
    Krueger v. Krueger, Guardian.
    
      Witts — After-born child — Bstate intestate as to such child, when —Right to partition realty.
    
    1. Where a person having a child or children executes his will and thereafter another child is born, for whom no provision is made in the will or by codicil thereto, the estate of testator as to such after-born child is intestate.
    2. In such case, if testator left realty as part of his estate, the after-born child may maintain an action in partition to have set off to him in severalty his share of such realty.
    (No. 18227
    Decided December 9, 1924.)
    Error to the Court of Appeals of Cuyahoga county.
    This proceeding in error grows out of a suit in partition by Louise Krueger as guardian of the estate of Pearl Krueger, a minor, against defendant beloAV, Lena Krueger, plaintiff in error here.
    The facts disclose that Carl Krueger, sometimes known as Charles, and also as Charles A., owned at the time of his death certain real estate in the city of Lakewood and also personal property, the latter amounting to more than sufficient to pay his debts; by will he devised and bequeathed all his property to his wife, Lena Krueger; he died NWember 3, 1922, and his widow elected to take under the will.
    At the time of the execution of the will Krueger Avas the father of eight children; subsequently to the making and execution of the will, Pearl Krueger, the ninth child, was bom. There was no provision in the will for the after-born child.
    
      To the petition setting up these facts- and asking that the ward be decreed to be the owner of the undivided one-ninth interest in the real estate described in the petition, the defendant interposed a general demurrer, which the common pleas sustained.
    The Court of Appeals reversed the common pleas, whereupon this court directed the former to certify to this court its record of the case.
    
      Mr. Jolm A. Nieding, for plaintiff in error.
    
      Mr. J. P. Corrigcm, for defendant in error.
   Conn, J.

The question for determination is whether, subsequently to the making and execution of a will by a parent who has children living, in which will there is no specific provision for an after-bom child, the latter may maintain an action in partition for its undivided interest in the real property of the testator, or whether such child is required to take its portion of the estate in money or the equivalent.

The following sections of the Ohio General Code are to be construed in disposing of the question:

Section 10563: “When, at the time of executing his will, a testator has a child absent and reported to be dead, or having a child at the time of executing the will, afterward has a child who is not provided for therein, the absent child, or child bom after executing the will, shall take the same share of the estate, real and personal, that he would have been entitled to if the testator had died intestate.”

Section 10564: “Toward raising the portion of such child, the devisees and legatees shall equally contribute, in proportion to the value of what they respectively receive under the will, unless, in consequence of a specific devise or bequest, or of some 'other provisions in the will, a different apportionment among the devisees and legatees be found necessary, in order to give effect to the intention of the testator, as to that part of the estate which passes by the will. If such child, supposed to be dead at the time of executing the will, has a child or children, provision for whom is made by the testator, the other legatees and devisees shall not be required to contribute. The child, supposed to have been dead, shall take the provision made for his child or children, or such part of it as the circumstances of the case, in the opinion of a proper court may be just and equitable.”

Section 10588: “All cases arising under this chapter, in which devisees or legatees are required to contribute to make up the share of a child born after the execution of the will, or of a child absent and reported to be dead, or of a witness to the will, or in which contribution is to be made among devisees, legatees, and heirs, or any of them, may be heard and determined in a single action.”

A liberal construction should be given to these sections because they are remedial in their nature. Both in the civil law and at the common law, marriage and birth of issue subsequent to the making of a will, leaving -such issue and widow unprovided for, constituted an implied revocation. The purpose of the legislation now under consideration is to correct the injustice which would result from establishing and carrying out strictly the provisions of a testator’s will, in which an after-born child is either purposely ignored or unintentionally overlooked, and this regardless of whether there had been a subsequent marriage. Whether the purpose of the legislation was to give effect to the presumed intention of a testator, or to prevent the chance of such child becoming a public charge, certainly it is founded in, a most laudable purpose.

The cited cases from other states have been examined, but none is conclusive on the question, for the reason that the statutes of the several states from which the reports emanate and on which the decisions are based show wide variations in terminology. The decisions do, however, agree in holding to the idea that an after-born child does not and cannot take under the will, since, having been omitted from the will, the taking is in opposition thereto. It is entirely immaterial whether or not there was a formed intention to disinherit the after-born child; whatever may have been in the mind of the testator the effect of not providing for the child in the will is equivalent to a disinheritance. In such a posture, the statute comes into play, declaring, as to such child, the intestacy of the estate.

If so, upon what theory may it be said that such a child is to be given less consideration than if there had been no will? Upon what doctrine, differently from the heirs generally of an intestate, do its rights rest? To require such after-born child to be remitted to a fund to be raised by the devisees and legatees might place such earlier bom children, coordinate in ownership as to the personalty and united in interest as tenants in common in the real estate, in position so to handle the administration as to acquire title to the, real estate through partition proceedings, or otherwise, at less than the real value. At least they would be able so to delay the sale of real estate as to permit a manipulation to their own advantage, accordingly as the market is lively or otherwise.

The construction we give to this legislation will place such a child in the homologous situation which the law contemplates; it will not be given a preferred position, nor, on the other hand, will it be subordinated to an inferior position.

Observe that the language of the statute (.Section 10563) provides that the after-born child shall take the same share of the estate, real and personal, to which he would have been entitled if the testator had died intestate. This language is not of doubtful meaning. It does not provide that the child shall take a fractional part, the denominator of which equals the number of heirs, but says the child shall take the same share that he would have received in event of no will. No violence is done to the letter of this, language, and certainly none to the spirit, if it is held that the child steps in as tenant in common in the real estate.

We do not go so far as to hold, as did the Court of Appeals, that such child may have its election of participating in the real estate or taking entirely from the personalty. We follow what seems to be the plain provision of the statute, that such after-born child shall be put in' the position it would have occupied had there been no will. The child, of course, by its own. act after majority, or by appropriate proceedings prior thereto by its guardian, may waive its position as regards tenancy in common, bnt this presupposes that it otherwise has been provided for. For instance, where all parties proceeded to a sale without knowledge of the existence of such child, the same might be held valid if a court of competent jurisdiction, on petition of the guardian, made such ward whole. The doctrine of estoppel is applicable to those who act through trustees, as well as to those who act on their own motion. Hence, while the judgment of the Court of Appeals is herein affirmed, what that court said with regard to the right of the infant’s, right of election is not to be accepted as the law.

It has been argued that the view now adopted will render General Code Section 10564 meaningless. We think otherwise. Suppose the statute known as General Code Section 10564 (and in this connection it may be said that General Code Section 10563, and General Code Section 10564, originally were part of the same section) had been omitted entirely, what would have been the course of administration of the estate? Would the birth of the after-born child have revoked the will in its entirety or only pro tanto 1 True, at common law, birth of issue, in the absence of other change in the circumstances, would not revoke a will. But another section pf this chapter of the General Code, to wit, Section 10561, provides, that where a testator has no child living at the time of the execution of the will, but afterward has a. child living, or a posthumous child, such will shall be revoked entirely unless provision has been made for the after-born child, either by settlement or in some such way mentioned in the will as to overcome a presumption of revocation. Note that this is not a revocation in part, but a revocation in its entirety. In view of this statute, General Code Section 10561, it might well be argued that, if there were no statute of the nature of Section 10564, Section 10563 should be similarly construed, and a revocation in the entirety result. So it follows that General Code Section 10564 has meaning because it makes plain that if a child be born into a family in which there were other children at the time of the execution of a will the revocation shall be pro tanto only.

Again, Section 10564, General Code, has meaning, because, except for it, how would the shares of the previously born children be affected? Would they be affected equally, that is, per capita, or in proportion to the value of what they respectively are to receive under the will?

Much divergence of view regarding the effect of General Code Section 10564 seems to grow out of the word “contribute.” To some it suggests a proceeding in the nature of an action in contribution. In our opinion it does not mean that; as used in this section it means a yielding up, a surrender, or a forfeiture. When SO' understood, it will harmonize not only with the rule herein declared, but also with other rules regarding the ownership of property and the devolution of real estate. And this is so even with General Code Section 10588 in effect, for it can well be understood that in the case of an after-born child questions might arise involving a specific bequest, or an annuity to an heir, with the proviso that no matter what debts arise or however much of a falling off in value there may be of the estate the annuity is still to be paid in full. There is no reason why all such matters should not be settled in one action under the provisions of General Code Section 10588, and if the award to an after-born child, as a tenant in common, is not sufficient to give such child its full share of the estate, such other orders, under General Code Section 10588, may be made in the one action as will fully protect all parties. It may be said, in passing, regarding the remission of an after-born child to an action, or pei'haps because of diversity of residenceship, to separate actions, against his older brothers and sisters, that judgment is not always followed by satisfaction thereof.

Then, too, there might be questions of advancements involved except for this statute. In the case of Wilson v. Miller, 1 Pat. & H., (Va.), 353, it was held that the doctrine of hotchpot did not apply, and' children to whom advancements had been made could take their legacies without bringing in their advancements, the pretermitted child being entitled only to its share of the estate left at the time of the death of the testator. The Ohio rule is otherwise because of the statute.

Again we find a reason for Section 10564, General Code, because in providing for the children of a child supposedly dead, such supposedly dead child, if he reappear, takes the property given to his' own children if the latter have been provided for in the will. In the absence of this section, if the supposedly dead child were to return and be permitted to have a share, and his own children also were allowed to take under the will, the injustice of such double participation would be manifest.

It is claimed by plaintiff in error that inasmuch as this court, in the case of German Mutual Ins. Co. v. Lushey, 66 Ohio St., 233, used the following language at page 240 of the opinion (64 N. E., 120, 122), “The remainder of the section not quoted relates to the method of ascertaining and supplying to the after-born child his share of the estate,” that case supports the position of plaintiff in error. It is not perceived how such contention may be made in view of the decision itself in that case.

The action was to foreclose a mortgage which had been executed and delivered by the supposedly sole devisee under a will. After the making and execution of the will, at which time the testator had but one child, another child was born. In the foreclosure suit the after-born child was made ’a party, asserted his interest in the real estate so mortgaged, and asked that his title be quieted as against the mortgagee. This court held in favor of the after-born child, and approved the action of the common pleas in quieting the title of the claimant to the one-half of the real estate so sought to be mortgaged. It is quite evident, therefore, that the quoted language in the Lushey case, supra, at page 240 (64 N. E., 122), relied upon by plaintiff in error, is merely a statement of fact that bequests and devises are subject to such modification as may be necessary to provide for a pretermitted child, and that by the statement referred to the court did not intend to declare the method of contribution.

Attention is called also to the case of Me Garry v. Smith, 22 Ohio St., 190.

The report of the case is meager, but an examination of the original papers shows there were two litigations. The first grew out of the fact that in 1857 the father executed a deed for his real estate to a son and daughter. Subsequently he executed a will devising the same real estate to the same son and' daughter, except that the son was given a life estate with remainder over to another daughter. Afterwards the father again married and by his second wife had two children, Isaac and Mary. No provision for them wás made in the will. The record fails to show any action on the part of the son and daughter, grantees in the deed, which would have released or reconveyed the title to the father, but doubtless the common pleas had sufficient evidence to conclude there had been a release, at least the will was held to be valid. The action by the guardian for the after-born children sought their share in money. The entry shows the court found each child was entitled to one-ninth of the real estate, and, while the record is not clear as to whether the property was sold, it is evident the question here was not before the court there, because, as stated, the guardian did not bring action as one in partition.

Another suggestion made to us is that our holding may undo or render fruitless the work of a parent, who, having a numerous family, some perhaps incapable of caring for themselves or unable suitably to take care of their property, has made and executed his will accordingly. Such considerations are neither controlling nor persuasive. The disposition of property by will is purely statutory. The right to dispose of property by will did not exist under- the common law. The statute under favor of which one makes a will is of no more force or effect than those statutes which limit one in the disposition of his property, for instance, the statute which declares inapplicable to wills the rale in Shelley’s case, or which renders a bequest to a charitable trust void if the will be made within a year of the testator’s death, certain conditions existing. The statute now under contemplation is in the nature of a limitation. One is not only presumed, but is required, to know not only the statute which permits him to make a. will But those which limit his powers in that respect. A married man should draw his will with reference to the contingency of an after-born child. Surely one so bom is not to be denied his birthright in favor of those older than himself, who presumably are the more able to take care of themselves, all because the parent was disinclined to change so important a document as his will. There was a time when the eldest male heir was a favorite in the law, but an enlightened people will have no such barbaric rule. The purpose of this statute being to give the newcomer his rightful share, no more, no less, and the construction we put on the statute being no departure from the language of the General Assembly, the fact that a parent by will has set up a scheme with which he himself is satisfied cannot conclude the courts in respect of the matter, especially when it is understood that the addition of a few words to his final document would have disposed of the estate in accordance with law and natural justice.

If it be said that purchasers of property at judicial sale will suffer by reason of this judgment, it need only be said that purchasers at judicial sales ever must be mindful of the maxim caveat emptor, and that, after all, such purchasers are volunteers who are not required to buy. Furthermore, the number of such cases will be infinitesimally small.

On the whole case, it seems to us any construction of the law otherwise would require us to read into the statute something not there, the effect of which would be to take protection from those who most need it.

The judgment of the Court of Appeals is affirmed.

Judgment affirmed.

Robinson, Day, and Allen, JJ., concur.

Jones, J.,

concurs in the syllabus and in the judgment.

Marshall, C. J., and Matthias, J., dissent.

Marshall, O. J.,

dissenting. I respectfully dissent from the majority opinion upon all essential points. The statement of facts in the majority opinion is accurate, and I agree that the controversy involves solely the construction of Sections 10563, 10561, and 10588, General Code. It is stated in the majority opinion that a liberal construction should be given to these sections because they are remedial in their nature. It might readily be conceded that the latter two sections are remedial, but it seems quite certain, on tlie other hand, that Section 10563 creates a right and the other two sections provide the remedy. The mere fact of creating a right does not necessarily take from the statute the quality of being remedial, if the sole purpose of the statute is to supply defects in existing laws, but it is apparent that .Section 10563 does not supply defects, but merely provides a limitation upon the statutory power to make a will. On the other hand, Sections 10564 and 10588 are remedial in the fullest sense. It is conceded that those statutes should receive a liberal construction, and we think that the results reached must be the same even though all three sections receive a liberal construction, A liberal construction is not by any means a loose construction, but, on the other hand, is defined as a fair and reasonable interpretation so as to promote the object thereof, and to expand the meaning to meet the cases which are clearly within its spirit or reason, and so apply the same that the evil which it is designed to remedy may be restrained. A liberal construction does not permit giving a strained construction to the language of a statute, but pertains rather to manner of applying the statute to cases sought to be brought within its terms. The interpretation must at all times be fair and reasonable. Proceeding upon this basis, let us analyze these sections. Counsel for the respective parties have cited numerous cases decided by other jurisdictions, and necessarily those cases relate to statutes which may or may not be identical with or similar to the Ohio statutes. Even if they are identical they would have no binding force or effect upon this court unless it should he made to appear that the Ohio General Assembly had adopted the sections under consideration from some other state, and further be made to appear that at the time of such adoption the courts of that state had given a certain interpretation to the language employed, in which event it would be presumed that the Ohio General Assembly had adopted the interpretation as well as the statute. Nothing of this sort is made to appear. The majority opinion cites no cases decided by other jurisdictions, and it is therefore evidently agreed that such cases are not helpful. We are not concerned with the wisdom of these statutes further than to inquire whether a certain interpretation would increase the evil, and, on the other hand, whether another interpretation would diminish it, it being presumed at all times that the Legislature has intended a rational course. We agree with the majority opinion that Section 10563 creates a right which is both salutary and laudable. That portion of Section 10563 pertinent to this inquiry reads:

“# * # child born after executing the will shall take the same share of the estate, real and personal, that he would have been entitled to if the testator had died intestate.”

It will be seen that it is not provided that the child shall have the same specific interest in each item of property belonging to the estate, but on the contrary is only awarded such share in the estate, generally, as would have accrued under ■the statutes relating to intestate estates. The word “share” in the statute is used in the sense of proportion or interest. If the Legislature had intended to award a specific interest, it would scarcely have mentioned personal property, because even under the intestate laws, personal property does not pass directly to heirs, but must be administered and distributed in the manner provided by statute. If the statute meant a legal estate in specific property, that intention could have been clearly expressed by stating that the child should have a share as tenant in common in the real estate. If Section 10563 stood alone it would have to be conceded that there is a measure of ambiguity which might permit the courts to construe it either way without doing violence to its language. Sections 10563 and 10564 were originally enacted as one section. We cannot see that this makes any difference, because in any event they both stand ás parts of the legislative provisions on the same subject, and must be construed in pari materia, and effect should be given. to all parts, if possible, without doing violence to either. The majority construction of this statute has the effect of making the will null and void as to an after-born child. If this were the real legislative intent, it would have been much éasier and simpler to have plainly so stated. Not having done so, but, on the contrary, having recognized the will in that section, and only limited its power as to the one element, it must be presumed that the Legislature intended that the will should stand to the fullest extent, so long as the financial interests of the child do not suffer thereby. When we consider Section 10564 in connection with the provisions of Section 10563, this construction becomes imperative. In the second section the interest of the child is referred to as a portion and not as a vested interest, and it is. required that the portion of such child shall be raised by equal contributions of the persons interested in the will in proportion to the value of what they respectively receive under the will. Again, such right of contribution safeguards specific devises and bequests-, thereby clearly indicating that no violence be done to the will of the testator in the matter of specific devises and bequests, and permitting a different apportionment among devisees and legatees where the same is found necessary in order to carry out the testator’s intent. All these things indicate that the after-born child is not the sole consideration of these statutes, so long as the full share of the child be awarded to it in any event. Some meaning must be given to that portion of Section 10564 permitting a different apportionment when found necessary, and it is apparent that there must be some tribunal to determine the necessity whereby such different apportionment may be made. Naturally and logically this determination can only be made in the manner that all other laws are administered, namely, by a court of justice.' If the child may, in any event, have partition of real estate, and if such right is to be declared under the facts of this ease, then the child is empowered to be the sole tribunal and a “different apportionment” becomes impossible. Inasmuch as the words “real and personal” appear in Section 10563, it is apparent that the same rule must apply to both kinds of property, which would bring that section in clear conflict with the laws relating to the administration of estates. It is opposed to all rules of construction to give the child a specific undivided interest as tenant in common in the real estate without giving'it the same interest in all personal property. It is more consonant with legislative expression that the interest of the child in each class of property shall be the same, and therefore that it does not have a specific vested interest in either class, except perhaps that in the liberal interpretation of these statutes, and in order to give them force in effecting the purposes intended, the “share” of the child should become a charge upon both classes of property until, by some proper proceeding, the share of the child shall be determined, as well as the value of such share, and by contribution such share be paid the child. It must be conceded by all parties that the child is entitled to a full share, and that in any proceeding to enforce contribution there must be an orderly judicial determination of the value of such share, and that the same must be paid to such child prior to the claims of any devisees or legatees under the will, and that such child shall have a charge upon all real and personal property to secure such payment. When that end has been attained in an orderly proceeding, full and complete justice has been done to such after-born child, and there is no possibility of an injustice being done unless some fraud shall have been practiced in the course of such a proceeding, or the court be guilty of some travesty upon justice. This view is in entire harmony with Section 10588, which requires all rights to be “heard and determined in a single action.” Manifestly if a child can institute a partition suit pertaining to only the real estate it becomes impossible to determine all rights in a single action.

To give effect to Section 10588 in any rational way, and in order that “a single action” shall determine the rights of all parties interested, if a partition suit of a single item of real estate should be permitted to proceed at the suit of the after-born child or its guardian, it would seem necessarily to follow that all legatees and devisees would have a right to be made parties to the partition suit and to have the contribution made and the amount thereof paid to the guardian of the after-born child in the same action. To hold otherwise would be to completely nullify that section. It is conceivable that the Legislature, in enacting Section 10588, intended to prevent • an after-born child, or any legatee or devisee, from bringing a partition suit and prosecuting the same to a final conclusion without at the same time bringing in all parties and having all rights “determined in a single action.” "Whether the Legislature had this particular matter in mind or not, it is very clear that it has given all devisees and legatees a right to intervene by virtue of that section.

The majority opinion proceeds upon the theory that Section 10563 amounts to a partial revocation, notwithstanding the word “revocation,” or any synonym of the word, nowhere appears in any of the sections under consideration. This fact stands out in bold relief when it is seen that the Legislature was no stranger to the word “revocation.” In several previous sections it is particularly provided how a will may be entirely or partially re-voted. Those sections also provide what shall be deemed an entire or partial revocation. On the other hand Section 10564, which was originally a part of Section 10563, gives the fullest recognition to the will, though no provision be made in the will for an after-born child, and then proceeds to provide the machinery for preventing such after-born child from being left unprovided for. Having used the word “revocation” in several previous sections, and having carefully omitted to use it in the section under consideration, it is a well-settled canon of construction that it will be presumed that the Legislature did not intend even a partial revocation. To mate this construction of the statute practical, it is only necessary to construe the word “share” as meaning proportionate value, and no other construction can be made to consist with the provisions of Section 10564.

The majority opinion inquires: “Upon what theory may it be said that such a child is to be given less consideration than if there had been no will?” It might be answered by inquiring upon what theory the child should be given more consideration than if there had been no will.' Clearly real and personal property are upon the same basis in these sections, and if the child can claim a specific share of real property, it may, by the same token, claim a specific share of personal property. It must be recognized, and all parties must agree, that the after-born child is entitled to the same value as if no will had been made. We only differ as to the manner of determining the value and the means of enforcing its payment.

The majority opinion, further proceeds upon the theory that there is some advantage in being the plaintiff in a partition suit, and some concern is expressed lest the other children or devisees might begin a partition suit. No advantage can accrue to any party to a partition suit over other parties thereto, unless the court improperly permits such an advantage to be obtained. If it shall be declared as a rule of law that a child has an undivided interest as a tenant in common in real estate, any devisee would have a right to' begin á partition suit to have that interest set off, or the property sold in the event partition could not be made. The only effect of the majority decision in this case would therefore be to foment strife and litigation, instead of following the plain provisions of Section 10588 that all rights be determined in a single action.

It is no answer to our contentions to say that the testator could have avoided the difficulty by making a codicil; neither does it suffice to say that he is presumed to know the law. The same answer could be made in a very large proportion of eases which actually are litigated, but the fact remains that people continue to be ignorant of the law notwithstanding the well-known presumption, and continue to be neglectful notwithstanding the common experience that much trouble and grief are caused thereby.

We repeat that the child is entitled to full justice, but, in giving justice to such after-born child, the court should be careful not to penalize those who have been made beneficiaries to the point of injustice to them, or to the point of disturbing a wise testamentary disposition of a complicated estate. None knows better than a husband and father the habits, characteristics, capabilities, faults, and weaknesses of those who are the natural objects of his bounty, and after testamentary disposition has been carefully thought out to safeguard the members of the family against indolence and profligacy and the dangers of being victimized by unscrupulous promoters, the courts should proceed slowly in permitting an absent or after-born child to completely overturn such testamentary disposition.

The majority opinion evidently fears that the child may not realize full value otherwise than by partition suit. The common experience of the bench and bar is that a partition suit should be the last resort in an effort to realize full value out of real estate, and that it should be resorted to only after all efforts at an amicable division have failed.

We agree with the majority opinion that the case of McGarry v. Smith, 22 Ohio St., 190, is not helpful in the disposition of this case. The case of German Mutual Ins. Co. v. Lushey, 66 Ohio St., 233, 64 N. E., 120, is discussed by counsel and in the majority opinion. We find no principle decided in that case which is decisive or even helpful in disposing of the present controversy. In that case the court only decided that a will which affirmatively sought to prevent an after-born child from participating would be ineffective to accomplish that purpose, and that an after-born child might participate notwithstanding such provision. We have no quarrel with that decision. In the present controversy we are not concerned with the right of the after-born child to have its full share of the estate, and are only concerned with the manner of determining and distributing such share to the child. In the Lushey case it clearly appears from the language of the opinion, on page 240 (120 N. E., 122), that the court did not even consider the question of the manner of determining and discharging the claim of the after-born child. It is true that in that case the court determined that the child had an undivided interest in the real estate. It was necessary to so determine in that case in order to protect the child at all, because the estate had been settled many years, and the beneficiary named in the will had appropriated the real estate to his own use and had given a mortgage on the entire estate. The mortgage was either a valid lien upon -the interest of the child or it was not. And it could only be declared that it was not a valid lien, on the theory that the beneficiary under the will had no right to incumber the estate without first having settled with the after-born child. The only logical effect of that decision was to make the claim of the child a charge upon all the estate, real and personal, until its claim had been adjusted. And this principle we not only concede, but have earnestly contended for.

This court has never previously considered the question involved in the instant case, and naturally is not bound by the decisions of the Courts of Appeals, and for the foregoing reasons we think those decisions have been erroneous.  