Miller v. Shepard

FUNK, J. Is an adopted child “issue” of the adopting parent within the meaning of the word “issue” as used in said Sec. 8577 GC., and thus stand in the same position as a natural-born child, and thereby prevent the property of an intestate decedent which came from a deceased spouse from passing one-half to the brothers *573 and sisters of the decedent and one-half to the brothers and sisters of the deceased spouse from whom the property came, under the provisions- of said Sec. 8577 GC. • ■ . The court below held in favor of the adopted child, and the case is in this court on appeal by the brothers and sisters, or their heirs, of both decedents, the said George V. and Jennie Miller. This fund is not ancestral and became the property of said George V. Miller upon the death of Jennie Miller, intestate and without issue, subject to the debts of her estate, under the provisions of 8574 GC., and that he could dispose of it during his life by contract or will as he saw fit, and upon his death without having disposed of it by will or otherwise, it passed not only to his children but that in the absence of children it descended alone to his heirs at law, was definitely settled by our Supreme Court in Brower v. Hunt, 18 O.S. 311. This section (8577) of the Code is recognized by our Supreme Court as having been passed for the purpose of avoiding the supposed injustice of the rule established in Brower v. Hunt, which was that the whole of the non-ancestral property which came to the relict from a deceased spouse descended alone — upon the death of the relict intestate and without issue — to his or her kindred. Although our legislature enacted the law which is now -said Sec. 8577 for the purpose of avoiding the supposed unjust effect of the rule established in Brower v. Hunt, the legislature at the same time seems to have acquiesced in and accepted the rule thus established. That the legislature acquiesced in and accepted this rule is apparent from the fact that this law as originally passed and the acts amendatory thereof merely limit the amount of property passing to the brothers and sisters, or their legal representatives, of such relict, by taking the half of it from them and giving it to the .brothers and sisters, or their legal representatives, of' the spouse from whom the property came, and left the other half to descend as the whole of such property had theretofore descended. This law, as originally enacted, and as amended, and as in force since the last amendment thereof became effective in July, 1923 (110 O.L. 13), does not change the character of such property or the way in which such property descends Stembel v. Martin, 50 O.S. 495. Stockton v. Frazier, 81 O.S. 227. Larkins v. Routson, 115 O.S. 639. Furthermore, it is apparent that this fund is the property of George V. Miller, and descends from him as his property, and not through him, as the property of Jennie Miller. A determination of the question under consideration depends upon the intention of the legislature in enacting our adoption laws, as appears from the language used to express that intention and the intention and purpose of enacting what is now said Sec. 8577 in the light of the holding in Brower v. Hunt and in subsequent decisions concurring in such holding and the language used by the legislature to express that intention and purpose. We have hereinbefore pointed out the purpose of G.C. 8577. The language of our adoption statutes pertinent to the question at issue is found in G.C. 8030 and reads as follows: “* * * and the child shall be invested with every legal right, privilege, obligation and relation in respect to. education, maintenance and the rights of inheritance to real estate, or to the distribution of personal estate on the death of such adopting parent or parents as if born to them in lawful wedlock * * Some claim is made that the clause following this language in said section and which reads— “providing such child shall not be capable of inheriting property expressly limited to the heirs of the body of the adopting parent or parents”— supports the contention on behalf of the brothers and sisters of decedent. We think said clause has no bearing whatever upon the situation in this case, as there are no words in said Sec. 8577 expressly limiting such property to the heirs of the body of the adopting parent, and it merely uses the word “issue” alone, without any limitation. In the case of Cochrel v. Robinson, 113 O.S. 526, the Supreme Court held that a designated heir, as provided for in G.C. Sec. 8598, was included within the word “issue” as used in said Sec. 8577. The judge who wrote the opinion in this case, in discussing the question, says that— “These provisions of the statutes creating the rights of inheritance between the parties to an adoption or the parties to a designation of an heir and the provisions of the law of descent and distribution of intestate estates are in pari materia, and should, therefore, be construed together as one law”; and that “The word ‘issue’ has several meanings in the law of decedents’ estates. What its meaning may be in a given case depends upon the circumstances under which it is used, whether it 'be found in a will, a contract, or statute. Its primary signification imports descendants and has to do with the blood of the ancestor,- but by general use the word ‘issue’ has often a wider signification and may include not only ‘children,’ but ‘grandchildren,’ ‘descendants,’ and ‘adopted children.’” Further along in this opinion the judge says: “We therefore ascribe the same meaning to the expression ‘child bom in’ lawful wedlock and ‘issue of’ those united in lawful wedlock,” and quotes with approval the following from Buckley v. Frasier, 163 Mass., 527, 27 N. E. 769: “The general intent of the statute (Pub. Sts., c. 148) is to place the adopted child in relation to either of his adopting parents, so far as their property is concerned, in the same position that he would be if their natural child. No stronger expression could be used than that which permits hint to take the share of the property of the adopting parent ‘that he would have taken if born to such parent in lawful wedlock.’ That the adopted child should be deprived of that which is given so explicitly is not readily supposable. There is less difficulty in holding that the word ‘issue’ is used in the sense of child or children, as thus construed it includes adopted children. If construed otherwise, the adopted child no longer occupies the relation of a child born in lawful wedlock to either of his or her adopting parents.” In the case of Surman v. Surman, 114 O.S. 579, our Supreme Court held that the words “afterwards has a child living,” comprehends *574 an adopted' child living after the testator’s death and who was adopted after the making of the will, and that such child could have the will revoked as to it, under the provisions of G.C. 10561, the same as a natural-born child could do. Following the reasoning of the Supreme Court in these two cases and applying it to the language used in our adoption laws, and taking into consideration the purpose for which the law that is now G.C. See. 8577 was enacted, we are impelled to the conclusion that our legislature intended to confer upon a child legally adopted under the law of Ohio, all the inheritable rights of a child born in lawful wedlock, and that such adopted child is included within the meaning of the word “issue” as used in said Sec. 8577; in other words, so far as said section is concerned, the adoption laws give to the adopted child the status of a child actually born to the adopting parent in lawful wedlock. This holding is also sustained in Smith v. Hunter, 86 O.S. 106, and is not inconsistent with other decisions in Ohio cited by counsel on either side. Our attention is called to the case of Albright v. Albright, 116 O.S. 668, by counsel for the brothers and sisters. It will be observed that this case involves the construction of a will and has- no application to the instant case. It therefore follows that George V. Miller did not die intestate “without'issue” and that the fund in question descends from him to the defendant Louella Miller Shepard as personal property under G.C. Sec. 8578. A decree may be drawn accordingly. (Washburn, PJ., and Pardee, J., concur.)