
    Common Pleas Court of Montgomery County.
    Hollencamp v. Greulich. 
    
    Decided July 9, 1928.
    
      
       Affirmed by the Court of Appeals.
    
   SNEDIKER, J.

This action is brought in this court to sell the real estate belonging to the estate of Andrew Greulich late of this county, deceased, for the purpose of paying his valid debts, the personal property not being sufficient. To the petition plaintiff administrator has attached. an exhibit showing the debts which it will be necessary to pay out of the proceeds of the sale of the real estate. . '

As one of the pleadings filed in the case, we find the answer of Millard Greulich, which is to the effect that he is a legal heir and representative of Joseph Greulich, deceased, who was a brother of Andrew Greulich, plaintiff’s decedent. He says that he was legally adopted by Joseph Greulich in the state of Wisconsin, on the 30th day of June, 1886, pursuant to the laws of that state, and that by virtue of such adoption, he is legally entitled to share in the estate of Andrew Greulich as a legal heir and representative of Joseph Greulich, his adopted father.

To this answer a demurrer has been filed by Josephine Reidl, who is a daughter by birth of Joseph Greulich and Adella Greulich, his wife.

The facts with reference to this estate, as they relate to the parties and to their relationships, are, as we understand, as follows: Andrew Greulich, who was in his lifetime the owner of the real estate in question, died intestate in this county on January 29, 1917. Prior to his death, in 1906, Joseph Greulich, who was the father of Josephine Greulich Reidl and the adoptive father of Millard Greulich, died, leaving Josephine Greulich Reidl and Millard Greulich surviving him, both of whom were living at the time of the death of Andrew Greulich. When Andrew died, there were living of his brothers, Leo, Albert and Reynold. There had deceased of his brothers and sisters, Joseph, Catherine, Barbara, Theresa and Constantine. Of Joseph and Catherine, children survived. Of Barbara, Theresa and Constantine, children and grandchildren survived.

The interest of Joseph in his brother Andrew’s estate, had he outlived him, would have been one-eighth, and this one-eighth it is, which is the subject of the controversy between Josephine Reidl and Millard Greulich, Josephine claiming the entire one-eighth by reason of the fact that she was a child of Joseph and Millard claiming one-half of the eighth cast by the law upon the heirs of Joseph, because of his adoption as recited in his answer. Since Andrew Greulich died intestate, any interest of an heir through one of his brothers or sisters must be defined by the law of Ohio, where this real estate is located. Our question then is, whether the law of this state gives to an adopted child an interest in the estate of a deceased brother of his adoptive parent, whether that adoption be in this state or in another state.

A principle to which we have already referred is more elaborately stated in Thompson on Real Property, at Section 2320.

“Where a person called the ancestor dies intestate or without leaving a will otherwise disposing of real estate owned by him, the law devolves the title thereto upon those who by virtue of the law of the place where the land lies are his heirs.”

It is true, of course, that the Legislature of Ohio possesses such right with respect to the devolution of real estate that it may control the manner in which such property shall descend and be distributed on the death of the owner. It becomes necessary for us, then, to ascertain what provisions of the General Code govern the situation which we have in this case.

While this adoption was had in the state of Wisconsin and the law which governs the rights of the parties on and subsequent to the adoption are entitled there to full force and effect, yet, if the descent of real estate in Ohio is to be governed by our law, it is to this latter we must look to determine the rights of the parties. And, by the way, an examination of the law of Wisconsin as found in Section 4024 of the Wisconsin Statutes and of Section 8030 of the General Code of Ohio will reveal that there is little, if any, difference in the rights of an adopted child in these states. We quote from the Ohio law. Section 8030, so far as is necessary for this case, reads:

“* * * 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 * *

In passing upon these provisions of the General Code, the Supreme Court of Ohio adheres to the rule laid down in the 59 O. S., pp. 1-8, in the case of Phillips, Exr., v. McConica, Gdn., where they say:

“True, Section 3140, Revised Statutes, provides that such adopted child ‘shall be to all intents and purposes the child and legal heir of the person so adopting him, or her, entitled to all the rights and privileges, and subject to all the obligations of a child of such person, begotten in lawful wedlock.’ But this is far from providing that such adopted child shall be the issue of the adopter, and of his blood and of the blood of his ancestors.
“It was well said in Upson v. Noble, 35 Ohio St., 658, that in passing the adopting statute ‘the legislature was dealing with personal rights and duties growing out of the relation of parent and child, by transferring them from the natural to the adopted relation.’
“The statute enables the adopted child to inherit from its adopter, but not through him. The statute does not make the adopted child the heir of the ancestors of its adopter, and the right of the adopted child to inherit cannot be extended beyond where the statute has fixed it. The statute in this regard must be strictly construed, as held in 35 Ohio St., 658.”

We may here say that in passing upon the Wisconsin statute, the Supreme Court of Wisconsin used similar language. In the 185 Wisconsin, at p. 393, they say:

“There are many reasons why an adoption statute should be strictly construed to enforce the duties and obligations voluntarily assumed by adoptive parents and to protect the adopted child in those rights and privileges which the law intends to secure to him as the result of the adoption. These reasons, however, do not apply when the rights of those who were not parties to the adoption proceedings are involved. The status resulting from adoption proceedings is not a natural one. It is a civil or contractual status. One may have the right to assume the status of a father to a stranger of the blood, but he has no moral right to impose upon his brother the status of an uncle to his adopted son. As was held in Warren v. Prescott, 84 Me., 483: ‘By adoption, the adopters can make for themselves an heir, but they cannot thus make one for their kindred.’ ”

In this decision of the Supreme Court of Wisconsin is quoted also the 143 Kentucky, p. 133, in which the Supreme Court of that state say:

“The act of the foster parents in adopting a child is a contract into which they entered with those having the lawful custody of the child, an agreement personal to themselves, and while they have a perfect right to bind or obligate themselves to make the child their heir, they are powerless to extend this right on his part to inherit from others. All inheritance laws are based or built upon natural ties of blood relationship, whereas an adopted child’s right to inherit rests upon a contract, and hence only those parties to the contract are bound by it.”

And in this Wisconsin opinion, the court also say:

“Text-writers generally lay down the rule that under statutes of adoption which declare the adopted child to have all the rights, including that of inheritance, of a child born in lawful wedlock, the adopted child is not constituted an heir of the collateral kindred of the adoptive parents.”

Which is followed by a quotation of numerous authorities.

In the 114 Ohio State, at j. 579, the Supreme Court, in deciding the case of Surman et al. v. Surman, said:

“An apparent conflict of authority is claimed to exist •in various adjudicated cases, but the conflict is more fanciful than real; the decisions depending upon the existing statutes of the various jurisdictions, relating to the subject. In Ohio we have a comprehensive series of statutes, relating to adoption, and fixing the status of the adopted child. Section 8029, General Code (Section 3139, Revised Statutes), provides that, after the provisions of the adopting statute are complied with, the probate court shall make an order ‘declaring that, from that date, to all legal intents and purposes, such child is the child of the petitioner.’ The following section (Section 8030, General Code, Section 3140, Revised Statutes), provides:
“ ‘Such child shall be the child and legal heir of the person so adopting him or her, entitled to all the rights and privileges and subject to all the obligations of a child of such person begotten in lawful wedlock.’
“These sections of the Code not only disclose a legislative purpose of conferring upon a legally adopted child the inheritable rights of one born in wedlock, but explicitly declare that the former shall be ‘entitled to all the rights and privileges of a child of such person begotten in lawful wedlock.’ ”

This language of Judge Jones is referred to by Judge Allen in the case of Albright et al. v. Albright et al., 116 O. S., p. 668, and with the concurrence of Judges Day, Robinson and Matthias, is qualified as follows:

“We agree with the contention of the defendant in error that Sections 3189 and 3140, Revised Statutes, place the adopted child upon a high plane among the other states of the Union. Also under this statute as amended, the child is invested with every legal right, privilege, obligation, and relation in respect to education, maintenance, and rights of inheritance to real estate or distribution of personal estate on the death of the adopting parent or parents as if born to them in lawful wedlock, and this court has recently enforced this statute with respect to such inheritance rights. Surman v. Surman, 114 Ohio St., 579. Sections 3139, 3140, Revised Statutes, however, did not give to an adopted child the same rights of inheritance to real estate or to distribution of personal estate in the property of an ancestor of the adopting parent as if he had been born to the adopting parents in lawful wedlock. This was the specific holding in Phillips, Exr., v. McConica, Gdn., 59 Ohio St., 1, which held in paragraph 4 of the syllabus that ‘an adopted child is enabled, by Section 3140, Rev. St., to inherit from its adopter, but not, through him, from his ancestors.’
“This decision is still law in this state.”

Albright’s case was one of testacy, but Judge Allen said:

“Even under the provisions of the statute if the case were one of intestacy, Jesse Albright would be merely a stranger so far as Charles Albright’s estate was concerned.”

The adopted child in that case attempted to participate in the estate of the father of his adoptive parent.

It is the contention of counsel representing Millard Greulich that by a change of the provisions of the General Code, with respect to adoption, the Legislature evidenced an intention which qualifies Millard to participate as claimed in the estate of Andrew.

We cannot find in the language of Section 8030 of the General Code anything which we can construe as entitling an adopted child to inherit through its adoptive parent from an ancestor of such parent or from the parent’s brother or sister. And without explicit language to that effect it is not the privilege of the court, by interpretation, to give the section any such meaning.

We are therefore of the opinion that the demurrer ought to be sustained.  