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Bragdon v. Carter

Court of Appeals of Ohio, Fourth District, Scioto

October 18, 2017

HEATHER BRAGDON, ET AL., Plaintiffs-Appellants,
v.
BELINDA CARTER FKA BELINDA DILES, ET AL. Defendants-Appellees.

          William S. Cole, Jackson, Ohio, for plaintiff-appellant Heather Bragdon.

          William R. Dever, Portsmouth, Ohio, for defendant-appellee Belinda Carter.

          DECISION AND JUDGMENT ENTRY

          HOOVER, J.

         {¶ 1} Plaintiff-appellant, Heather Bragdon, appeals the judgment of the Scioto County Common Pleas Court denying her claim for declaratory relief and entering judgment in favor of defendants. This action involves the interpretation of a will executed by Burl Bragdon who died testate and whose estate was previously administered by the Scioto County Probate Court. Heather Bragdon asserts that the trial court erred as a matter of law in determining that Burl Bragdon's will created a valid restriction on the alienability of the real property devised under the will. Because the law of this State disfavors restraints on the alienation of real property devised fee simple, we agree. Accordingly, we reverse the judgment of the trial court.

         I. Facts and Procedural Posture

         {¶ 2} Burl Bragdon died testate in 1998 and owned a tract of real estate at the time of his death. Burl Bragdon's will provided in relevant part:

ITEM IV:
I give, bequeath and devise my real estate equally to my children and friend, BELINDA DILES, BRENDA BRAGDON, BURL BRAGDON II, and BETH A NIXON, per stirpes, provided that said real estate not be sold until twenty-one (21) years after the death of my granddaughter, MORGAN MCKENZIE DILES, born April 14, 1996. It is the purpose of this bequest that my children and their heirs shall always have a place to live.[1]

         {¶ 3} Belinda Carter, fka Belinda Diles, the named executor under the will[2], admitted the will to probate. Shortly thereafter a Certificate of Transfer was issued and recorded in the deed book of the Scioto County Recorder. The Certificate of Transfer conveyed a one-fourth interest to Burl Bragdon's three children and his friend as directed under the will. The Certificate of Transfer also noted the following: "Said real estate may not be sold until twenty-one (21) years after the death of Morgan McKenzie Diles, d/b 4-14-96."

         {¶ 4} On November 9, 2001, the probate court filed an entry that approved and settled the estate, and discharged the fiduciary, Belinda Carter.

         {¶ 5} In 2004, Belinda Carter conveyed her one-quarter interest in the real property to Brenda Bragdon. Burl Bragdon II followed suit, conveying his one-quarter interest in the real property to Brenda Bragdon in 2009. In 2014, Brenda Bragdon and Beth A. Ritchie, fka Beth A. Nixon, conveyed their respective interests in the real property to Corey Bragdon and Heather Nowlin (aka Heather Bragdon). Thus, as of 2014, Corey and Heather Bragdon were the sole owners of the devised property.

         {¶ 6} On March 29, 2016, Corey and Heather Bragdon filed a complaint in the trial court seeking declaratory judgment against Belinda Carter, the Unknown Spouse of Belinda Carter, Burl Bragdon II, and the Unknown Spouse of Burl Bragdon II. The complaint sought a declaratory judgment finding that Corey and Heather Bragdon hold marketable title to the real estate, that the testamentary restriction on the sale of the real estate is null and void, and that they should be permitted to convey the real estate. Belinda Carter was the only defendant to file a timely answer.

         {¶ 7} On August 24, 2016, Corey and Heather Bragdon filed a Memorandum seeking to declare the restriction on alienation void, invalid, and of no legal effect. On October 17, 2016, Belinda Carter filed a Response to the Memorandum. In her Response, Belinda Carter alleged that the aforementioned transfers were void and invalid based on the restriction in the will and on the Certificate of Transfer. On the same date, Morgan McKenzie Diles, by and through her legal custodian, Belinda Carter, filed an Objection to the Sale of Real Estate. We note, however, that Morgan McKenzie Diles is not a named party to this action.

         {¶ 8} The trial court held a status conference on November 22, 2016.[3] Shortly thereafter, on January 23, 2017, the trial court entered judgment in favor of the defendants. In the judgment entry, the trial court found that the restriction on alienation was valid and that the transfer of the property was a clear violation of Burl Bragdon's wishes, was contrary to Ohio law, and would unfairly and unjustly divest ...


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