five years, he has specialized in the representation of Romanian residents with claims to the probate estates of U.S. citizens. Vintilla has never experienced a situation where a Romanian beneficiary was denied the benefit of his or her inheritance by the Romanian government. In the 1960s, the United States struck down any laws withholding the inheritance of a beneficiary who lives in an iron curtain country. Vintilla stated that in 1980, the testatrix had no factual or legal justification to believe that her relatives in Romania would not receive the full benefit of an outright distribution. Additionally, since 1989, Romania no longer has a communist dominated government. The trustee and National Institute of Health (N.I.H.) were named as defendants. The Attorney General was not served with process or summons. The probate court issued a judgment entry ordering distribution of the trust to plaintiffs. The Attorney General moved to intervene. The probate court granted the Attorney General's motion, and vacated the judgment entry terminating the trust. Plaintiffs appealed this ruling. This court held that the trust in question was a charitable trust, so the Attorney General was a necessary party pursuant to R.C. 109.25. Uncrop v. Klein (April 24, 1997), Cuyahoga App. No. 71117, unreported. Upon remand, the trial court granted a declaratory judgment in favor of plaintiffs-appellees. The Attorney General appeals the trial court's denial of her motion for summary judgment, the judgment entry striking the affidavit of the Trustee and the order -4- of the court granting a declaratory judgment in favor of appellees- plaintiffs. Appellant, National Institute of Health appeals the declaratory judgment in favor of the plaintiffs, and the denial of its motion to dismiss. I. The first assignment of error of appellant, The Attorney General of Ohio, states: THE TRIAL COURT ERRED IN DENYING THE ATTORNEY GENERAL'S MOTION FOR SUMMARY JUDGMENT (R.62, 74) AND TERMINATING THE CHARITABLE TRUST (R.1,74), BECAUSE THE DISPOSITIVE LANGUAGE OF THE WILL IS CLEAR AND UNAMBIGUOUS. NEITHER ANY ALLEGED MISTAKE IN INDUCEMENT NOR LACK OF FORESIGHT BY THE TESTATRIX ARE VALID REASONS TO TERMINATE THE TRUST. The sole assignment of error of appellant, National Institutes of Health, is interrelated and states: THE PROBATE COURT ISSUED TWO ERRONEOUS JUDGMENT ENTRIES ON APRIL 30, 1998. THE COURT ERRONEOUSLY GRANTED THE PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT; THE COURT TER- MINATED THE TESTAMENTARY TRUST OF ELIZABETH PAPUK AND ORDERED THAT THE TRUST BE DISTRIBUTED TO THE PLAINTIFFS. SECONDLY, THE COURT DENIED THE MOTION TO DISMISS FILED BY THE NATIONAL INSTITUTES OF HEALTH. A court must give effect to the intention it finds expressed in the will, and avoid redrafting a will to give effect to what the court conceives to be the actual intent of the testator. Carr v. Stradley(1977), 52 Ohio St.2d 220, Hess v. Summers (1982), 4 Ohio App.3d 281, 286. If the language of a will is clear and unambiguous as to the testator's intent, it is not necessary to examine extrin- sic evidence to determine the intent. See Oliver v. Bank One Dayton (1991), 60 Ohio St.3d 32, 34. A mistake of fact or law by the testator which induced the testator to execute the will does -5- not invalidate the clear language of the will. Painter v. Painter (1849), 18 Ohio 247, Younce v. Flory (1907), 77 Ohio St. 71, Webster v. Webster (App. 1927), 5 Ohio Law Abs. 244, Detzel v. Nieberding (C.P. 1966), 7 Ohio Misc. 262. A change in circum- stances subsequent to the execution of the will does not provide proper grounds to alter the will. Toledo Trust Co. V. Toledo Hosp. (1962), 174 Ohio St. 124, First National Bank of Cincinnati v. Gaines(C.P. Hamilton 1967), 15 Ohio Misc. 109, 123. Altering the will for such a lack of foresight would require an assumption as to how the testator would have disposed of the property had he anticipated the change. See Id. In this case, the will clearly and unambiguously states that the plaintiffs will receive the income from the trust for life, and that N.I.H. or another charity will receive the corpus of the trust when the last grandniece or grandnephew dies. The will states that Mrs. Papuk wished to assist and benefit the plaintiffs, but does not state that she wished to give them her entire estate. Even if Papuk was mistaken in her belief that the plaintiffs could not freely enjoy an outright distribution, it is unknown what she would have done had she known the true facts. It is impossible to know whether Mrs. Papuk would want the relatives to receive all of her estate outright, half of the estate outright, still receive only the trust income, or some other possibility. The court is unable to speculate as to Mrs. Papuk's intent if she was aware of the facts, or had anticipated the change in the facts. The court must interpret the will as it is written. -6- Plaintiffs assert that the purpose of the trust was to guard the principal for the plaintiffs, specifically to prevent the principal from falling into the hands of the Romanian government. This purpose no longer exists. According to plaintiffs, the trust has no purpose and must be terminated. See Morgan v. First National Bank (1948), 84 Ohio App. 345. Mrs. Papuk's will expressed another purpose of the trust: to preserve the trust corpus for The National Institute of Health or other charity. The trust should not be terminated, as the trust still has a purpose. Plaintiffs-appellees assert that the National Institute of Health is judicially estopped from claiming an interest in the trust. The National Institute of Health filed an appeal to the trial court's first ruling which terminated the trust. National Institute of Health withdrew its appeal, because the Solicitor General believed that the gift would not vest for a number of years. As stated above, the trial court vacated the first ruling which terminated the trust. N.I.H.'s statement that the trust would not vest for a number of years was not inconsistent with its claim to an interest in the trust. N.I.H. was not judicially estopped from asserting its claims. Accordingly, these assignments of error are sustained. II. The Attorney General's second assignment of error states: THE TRIAL COURT ERRED IN STRIKING THE AFFIDAVIT OF DEFEN- DANT KLEIN (R. 54), WHO DRAFTED THE TESTAMENTARY INSTRUMENT AT ISSUE, AND SERVED AS EXECUTOR OF THE WILL AND TRUSTEE OF THE TRUST, SINCE DEFENDANT KLEIN IS THE MOST AUTHORITATIVE SOURCE OF THE SITUATION AND CIRCUM- STANCES OF THE TESTATRIX AT THE TIME OF THE EXECUTION OF -7- THE WILL. This assignment of error is moot, given our disposition of the first assignment of error. We note that because we found the testatrix's intention was clearly manifested in the will, it was unnecessary to hear any parol evidence as to her intent. See Oliver v. Bank One Dayton (1991), 60 Ohio St.3d 32, 34. Accordingly, this assignment of error is overruled as moot. The decision of the trial court is reversed, and this cause is remanded for further proceedings consistent with this opinion. -8- This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellants recover of George Uncrop, et al., plaintiffs-appellees, their costs herein. It is ordered that a special mandate be sent to said 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. JAMES M. PORTER, PRESIDING JUDGE ANN DYKE, JUDGE TERRENCE O'DONNELL, JUDGE 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 .