
    Lawson v. Thomas.
    (Decided March 5, 1934.)
    
      Mr. Orion W. Nelson, for plaintiff.
    
      Mr. Jesse 8. Heslip and Mr. George G. Bryce, for defendant.
    
      Messrs. Geer & Lane, amici curiae.
    
   Richards, J.

This is an action in partition involving lot No. 102 in Germania Addition to the city of Toledo. A decree of partition was entered in the Court of Common Pleas, from which an appeal has been taken to this court.

The property was owned in common by Charles W. Thomas and his wife, Fannie Thomas, who were childless. The wife having died on December 28, 1925, the plaintiff, Magnolia Lawson, claims that she inherits, as an adopted daughter, the undivided half owned by Mrs. Thomas. The answer denies that the plaintiff is an adopted daughter, and denies that she inherits the above property from Fannie Thomas. The records of the Probate Court of Lucas county, which were introduced in evidence, show that the plaintiff on July 19, 1901, then known as Marguerite Jamieson, and about six years of age, was duly adopted by Charles W. Thomas and Fannie Thomas, and her name changed to Magnolia Thomas. The record of adoption imports absolute verity in this collateral proceeding, and it will be presumed that the provisions of law relating to adoption have been legally complied with. Martin v. Fisher, 25 Ohio App., 372, 158 N. E., 287.

The only remaining question in this case is whether the plaintiff, as an adopted child, inherited the half interest in the property which was owned by Mrs. Thomas at the time of her death.

On February 27, 1921, Fannie Thomas and her husband, the defendant Charles W. Thomas, each made a will naming the other as sole beneficiary, and the defendant was named as executor in the will of his wife. The wills were written at the same time and place, and both husband and wife had full knowledge of the provisions contained in the wills. Although Fannie Thomas died December 28, 1925, no attempt was made to probate her will until December 5, 1931, when application was made to probate the same as a lost will, and it was admitted to probate in this county as such on November 9, 1932. By the terms of her will she devised all of her property to her husband, the defendant Charles W. Thomas, and disinherited her adopted daughter, Magnolia Thomas, giving as a reason therefor that the adopted daughter had not shown any regard or affection for the testatrix since such daughter married.

The plaintiff, the adopted daughter, contends that Charles W. Thomas can take nothing under the will, because the provisions of Section 10542, General Code, in the form applicable to this case, read as follows:

“No lands, tenements, or hereditaments, shall pass to any devisee in a will, who for three years knows of its existence and has it in his power to control it, unless, within that time, he canses it to be offered for, or admitted to, probate. By sneh neglect, the estate devised to such devisee shall descend to the heirs of the testator.”

It appears from the evidence and the stipulations made by the parties that when the wills were executed they were placed and kept in a box in the pantry with other papers in the home occupied by the parties, and that the defendant remarried on October 23, 1926. About a year after his remarriage, he saw his first wife’s will in a tin box in the pantry in the home where he and she had lived, and where he was still living. His present wife saw the will at the same time, in the tin box in the pantry at that home. The evidence further discloses that on the occasion named the present wife, Bessie Thomas, removed the box from the pantry to a clothes closet, and that neither she nor the defendant has seen the will of Fannie Thomas since that date. The present wife, however, testifies that about three years later she found the will of her husband in the clothes closet, but that she could not find the will of Fannie Thomás. There is no evidence to show what became of the will of Fannie Thomas. It was, however, in the box in 1927, and presumably so continued, and they did not know it was lost until more than four years after the testatrix died. It is clear, therefore, that the defendant had full knowledge of the existence of the will and had it in his power to control it and submit it for probate. The failure to have the will probated manifestly resulted from the neglect of the defendant, and he is therefore barred as a devisee under the will, and the land described in the petition descends to the plaintiff as heir, subject only to the defendant’s right of dower.

This result is especially unfortunate in view of the fact that the defendant was the only devisee named in the will, but the statute requires it, and the decision is in accordance with Barron v. McCann, 25 Ohio App., 520, 159 N. E., 104; Loos v. Buffalo-Springfield Rubber Co., 32 O. C. A., 443, 35 C. D., 809; Moore v. Samuelson, 107 Kans., 744, 193 P., 369.

Judgment and decree for plaintiff.

Williams and Lloyd, JJ., concur.  