[Cite as Stephan v. Wacaster,
2025-Ohio-565.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MIAMI COUNTY
RICK STEPHAN, SR., ET AL. :
:
Appellees : C.A. No. 2024-CA-19
:
v. : Trial Court Case No. 21 CV 211
:
CONNIE WACASTER, ET AL. : (Civil Appeal from Common Pleas
: Court)
Appellants :
:
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OPINION
Rendered on February 21, 2025
...........
THOMAS W. KENDO, JR., Attorney for Appellant
W. MICHAEL CONWAY, Attorney for Appellee
.............
LEWIS, J.
{¶ 1} Defendants-Appellants Connie Wacaster, Tami Bodie, and Todd Wacaster
appeal from a judgment of the Miami County Common Pleas Court granting summary
judgment to Plaintiffs-Appellees Rick Stephan, Sr. and Chris Stephan. For the following
reasons, we will affirm the judgment of the trial court.
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I. Facts and Course of Proceedings
{¶ 2} On July 20, 2021, Rick Stephan, Sr. and Chris Stephan (“Plaintiffs”)
commenced an action in Miami County Common Pleas Court against Connie Wacaster,
Tami Bodie, 1 Todd Wacaster, Rick Stephan, Jr., and Michael Kiesewetter. The
complaint sought a partition by sale of real estate and an accounting. The property at
issue was a 95-acre farm located in Newberry Township in Miami County. Plaintiffs’
claims were based on a Last Will and Testament executed by Margaret Stephan. Her
Will provided, in part:
ITEM THREE: I give, devise, and bequeath my 95 acre farm known
as 10290 North Newberry-Washington Road, Piqua, Ohio to my daughter,
Connie Wacaster, and my son, DeWayne Stephan, equally, share and
share alike, for Life. The Remainder of the Life Estate of Connie Wacaster,
I give, devise, and bequeath to her children, Tami Body and Todd Wacaster,
equally, and share and share alike. The Remainder of the Life Estate of
DeWayne Stephan, I give, devise, and bequeath to his children, Chris
Stephan and Rick Stephan, equally, and share and share alike.
{¶ 3} At the time Plaintiffs filed their complaint, Margaret Stephan and her son,
1 The record contains a discrepancy in the spelling of Tami’s last name. Margaret’s Will
spelled it “Body,” but we will spell it “Bodie” to be consistent with the trial court’s judgment
and Tami’s pleading.
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DeWayne Stephan,2 were both deceased. Plaintiffs are the children of DeWayne and
grandchildren of Margaret.
{¶ 4} Connie Wacaster filed an answer and counterclaims for declaratory judgment
and contribution. Rick Stephan, Jr. did not file an answer and, on Plaintiffs’ motion, the
trial court granted a default judgment against him. Tami Bodie and Todd Wacaster also
filed an answer.
{¶ 5} On August 23, 2022, Plaintiffs filed a motion for partial summary judgment
on their partition claim. According to their motion, Margaret’s Will lacked the necessary
language and intent to create a survivorship tenancy, and Plaintiffs possessed a statutory
right to partition. Connie opposed Plaintiffs’ motion for summary judgment and filed her
own motion for summary judgment. Connie argued that remaindermen like Plaintiffs
cannot have partition where there is an outstanding life interest in a third person like
Connie for the whole of the premises. Connie contended it did not matter whether the
life estate interests of Connie and DeWayne were those of joint life tenants or life tenants
in common. According to Connie:
The dichotomy between joint tenancy and tenancy in common goes
only to the irrelevant issue of survivorship: if Connie and [DeWayne] were
joint tenants, then the survivor of them would inherit the entire interest upon
the other’s death, and the heirs of the longer-lived tenant would thereafter
2 There is a discrepancy in the record as to the spelling of the name of Margaret’s son.
His name was spelled “DeWayne” by the trial court and Plaintiffs. Connie spelled his
name “DeWaine,” which is consistent with how his name was spelled on his death
certificate. We will use DeWayne throughout this opinion to be consistent with the trial
court’s judgment.
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be the only ones to inherit. With tenants in common, by contrast, each
tenant’s interest is separately devisable to that tenant’s heirs. Those
alternatives are academic here, as the will dictates who gets the fee simple
remainder when the life estate ends. The plaintiffs and Connie’s two
children are inheriting not from [DeWayne] or Connie, but from Margaret.
Memorandum of Connie Wacaster Opposing Plaintiffs’ Motion for Summary Judgment,
p. 4.
{¶ 6} On November 7, 2022, the trial court issued a decision and judgment entry
granting partial summary judgment in favor of Plaintiffs and overruling Connie’s motion
for summary judgment. The trial court found that “Margaret’s will does not grant a
survivorship tenancy; instead, it granted a tenancy-in-common.” Decision (Nov. 7,
2022), p. 2. The court explained that at common law, courts presumed a devise of
property to two or more individuals established a tenancy in common and R.C. 5302.19
carried forward this presumption that existed at common law. The trial court noted that
“Margaret’s devise of the Property does not include ‘language that shows a clear intent
to create a survivorship tenancy.’ The word ‘survivor’ does not even appear. Actually,
the language references two, one-half interests in a life estate – one to DeWayne and
one to Connie – the ‘remainders’ of which pass, respectively to DeWayne’s and Connie’s
children.” Decision, p. 7. The court concluded that Plaintiffs had a collective fee simple,
one-half interest in the property and were entitled to partition.
{¶ 7} On December 5, 2022, Connie filed a notice of appeal from the trial court’s
grant of partial summary judgment. On December 21, 2022, we dismissed the appeal
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for lack of a final, appealable order.
{¶ 8} Plaintiffs moved for an appointment of a commissioner to make the partition
of the property pursuant to R.C. 5307.04. The trial court granted the motion and
appointed a commissioner. On January 23, 2023, Plaintiffs moved for partial summary
judgment on their accounting claim. The trial court overruled the motion on April 2, 2023,
concluding that Plaintiffs had failed to identify any facts pertinent to their accounting claim.
The same day, the trial court issued a writ of partition. Connie filed a notice of appeal
from the trial court’s issuance of the writ.
{¶ 9} On December 15, 2023, we concluded that the trial court’s partial summary
judgment ruling and its writ of partition were interlocutory and not appealable absent
Civ.R. 54(B) certification, which did not exist. Stephan v. Wacaster, 2023-Ohio-4566,
¶ 21 (2d Dist.). Accordingly, we dismissed Connie’s appeal for lack of an appealable
order. Id. at ¶ 22.
{¶ 10} Plaintiffs subsequently dismissed their claims against Kiesewetter. The
case then proceeded to trial. On June 11, 2024, following a bench trial, the trial court
issued a decision and judgment entry finding that Plaintiffs were entitled to judgment on
their claim for partition against Defendants Tami Bodie and Todd Wacaster. The court
also found that (1) Plaintiffs failed to demonstrate entitlement to the appointment of a
receiver and (2) Plaintiffs were each entitled to $6,551.78 from Connie Wacaster on their
claims for an accounting.3 The trial court also issued an amended writ of partition.
{¶ 11} Connie Wacaster, Tami Bodie, and Todd Wacaster appeal from the trial
3 The trial court made other findings that are not at issue in this appeal.
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court’s judgment. Their arguments challenge the trial court’s determinations following
the trial and some of its pretrial rulings.
II. The Trial Court Did Not Err in Granting Summary Judgment to Plaintiffs
{¶ 12} Connie’s sole assignment of error states:
The November 7, 2022 summary judgment ruling was error, as were
the April 2, 2023 writ of partition and the June 11, 2024 damage award, both
of which assume and depend upon that summary judgment ruling.4
{¶ 13} Appellate review of a trial court's grant of summary judgment is de novo.
Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). Accordingly, we review the
trial court's grant of summary judgment independently and without deference to the trial
court's determination. Summary judgment should be granted only when there remains
no genuine issue of material fact and, when construing the evidence most strongly in
favor of the nonmoving party, reasonable minds can only conclude that the moving party
is entitled to judgment as a matter of law. Harless v. Willis Day Warehousing Co.,
54
Ohio St.2d 64, 66 (1978).
{¶ 14} Connie states that her entire appeal revolves around the trial court’s
November 2022 summary judgment ruling. According to Connie, Ohio law bars
Plaintiffs’ request for partition because she still has a life estate in the farm, which means
4 Tami Bodie and Todd Wacaster did not file appellate briefs. In response to our order
to show cause as to why the appeal should not be dismissed as to them, they asked to
join in Connie’s appellate briefs. On October 17, 2024, we deemed satisfied the order
to show cause and construed Connie’s initial and reply briefs as having been submitted
by all three Appellants.
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Plaintiffs can claim no possessory interest in the farm and cannot receive partition until
her life estate ends. Connie relies primarily on the following statement from Eberle v.
Gaier, 89 Ohio St. 118 (1913), paragraph one of the syllabus: “Where there is an
outstanding life estate vested in a third person for the whole of the premises of which
partition is sought, remaindermen cannot have partition.”
{¶ 15} Plaintiffs respond that they have a possessory interest in the property at
issue. According to them, Margaret’s Will “clearly gives that remainder interest to them,
because there is no joint life estate but separate life estates in the brother and sister.
Similarly, there are separate remainder interests to the children of the brother and to the
children of the sister. How the language of the Will could provide for a ‘joint life estate’,
but with similar language for tenancy in common for the remainders is a mystery.”
Appellees’ Brief, p. 5-6.
{¶ 16} “Tenants in common, survivorship tenants, and coparceners, of any estate
in lands, tenements, or hereditaments within the state, may be compelled to make or
suffer partition thereof as provided in sections 5307.01 to 5307.25 of the Revised Code.”
R.C. 5307.01. “If the court of common pleas finds that the plaintiff in an action for
partition has a legal right to any part of the estate, it shall order partition of the estate in
favor of the plaintiff or all interested parties, appoint one suitable disinterested person to
be the commissioner to make the partition, and issue a writ of partition.” R.C. 5307.04.
{¶ 17} “The purpose of the statutory proceeding in partition is to have set off and
divided to the parties in interest their part and proportion of the estate. It is to secure to
each tenant the exclusive possession of his share of the real estate theretofore held in
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common.” Eberle, 89 Ohio St. at 123. “Before an order of partition can be made, there
must be a finding that plaintiff has a legal right to a part of the real estate. If he cannot
have the immediate and exclusive possession thereof and enjoy his own share in
severalty, he cannot be said to have the legal right thereto.” Id. “It follows then that, if
the tenant is prevented by an intervening estate from possessing and enjoying his own
share of the common estate in severalty, partition will not lie.” Id. Typically, a
remainderman cannot seek partition because he does not have both the requisite title to
some part of the real estate and an immediate right to possession. “Where, however,
the intervening estate has been terminated by operation of law, or where the owner of
such estate has conveyed his interest to the remainderman, partition will lie.” Id.
{¶ 18} In order to determine whether Plaintiffs were entitled to partition, we must
first determine whether they had a possessory interest in the property at the time they
filed their complaint. This requires us to take a close look at Margaret’s Will, which stated
in pertinent part:
ITEM THREE: I give, devise, and bequeath my 95 acre farm known as
10290 North Newberry-Washington Road, Piqua, Ohio to my daughter,
Connie Wacaster, and my son, DeWayne Stephan, equally, share and
share alike, for Life. The Remainder of the Life Estate of Connie Wacaster,
I give, devise, and bequeath to her children, Tami Body and Todd Wacaster,
equally, and share and share alike. The Remainder of the Life Estate of
DeWayne Stephan, I give, devise, and bequeath to his children, Chris
Stephan and Rick Stephan, equally, and share and share alike.
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{¶ 19} Contrary to Connie’s contentions, the determination of whether Margaret’s
Will set up a co-tenancy between DeWayne and Connie or a joint survivorship between
them is dispositive of this appeal. If the Will set up a co-tenancy relationship, then once
DeWayne died, Plaintiffs immediately became tenants in common with Connie due to
their status as remaindermen to DeWayne’s life estate. As such, at the time their father
died, Plaintiffs would have had a fee simple interest in the property at issue, which would
have allowed them to seek partition. On the other hand, if Margaret’s Will instead set up
a joint survivorship between Connie and DeWayne, then once DeWayne died, Connie
would have owned the entire property, resulting in Plaintiffs not having any interest in the
property, let alone a possessory one. Under such a scenario, Plaintiffs could not seek
partition of the property.
{¶ 20} “The role of a court in interpretation of wills is to ascertain and give effect to
the testator’s intent.” Peters v. Allison, 2004-Ohio-4143, ¶ 15 (6th Dist.), citing Wendell
v. AmeriTrust Co., N.A.,
69 Ohio St.3d 74, 76 (1994). “In aid of determining intent, it is
presumed that the testator was familiar with the law.”
Id., citing
Wendell at 76. “ ‘The
law favors the vesting of estates at the earliest possible moment, and a remainder after
a life estate vests in the remainderman at the death of the testator, in the absence of a
clearly expressed intention to postpone the vesting to some future time.’ ” Id. at ¶ 16,
citing Ohio Natl. Bank of Columbus v. Boone,
139 Ohio St. 361 (1942), paragraph two of
the syllabus, and
Wendell at 77.
{¶ 21} Based on our review of the relevant statutes and Margaret’s Will, we
conclude that Margaret’s Will set up a tenancy in common relationship between Connie
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and DeWayne. R.C. 5302.19 provides, “Except as provided in sections 5302.17,
5302.20, and 5302.21 of the Revised Code, if any interest in real property is conveyed or
devised to two or more persons, such persons hold title as tenants in common and the
joint interest created is a tenancy in common.” R.C. 5302.20 acts as an exception to this
general rule and describes the creation of a joint survivorship. That section provides, in
part:
(A) Except as provided in section 5302.21 of the Revised Code, if
any interest in real property is conveyed or devised to two or more persons
for their joint lives and then to the survivor or survivors of them, those
persons hold title as survivorship tenants, and the joint interest created is a
survivorship tenancy. Any deed or will containing language that shows a
clear intent to create a survivorship tenancy shall be liberally construed to
do so. . . .
(B) If two or more persons hold an interest in the title to real property as
survivorship tenants, each survivorship tenant holds an equal share of the
title during their joint lives unless otherwise provided in the instrument
creating the survivorship tenancy. Upon the death of any of them, the title
of the decedent vests proportionately in the surviving tenants as
survivorship tenants. This is the case until only one survivorship tenant
remains alive, at which time the survivor is fully vested with title to the real
property as the sole title holder. . . .
{¶ 22} Nothing in Margaret’s Will showed an intent to set up a joint survivorship as
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contemplated by R.C. 5302.20. Rather, the plain language in Margaret’s Will set up a
tenancy in common between Margaret and DeWayne during their lives. This is made
clear by the language in Margaret’s Will about what would happen to Connie and
DeWayne’s respective life estates upon their deaths. Margaret stated a clear intention
in her Will that her grandchildren would immediately acquire a fee simple interest when
their respective mother or father died. Therefore, when DeWayne passed away, his one-
half interest in the property passed collectively to Plaintiffs, who then became tenants in
common with each other and with Connie. This is because Margaret’s stated intention
that the remainder of her two children’s life estates would go to her grandchildren rather
than the last of her surviving children is consistent with a tenancy in common rather than
a joint survivorship. See R.C. 5302.19. To conclude otherwise would completely
frustrate the clear intent expressed in Margaret’s Will.
{¶ 23} In addition to the plain language of the Will, our precedent supports the trial
court’s decision to grant summary judgment to Plaintiffs. For example, in Jackson v.
Brown, 17 Ohio Law Abs. 414 (2d Dist. 1934), the decedent’s Will provided for distribution
of real property to his three children as follows: (1) a one-third interest went to his son
George “for the period of his natural life, and then to the heirs of his body in fee simple”;
(2) a one-third interest went to his son Charles “for the period of his natural life, and then
to my Grandchildren”; and (3) a one-third interest to his daughter Estella “for the period
of her natural life and then to the heirs of her body in fee simple.”
Id. at 415. After the
decedent and his daughter Estella had both died, one of Estella’s children filed a
complaint seeking partition of the property at issue. The trial court denied the plaintiff’s
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request for partition. On appeal, we reversed the trial court’s judgment. We explained:
It will be observed that the three life estates originally created were
in the whole of the real estate of decedent. At the time of the judgment of
the trial court George W. Brown, life tenant, his issue and representative
remaindermen were living, Charles E. Brown, life tenant was living and
unmarried, but Estella P. Mumford, the third life tenant, was dead and the
fee in the undivided third of the property in which she had a life interest had
passed to Lois Jackson, Hubert Mumford and Mildred Mumford, her children
and only issue, in the proportion of one-ninth each of the whole tract. Thus,
these three children of Estella P. Mumford had a fee simple title to one-third
of the real estate involved with the right to immediate possession.
Id. at 416-417. We concluded that the trial court’s refusal to partition was incorrect. To
hold otherwise would mean that “the land cannot be divided and apportioned until the
death of all of the life tenants.”
Id. at 417. We cautioned, “It would not be equitable to
deny each owner in fee the right to his several interest in the real estate.”
Id.
{¶ 24} A few years later in Weeks v. Thompson, 66 Ohio App. 1 (2d Dist. 1940),
we addressed another situation in which the trial court had denied a partition request.
There, the decedent’s Will stated, in relevant part:
After the death of my wife, I give, devise and bequeath to my three
sons and my three daughters, the entire net income from the said residue
of my said property and estate in item III referred to, for and during the term
of their lives respectively, share and share alike, and upon the death of one
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or more of my said children leaving issue of his, her or their bodies, I give,
devise and bequeath the share or shares which such deceased ancestor or
ancestors would have taken if then living, to his, her or their children, then
living, equally, share and share alike, absolutely and in fee simple.
Id. at 9.
{¶ 25} Based on the language in the Will, we held that the children of a deceased
child of the testator had a vested remainder in fee, were entitled to immediate possession
thereof, and were permitted to maintain an action to partition the reality. Id. at syllabus.
We explained:
It is our conclusion then that the estate of the children of the testator
living at his death were limited to life estates but that upon the death of any
of said children the interest of that child passed in fee to his child or children,
if any living.
Inasmuch as Emma Christina Weeks had children living at her death
they take in fee the share in which she held a life estate, and as Henry L.
Tinnerman left one child, Clifford L. Tinnerman, he took in fee simple the
share of the estate of the testator in which his father held a life estate, and
the plaintiff, Henry H. Hollencamp, succeeded to the interest of Clifford L.
Tinnerman by virtue of his deed of conveyance.
It follows that the plaintiffs at the time of the institution of the action
of partition had a vested interest in fee in the proportions heretofore set out
in the real estate described in the petition and were entitled to the immediate
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possession thereof. They therefore had the right of partition and the court
in refusing to grant the prayer of their petition erred to their prejudice.
Id. at 13-14.
{¶ 26} Similar to the facts in Weeks and Jackson, at the time Plaintiffs filed their
complaint seeking partition, they were no longer remaindermen waiting for an intervening
estate to terminate. Rather, when DeWayne died, Plaintiffs collectively acquired a fee
simple interest in one-half the property. As such, they were tenants in common with
Connie and had the immediate possessory interest that permitted them to file an action
for partition. Therefore, the trial court did not err in granting summary judgment to
Plaintiffs on their partition claim.
{¶ 27} The assignment of error is overruled.
III. Conclusion
{¶ 28} Having overruled the sole assignment of error, we will affirm the judgment
of the trial court.
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TUCKER, J. and HUFFMAN, J., concur.
