Monday, February 22, 2016

Our Trustees THOMAS GILCHRIST,ALTON PETERS, FROM THE US TRUST CO. AND KELLY DRYE, AND RAILROAD, AND OIL TYCOON. EUGENE ZIMMERMAN, THE NINTH DUCHESS MANCHESTER HELENE MONTAGUS FATHER, AND OWNER OF KYLEMORE ABBEY. THE ELEVENTH DUKE OF MANCHESTER? IN (1981) WAS NOT THE ELEVENTH DUKE OF MANCHESTER YET. THIS Was just BEFORE THE 13th DUKE OF MANCHESTER TURNED 21. AND AGAIN THE 12th DUKE OF MANCHESTER WAS NOT IN THIS LAW SUIT HE WAS 21 AND ALIVE. WHERE DID THE MONEY GO?

C

TRUSTEES OF DIOCESE OF SOUTHERN OHIO v. GILCHRIST

3 Ohio App. 3d 223 (1981)

TRUSTEES OF THE DIOCESE OF SOUTHERN OHIO (EPISCOPAL), APPELLANT,
v.
GILCHRIST, EXECUTOR, ET AL., APPELLEES.

Nos. C-800111 and C-800344.

Court of Appeals of Ohio, Hamilton County.

Decided October 7, 1981.

Strauss, Troy & Ruehlmann Co., L.P.A., Mr. Samuel M. Allen and Mr. Richard Boydston, for appellant Trustees of Episcopal Diocese.
Messrs. Kohnen & Kohnen, Mr. Ralph B. Kohnen, Jr., and Mr. Roger W. Healey, for appellee Fifth Third Bank, trustee of testamentary trust of Eugene Zimmerman.
Messrs. Frost & Jacobs, Mr. T. Stephen Phillips and Mr. Larry H. McMillin,for appellee Sidney Arthur Robin George Drogo Montagu, Eleventh Duke of Manchester.
Messrs. Taft, Stettinius & Hollister, Ms. Cynthia F. Blank and Mr. Daniel J. Hoffheimer, for appellees and cross-appellants United States Trust Company of New York, Alton E. Peters and Thomas B. Gilchrist, Jr., executors of the Will of Alexander George Francis Drogo Montagu, Tenth Duke of Manchester.

KLUSMEIER, J.
This is an appeal from a decision of the Hamilton County Court of Common Pleas dismissing an action 
[ 3 Ohio App. 3d 224 ]

seeking to contest the Will of Helena, Dowager Countess of Kintore.
On January 30, 1915 the Last Will and Testament of Eugene Zimmerman was admitted to probate in Hamilton County, Ohio. The Will of Eugene Zimmerman established a testamentary trust for the benefit for life of his daughter, Helena, who at her death was known as the Dowager Countess of Kintore or Lady Kintore. In his will, Eugene Zimmerman provided that at the death of Helena the trust would continue for twenty-one years for the use and benefit of her children surviving her and after twenty-one years the trust would terminate and the corpus thereof be paid to Helena's children free from trust. In the event that none of her children survived her by twenty-one years, Helena was given a general testamentary power of appointment over the corpus of the trust estate. In default of valid appointment the corpus was to be paid to St. Paul's Protestant Episcopal Church of Cincinnati, Ohio free from trust. The plaintiff-appellant, Trustees of the Diocese of Southern Ohio (Episcopal), are the successors in interest of St. Paul's Protestant Episcopal Church of Cincinnati.
In 1967 Lady Kintore signed a document purporting to be her Last Will and Testament making disposition of her "American estate." This document met the formal requirements governing testamentary dispositions as established by the law of Ohio. In this document Lady Kintore made specific reference to the power of appointment as granted in the will of her father, Eugene Zimmerman. Upon the occurrence of the condition precedent to the exercise of such power, i.e., the failure of any of her children to survive her by twenty-one years, she appointed the sum of $100,000 to the Cemetery of Spring Grove of Cincinnati, Ohio; the balance of the principal of the trust fund was appointed as follows: one-half to the Episcopal Society of Christ's Church, Cincinnati, Ohio and one-half to her executors to be disposed of by them as Lady Kintore should in writing or otherwise direct. The residuary clause of the 1967 document gave, devised and bequeathed the rest, residue and remainder of her "American estate" to her son the Tenth Duke of Manchester or, should he predecease Lady Kintore, to her grandson, the Viscount Mandeville.
In 1970 Lady Kintore signed a document entitled "disposal of my interest in half the residue under the Will of my late father Eugene Zimmerman on my son, the Duke of Manchester, failing to survive me for twentyone [sic] years." This document then lists six natural persons and two organizations as beneficiaries in differing amounts. This single page document was signed by Lady Kintore and bears the signature of one witness.
Lady Kintore died December 15, 1971 and her sole surviving child, the Tenth Duke of Manchester, died on November 23, 1977. None of her children having survived her by twenty-one years, the condition precedent to Lady Kintore's exercise of the power of appointment was fulfilled.
The Probate Division of the Court of Common Pleas of Hamilton County, Ohio admitted both the 1967 document and the 1970 document to probate as the Last Will and Testament of Helena, Dowager Countess of Kintore, on August 2, 1978. The within action to contest the Will of Lady Kintore was instituted on November 30, 1978 by the filing of a complaint by the plaintiff-appellant, Trustees of the Diocese of Southern Ohio (Episcopal).1
[ 3 Ohio App. 3d 225 ]

The matter was subsequently tried on a stipulation of facts. The court dismissed the action holding that all necessary parties were not before the court by virtue of the fact that two of the named defendants, whose interest, if any, originated in the 1970 document, were dead before the action to contest was filed. The action was not commenced against the named defendants "if living, if dead, their unknown heirs, devisees, legatees or assigns" nor was there any substitution of parties for the deceased named legatees within the six months following admission to probate of the Last Will and Testament. In this appeal plaintiff-appellant assigns two errors: