
    In re Estate of Kangesser: Porterfield, Tax Commr., Appellant, v. Zeve, Admr., Appellee.
    (No. 68-499
    Decided May 21, 1969.)
    
      
      Mr. Paul W. Brown, attorney general, Mr. Jon A. Ziegler and Mr. Harold 8. Vcm Schaack, for appellant.
    
      Mr. John Kennedy Lynch, for appellee
   O’Neill, J.

The inventory of the estate of M. Sylvia Kangesser showed total assets of $803,701.80. The will left all assets, after payment of debts and administration expenses as follows:

“Item 2. I give, devise and bequeath all the rest, residue and remainder of my estate, real, personal, and mixed, and whatsoever kind or nature, which I shall own and/or have an interest in at the time of my death, to my brothers, Harry A. Kangesser and Robert E. Kangesser, of Cleveland Heights, Ohio, whom I hereby designate and appoint as trustees for the purposes set forth below, in trust, nevertheless, for the following charitable, educational and religious purposes: They shall distribute and contribute from my said trust estate and the income thereof such amount or amounts as in their exclusive, and uncontrolled discretion and judgment they shall deem fair and reasonable, and to such charitable, educational, and religious institutions and purposes as in their exclusive and uncontrolled discretion they shall select or choose. It is my intention that my said trustees shall have the absolute right to make distribution of the above trust estate and the income thereof, in such amounts and to such charitable, educational and religious institutions and purposes as they deem proper.
“Item 3. It is my desire and I so direct that the above trust estate shall be known and designated as The Kanges-ser Foundation (Harry A., Robert E., and M. Sylvia Kan-gesser), and that all contributions therefrom shall be made in the name of The Kangesser Foundation (Harry A., Robert E., and M. Sylvia Kangesser).”

Robert E. Kangesser, executor, filed in the Probate Court an application to determine inheritance taxes, which contains the following:

“Harry A. Kangesser and Robert E. Kangesser, trustees, 2921 Prospect Avenue, Cleveland, Ohio — Entire Estate. All of the net assets of the state [sic.] were devised and bequeathed to the above named trustees with the direction that they should distribute the same to such charitable, educational and religious institutions and purposes as they should select and choose.”

The journal entry filed in the Probate Court showed property subject to tax of $774,926 and the schedule of successors on the journal entry designated the successors as “Trustees for Distribution” at a tax of $74,242.60. That amount of tax was paid, plus interest in the amount of $6,020.77.

There is no contention that there was any fraud or undue influence in the instant case.

The appellee in this case states his position in his brief as follows:

“ * * * The executor of M. Sylvia Kangesser’s will presumably knew the contents of the will and mistakenly believed as a matter of fact that the trustees were the successors. * * * Subsequently it was determined that the real successor was the Kangesser Foundation, a corporation then in existence. This fact was not known to the Executor when he filed the application.”

The position of the appellee is not tenable under the law. The executor interpreted the language in Item 2 and Item 3 of the will to require the conclusion that the trustees were the successors. That was a legal interpretation of the language in the will, which was a mistake of law and not a mistake of fact. Phillips v. McConica, 59 Ohio St. 1; Cincinnati v. Gas Light and Coke Co., 53 Ohio St. 278.

The appellee agrees that the common-law principle, that a voluntary payment of money made under a mistake of law is not recoverable, is the recognized rule in Ohio. Mays v. Cincinnati, 1 Ohio St. 269; Marietta v. Slocomb, 6 Ohio St. 471; Railway Co. v. Iron Co., 46 Ohio St. 44; Cincinnati v. Gas Light and Coke Co., supra, and Phillips v. McConica, supra.

The judgment of the Court of Appeals is, therefore, reversed.

Judgment reversed.

Taut, C. J., Zimmerman, Matthias, Leach, Herbert and Duncan, JJ., concur.

Leach, J., of the Tenth Appellate District, sitting for Schneider, J. .. ¡  