
    Rodgers, Jr., Gdn., v. Miller, Trustee, et al.
    (Decided February 9, 1932.)
    
      Mr. Karl E. Burr, for plaintiff in error Andrew D. Rodgers, Jr., guardian.
    
      Mr. James M. Hengst, for defendant in error Charles W. Miller, trustee.
    
      Mr. Francis J. Wright, for defendants Robert H. and Joseph Walter Jeffrey, Florence Jeffrey Carlile, Agnes Jeffrey Shedd, Robert G. Hutchins, Harriet H. Durstine, Margaret H. Bishop and Katherine H. Heminway.
    
      Mr. W. Glover Porter, for defendant in error Florence Rodgers Jeffrey.
   Hornbeck, J.

This proceeding in error is to reverse the judgment of the trial court entering a decree in favor of the defendants in error, Charles W. Miller, trustee, Robert H. Jeffrey, Joseph Walter Jeffrey, Florence Jeffrey Carlile, Agnes Jeffrey Shedd, Robert G. Hutchins, Harriet H. Durstine, Margaret H. Bishop and Katherine H. Heminway.

The rights of the parties depend upon the construction of a certain deed of trust from Joseph A. Jeffrey to George A. Archer, trustee, dated May 6, 1914, and particularly item Y thereof. So much of item Y as is pertinent to our question is as follows: “In the event of the death of any child of the settlor above named, if the said child shall leave a husband or wife, as the case may be, and children living at the time of the said decease, the share of income to which the said child of the settlor would have been entitled shall be distributed so that the child or children of the deceased child of the settlor shall receive two-thirds of the said income and the husband or wife, as the case may be, of the said deceased child, shall receive one-third thereof. * * * Should any child of the settlor die without issue and leave either husband or wife, as the case may be, the said husband or wife shall be entitled to one-half of the amount of income which the said deceased child of the settlor would have received and the other one-half of the same shall revert to the trust fund and be apportioned and distributed as a part thereof to the beneficiaries named herein.”

On the date of execution of the deed of trust Celia C. Jeffrey was the wife, and the following were the living children, of Joseph A. Jeffrey: Robert H. Jeffrey, Joseph Walter Jeffrey, Florence Jeffrey Carlile, Agnes Jeffrey Shedd, Minnie J. Hutchins and Malcolm Douglas Jeffrey. Minnie J. Hutchins, a daughter, died prior to her father, leaving the following as her survivors: Her husband, Robert Grosvenor Hutch-ins, and three children, Harriet H. Durstine, Margaret H. Bishop and Katherine H. Heminway.

The settlor, Joseph A. Jeffrey, died on August 27, 1928, and his wife, Celia C. Jeffrey, died April 30, 1929, A son, Malcolm Douglas Jeffrey, died April 15, 1930, without issue of his body surviving him, leaving a widow, Florence Rodgers Jeffrey, and two adopted sons, John Richard Jeffrey and Stephen Douglas Jeffrey, minors, who are parties defendant in this action.

John Richard Jeffrey, born August 12, 1921, nine years old at the time this action was brought, was adopted October 10, 1923, and Stephen Douglas Jeffrey, born April 2, 1925, five years of age when this action was instituted, was adopted November 19, 1925, by said Malcolm Douglas Jeffrey and Florence Rodgers Jeffrey. Joseph A. Jeffrey, the settlor of the deed of trust, executed his last will and testament on the 19th day of June, 1924. He was born January 17, 1836, was more than 78 years of age when he executed the first deed of trust, more than 82 years of age when he made his will, and more than 92 years old when he died.

Thus, at the death of Celia C. Jeffrey, wife of Joseph A. J effrey, on April 30, 1929, less than one year after settlor’s death, there were surviving the settlor the following persons, all of whom are parties to this suit: Robert H. Jeffrey, Joseph "Walter Jeffrey, Florence Jeffrey Carlile and Agnes Jeffrey Shedd, children; Robert Gr. Hutchins, husband of Minnie J. Hutchins, deceased, the daughter of testator, and her three children, Harriet H. Durstine, Margaret H. Bishop and Katherine H. Heminway; Florence Rodgers Jeffrey, widow of Malcolm Douglas Jeffrey, deceased, son of the testator, and their two adopted children, John Richard Jeffrey and Stephen Douglas Jeffrey, minors, who are represented by Andrew Cf. Rodgers, Jr., their duly qualified and acting guardian.

It is the claim of the adopted children of Malcolm J effrey, through their guardian, and of Florence Rodgers Jeffrey, their adopter mother, that they come within the classification of children of settlor’s deceased child, as employed in item V of the deed of trust, and are entitled to share, with their mother, the income which Malcolm Douglas Jeffrey, had he lived, would have enjoyed, and, if living at the termination of the trust are entitled to participate in the distribution of the corpus of the trust in the proportion provided for the children of Malcolm Douglas Jeffrey by the deed.

It is the claim of the other defendants, except the trustee, that the adopted children of Malcolm Douglas Jeffrey do not take under the deed of trust, because the language under consideration was intended to include only natural children or issue of the body of settlor’s children. The trial court sustained this latter claim.

At the time that the settlor executed the deed of trust, and for many years thereafter, neither of the adopted children of Malcolm Douglas Jeffrey and his wife were in existence, therefore, as individuals in the status of children of his children, could not have specifically been in the .mind of the settlor. He did know, according to the record, that some of his children had natural children and that none had adopted children.

In every instance, save one, in item Y, when the settlor speaks of the immediate representatives of his own children, he characterizes them as “child” or “children” of the deceased child of the settlor. By this language so employed the children of a deceased child of the settlor are placed in a class the representatives of which are entitled to share in the income and corpus of the estate. The exception is negative language, and is employed in item Y, as follow's: ‘ ‘ Should any child of the settlor die without issue and leave either husband or wife, as the case may be, the said husband or wife shall be entitled to one-half of the amount of income which the said deceased child of the settlor would have received and the other one-half of the same shall revert to the trust fund and be apportioned and distributed as a part thereof to the beneficiaries named herein. ’ ’

“Issue” is used synonymously with “child” or “children” and may mean issue of the body. If so, the adopted children are not included in the phraseology employed. The word “issue,” standing alone and unmodified by circumstances or context, imports issue of the body, but it is flexible, and may mean adopted children or heirs at law.

Much time and research have been employed by counsel in analyzing and discussing the effect of the adoption statute, Section 8030, General Code, formerly Section 3140, Revised Statutes, in effect at the time the deed of trust was executed, and Sections 8029 and 8030, General Code, in effect when the minors were adopted and when it is claimed the rights arose under the deed of trust.

As we view this case the difficulty is not presented in the construction of the adoption statutes, but in determining the meaning of the language “child” or “children” and “issue” as employed by the settlor.

If the settlor, by the force alone of the language employed, or in connection with the context of the trust deed, or, if upon these considerations it is ambiguous, then from extrinsic circumstances, meant to include the adopted children of Malcolm Douglas Jeffrey, then nothing in the statutes would stand in the way of their enjoyment of the rights accorded by the deed. But, as we understand the rule, there is a difference in the construction required in the use of “child” or “children” when employed by the adopting parent and when used by a stranger to the adoption. Had Malcolm Douglas Jeffrey used the language “child” or “children,” referring to his children, the presumption would attend that he meant to include both natural and adopted children whether or not they had been adopted at the time of the execution of the instrument. To the contrary, when a stranger to the adoption employs the language “child” or “children,” relating to children other than his own, the presumption attends that he does not mean to include other than natural children.

We are constrained to say that there is nothing in the deed of trust which would tend to overcome the presumption that the settlor did not mean to include the adopted children of Malcolm Douglas Jeffrey in the language employed. The use of the word “issue” strengthens the theory that he had in mind only natural children of his children. Nor does any outstanding purpose appear in this deed of trust to restrict its benefits to the Jeffrey family. If we had to depend upon proof of this intent from the instrument itself or from any circumstances in evidence, it could not be found.

We have considered with care all of the cases in Ohio which have been cited by counsel as germane to our question in the slightest degree. We doubt whether the adopted children of Malcolm Douglas Jeffrey in this instance, if they take at all, would take through their parent. Baker v. Carpenter, Exr., 69 Ohio St., 15, 68 N. E., 577. If they are entitled to participate in the benefits of this trust, they do so as representatives of a class named and designated by the settlor, and take direct from him and not through the adopter father. This is not a question of inheritance as same is presented in a number of the Ohio cases.

But it is claimed that circumstances subsequent to the execution of the deed of trust and supplemental deed of trust establish that the settlor, in designating the class “child” or “children” of my children, intended to include the after-adopted children of Malcolm. These facts are set up in stipulation No. 11 of the agreed statement of facts: “From time to time subsequently to the execution of said instruments and after the adoption of John Richard Jeffrey and Stephen Douglas Jeffrey, respectively, by the settlor’s son, Malcolm Douglas Jeffrey, and Florence Rodgers Jeffrey, his wife, the settlor referred to them as the said Malcolm Douglas Jeffrey’s boys, and as his, the settlor’s, grandchildren, and otherwise acknowledged and approved them as such.”

And in No. 12, the last will and testament of Joseph A. Jeffrey, the following item appears: “To each of my grandchildren living at the time of my decease, I give and bequeath the sum of one thousand ($1000) dollars. These grandchildren are: Harriet Hutchins Durstine, Margaret Hutchins Bishop and Katherine Hutchins Heminway of New York City, children of my daughter, Minnie Jeffrey Hutchins. Janet Jeffrey Carlile, daughter of my daughter, Florence Jeffrey Carlile. Robert K. Jeffrey, of Bexley, Ohio, son of my son, Robert H. Jeffrey. Marion Shedd, Elizabeth Shedd, Jeffrey Shedd and Agnes Shedd, of Bexley, Ohio, being the children of my daughter, Agnes Jeffrey Shedd. Mary Loren Jeffrey and Catherine Clark Jeffrey, of Bexley, Ohio, being the children of my son, Joseph Walter Jeffrey. John Richard Jeffrey, being the adopted son of my son, Malcolm Douglas Jeffrey, of Columbus, Ohio.” (Italics ours.)

In conjunction with these paragraphs should be considered stipulation No. 9: “Neither at the time of the preparation and execution of said instruments, denominated deed of trust and supplement thereto, nor at any time prior thereto were there any adopted children of any of the persons named or referred to in either of said instruments; nor was the possibility of the adoption of children by any of the persons named or referred to in either of said instruments discussed or considered by the said Joseph A. Jeffrey at or prior to the time of the preparation and execution of either of the same. To this statement the defendant, Andrew D. Rodgers, Jr., as guardian ad litem and as guardian of the estates of John Richard Jeffrey and Stephen Douglas Jeffrey, specifically objects for competency, relevancy and materiality.”

Objections to the competency, relevancy and materiality of all three of the stipulations were made. The effect of stipulation No. 9 is to preclude any inference that the settlor when the deed of trust was prepared gave any consideration whatever to the adoption of children by his children. It therefore becomes difficult to interpret paragraphs 11 and 12 as in any manner reflecting upon the intention of the settlor respecting a condition yet to arise to which he gave no thought or consideration whatever. We have accepted all of this testimony for what it is worth, but deem it entirely inadequate to import a construction to “child” or “children” of settlor’s children as including the adopted children of Malcolm Douglas Jeffrey. Stipulations 11 and 12 are convincing that, when a condition had arisen where the attention of Joseph A. Jeffrey was directed to the fact that his son Malcolm had an adopted child, he then considered and treated this child as a grandchild, and, if construction were to be given to an instrument made subsequent to the time covered by these paragraphs, the facts therein set forth might be valuable and helpful.

In the will the testator definitely classified John Richard Jeffrey as his grandchild. What he said was tantamount to this, that John Richard Jeffrey, although he is the adopted son of my son Malcolm Douglas Jeffrey, is my grandchild. But this statement, in the light of stipulation No. 9, is insufficient to overcome the presumption attending the use of the language in item 5 of the deed of trust.

We have been favored by unusually helpful briefs of counsel for the parties. We have had the advantage of the opinion of the trial court, and believe it is sound and supported by the trend of authority in Ohio and elsewhere.

The case most discussed, and being the latest pronouncement of the Supreme Court of Ohio on the subject, is Albright v. Albright, 116 Ohio St., 668, 157 N. E., 760. Counsel for the guardian insists that a portion Of this decision relating to our immediate question is obiter, and in this position he is vigorously met by opposing counsel. The item there under consideration was: “The land above devised to my son Isaac Al-bright he is to have the nse of during his natural life, and at his death to vest in fee simple in his children if he shall have any living. If he shall leave no children living at his death then said lands shall vest in his legal representatives of the Albright family.”

The testator was the father of Isaac Albright, who died without children, but leaving an adopted child, Jesse A., whom he had adopted fifteen years after the death of the testator.

By the syllabus there is an express statement that the adopted child is not a “legal representative of the Albright family,” and an implied statement, under the language “does not take under the will,” that the adopted child did not answer the description “children of Isaac Albright,” as used by the testator.

This clearly appears in the manner in which the writer of the opinion considered the question presented.

The earlier part of the decision is devoted largely to a determination of what the testator had in mind in the use of the language, “and at his death to vest in fee simple in his children if he shall have any living.” It is in this connection that the helpful part of the Albright case is found. It is true that the court found support for its ultimate conclusion in the further phrase in the item under consideration, “legal representative of the Albright family.” The court was following the common procedure incident to the construction of a will, namely, attempting to bring to its assistance anything within the four corners of the will which would shed any light upon the intention of the testator. This is exemplified in the opinion, wherein, after consideration of the statute of distribution, at the bottom of page 678 [157 N. E., 763], it is said: “In other words, we have not to construe the statute, but to construe the will and to decide what the testator meant to accomplish therein,” The opinion at the top of page 681 definitely supports the judgment that the adopted child of Isaac Albright was not included by the testator when lie devised the remainder to “the children of Isaac Albright if he shall have any living.”

We cannot escape the value of the Albright case, and its discussion and approval of cited authorities. At the bottom of page 679 [157 N. E., 763], the court, after discussing the family relationship of the testator, and after naming those who composed the families of his son, said:

“All of these facts were known to Charles Albright at the time of the execution of his will, and evidently when he repeats the word ‘children’ throughout these items, he refers to living children of the blood.

“There is a presumption that words used in a will are used in their primary and ordinary sense. It is generally held that when a testator uses the word ‘child’ he means a natural child, unless the context clearly shows that he means to use the term in a sense including adopted as well as natural children. This is particularly the fact when the testator speaks, not of his own children, but of the children of other persons. 28 Ruling Case Law, p. 252, states the rule as follows:

‘ ‘ ‘ There are numerous decisions to the effect that a testator who by will makes provision for his own “.child or children” by that designation should be held to have included an adopted child, since he is under obligation in morals if not in law to make provision for such child. If, however, a will makes provision for a “child or children” of some other person than the testator, the adopted child of such person is not included, unless other language of the will makes it clear that it was so intended. In the absence of circumstances tending to show that the testator anticipated the adoption, or knew that it had already taken place, and therefore probably intended to treat the person adopted as a possible beneficiary, the decisions generally exclude the adopted child from the benefit of the will. A limitation in a will, to a child or children, or conditioned upon the survivorship of a child or children, is not deemed to include an adopted child, where the grantor or testator is a stranger to the adoption.’ ”

In Gruelich v. Hollencamp, this court, Judges Allread, Kunkle and Ferneding, held, following the Albright case, that an adopted child of a son of the testator could not inherit under Section 8030, General Code.

Cochrel, a Minor, v. Robinson, 113 Ohio St., 526, 149 N. E., 871, is an interesting and instructive case, the opinion of which was written by Judge Day, who characteristically considers and discusses many decisions from Ohio and elsewhere. But this case involved only an interpretation of Section 8598, General Code. The question there presented related to the rights of an adopted son who claimed from his adopter mother. The second proposition of the syllabus illustrates the distinction: “Such person so designated is to be regarded the same as ‘issue’ of the person so designating, in so far as it involves his right to inherit from the person so designating under the statutes of descent and distribution.”

Smith v. Hunter, Trustee, 86 Ohio St., 106, 99 N. E., 91, was a general devise to trustees for the benefit of two children of testator and two sons and two daughters of these children, with a remainder over in “fee simple to the heirs of said daughters.” The court there held that under the language “to the heirs at law” of the life tenant an adopted child of the life tenant would come within the classification. The court had under consideration neither “children” nor “issue.”

Phillips, Exr., v. McConica, Gdn., 59 Ohio St., 1, 51 N. E., 445, 69 Am. St. Rep., 753, involved the construction of Section 5971, Revised Statutes, which provided that when a devise of real or personal estate is made to any child or other relative of the testator, and such child or other relative shall die, leaving issue surviving the testator, such issue shall take the estate.

The court held that the word “issue” as used in this statute meant “child of the body” or “heir of the body” of the deceased relative of the testator, and did not include a child adopted by such decedent; that adoption does not make the adopted child of the blood of its adopter, nor of the blood of his ancestors.

Upson, Admr., v. Noble, 35 Ohio St., 655, 658, announces the often stated principle that the adoption statute does not make the adopted child the heir of the ancestors of the adopter, that the right of the adopted child to inherit cannot extend beyond the statute, and that the statute enables the adopted child to inherit from its adopter, but not through him.

Quigley v. Mitchell, 41 Ohio St., 375, announces a rule of construction in a will case, and holds that, as between the adopting parents and the adopted child, Section 3140, Revised Statutes, bestowed upon the latter all the rights and privileges of a natural child, but did not make the adopted child of the adopter mother of the blood of her father.

Kroff v. Amrhein., 94 Ohio St., 282, 114 N. E., 267, holds that the primary and paramount purpose of Sections 8029 and 8030, General Code, is to make an adopted child the equal of a natural child “to all legal intents and purposes,” and to invest such adopted child with all the rights and privileges of a child of the blood, or child begotten in lawful wedlock, subject only to the exceptions therein contained. This case, however, involved the right primarily of representatives of an adopted child to take through the adopted child from the adopter parents.

Outside of Ohio the cases are collated and considered exhaustively in L. R. A., 1918B, annotation at page 123, and in an annotation to Mooney v. Tolles [111 Conn., 1, 149 A, 515], as reported in 70 A. L. R., page 608, annotation at page 621. We shall not set them out at length, but an examination thereof is convincing that with few exceptions they support the principles which we have followed in this case. -

Since writing the foregoing opinion, we are in receipt of a letter from counsel for Andrew D. Rodgers, Jr., guardian ad litem, etc., and reply thereto from counsel for the defendants, Robert H. Jeffrey et al. Our attention is directed particularly to the amendment to Section 8030, General Code, now Section 10512-19, General Code, as contained in the new Probate Code, effective January 1, 1932, the amended portion thereof being italicized in the following: “Provided, such child shall not be capable of inheriting property expressly limited to the heirs of the body of the adopting parent or parents; but shall be capable of inheriting property expressly limited by will or by operation of law to the child or children, heir or heirs at law, or next of kin, of the adopting parent or parents, or to a class including any of the foregoing * * *

It is suggested that this is a codification of the former act, and therefore it must be presumed that it is an interpretation of the meaning thereof. If this is true, and the interpretation is correct, there can be no doubt that the adopted children are entitled to take under the trust deed.

The amendment according to the editorial note pertaining thereto is new matter. Whether or not it represents an elucidation of that much of Section 8030 as was in the judgment of the committee and the Legislature embodied within the spirit of the statute, we cannot say. We must assume that the committee of the bar association acted with knowledge of the cases in Ohio on the subject and the editorial note indicates that the committee recognized that the rule theretofore had been that adopted children conld inherit from, but not through, the adopting parent.

We are bound by the judgment of the Supreme Court in so far as we can determine it. The Albright case is pertinent as we view it. At page 677 of 116 Ohio State, 157 N. E., 763, it quoted with approval from Phillips, Executor, v. McConica, Guardian, 59 Ohio St., 1, 51 N. E., 445, 69 Am. St. Rep., 753, particularly paragraph 4 of the syllabus, that atí ‘ ‘ adopted child is enabled, by Section 3140, Rev. St., to inherit from its adopter, but not, through him, from his ancestors. ’ ’

This quotation no doubt supports the reason for the construction of the phrase “child or children,” as we have interpreted it, when used by a stranger to the adoption. The settlor when he executed the deed of trust, if chargeable with any knowledge whatever on the subject, must have known that the adopted children could not take under the language employed in the deed by virtue of Phillips, Exr., v. McConica, Guardian, supra. If the question presented were one of first impression, and we did not have the express precedent found in the Albright case, we 'might reach a different conclusion. The rights of the adopted children to inherit under the terms of the statute were fixed by Section 8030, General Code, in effect when they were adopted, instead of the section as amended in the new Probate Code.

We therefore affirm the judgment of the trial court.

Judgment affirmed.

Allread, P. J., concurs.

Ivunkle, J., not concurring.  