Pickering v. Koesling

VICKERY, J. Now it must he remembered that the foster mother, the sister of this decedent, died long prior to the decedent’s death and that the foster mother was never seized, either directly or in expectancy of anything that was left by the brother. Of course, if she had natural children, her own children, they would be the nephews and nieces of the brother of the foster mother, but because the statute makes the foster children capable of inheriting from the father and mother, does that make them nieces and neph *508 ews of a brother or sister of the foster father or foster mother? We think not. We think thei law is well settled in Ohio, as cited in the case of Quigley v. Mitchell, 41 OS. 375, where the court expressly holds that foster children can inherit from but not through the foster parents. This doctrine was re-affirmed and reasserted in the case of Phillips, Executor, v. McConica, Guardian, 59 OS. 1, but it is argued that since that case was decided the statute has been changed. It has been changed, but we think the change has still made it clear that from all except the foster brothers and sisters they could not inherit from any other relative. Under the law as it now stands, if the foster parents of these claimants had a natural child and the decedent in the instant case had died intestate, the money would have gone to that nephew or niece, the natural child of the decedent’s sister, and had such natural child died after he had inherited that money, then the foster brother and sister could have inherited from him. That is what the change of the statutes means, and that is all it does mean. It does not enlarge the right to inherit through foster parents, except as is mentioned in the statute. To show that they are not the same as natural children: If the foster children had parents that were rich and they died intestate, the foster children, notwithstanding they had been adopted by somebody else and somebody else was liable for their support, would still be the heirs of the natural parents, and nobody would claim, because they were entitled to inherit from their natural parents, that their foster brothers and sisters, children of the foster parents would be entitled to inherit with them from their natural parents. This shows a different relation is existing between them, and the statute was passed to protect, so far as it could protect, the foster children, so that they should be treated like natural children out of the estate of their foster parents who died intestate. They can participate in a division of the foster parents’ estate, for it would be manifestly unjust to deprive them of benefits when they have been regarded as children always, but how that can affect the rights of third persons who had nothing to say about their adoption and' were not responsible for their keep nor entitled to their services in any way, how they could say that could apply to third persons, to outside persons, we do not understand. We think it is clear and unequivocal that the foster children can inherit from the foster parents, but they cannot inherit through them, and a decree will be entered for the plaintiff, order see journal. (Sullivan, PJ., concurs. Levine, J., not sitting.)