
    Smith et al. v. Hunter, Trustee, et al.
    
      Rule in will interpretation — That testator meant what he said — > Words “to the heirs at land’ include adopted child of beneficiary — i Although statute of adoption not in vogue — When will was executed — Law of wills.
    
    1. The rule that in the interpretation of a will the testator must be presumed to have meant what he said requires that a devise of a remainder “to the heirs at law” of a beneficiary for life be regarded as including an adopted child of the beneficiary, although there was not, when the will was executed, any statute for the adoption of children.
    2. In such case it is not required that the testator appears to have had the specific intention that the succession should be to an adopted child of the beneficiary for life if it appears that such child, it having been adopted in pursuance of laws enacted before the succession, is within the terms by which the testator declared his general intention.
    No. 12727
    Decided April 30, 1912.
    Error to the Circuit Court of Montgomery county.
    The judgment, whose reversal is sought, was rendered in the circuit court on appeal of the cause from the court of common pleas. Suit was brought by James B. Hunter, as trustee, under the will of Geórge W. Smith to obtain the judgment and direction of the court respecting the distribution of a fund in his hands, which was adversely claimed by persons whom he made defendants to the suit.
    George W. Smith died in Montgomery county, Ohio, in 1841, having executed his will in the preceding year. He devised the whole of his estate, both real and personal, to trustees for the benefit of his children, two sons and two daughters, Sophia and Louisa. The will directed with respect to the portions of his estate intended for the benefit of his sons that the trustee should convey the same to them in fee simple upon their attaining majority. With respect to the portions of his estate intended to be for the benefit of his daughters he directed that upon their arrival at age their portion should be set apart, but should still be held by the trustees in trust, the rents and profits only to be paid to them during life “with fee simple to the heirs of said daughters.” Except as to his household goods all property for the benefit of the daughters was given to the trustees with profits and income to the daughters for life, with remainder to their heirs at law.
    The controversy concerns the share which the trustee had held for the benefit of the testator’s daughter, Sophia, who was about ten years of age at the death of the testator. She afterward intermarried with Isaac H. Kiersted, whom she survived. They removed to Marion county, Indiana, where on September 16, 1876, they in pursuance to the laws of that state which give to an adopted child the same interest as a natural child in the estate of the parent, adopted the defendant in error, Hannah Moore Duthie. In both the states of Ohio and Indiana the statutes providing for the adoption of children were enacted after the death of the testator. Mrs. Kiersted never had issue of her body. She died in July, 1908. The fund held by the trustee for the benefit of the daughter, Sophia, during her life is now claimed, on the one hand, by her adopted daughter, Hannah Moore Duthie, and, upon the other, by her brother, George W. Smith, her sister, Louisa N. Fletcher, and Lida Manning Smith, the daughter of her deceased brother, James. The circuit court adjudged that the fund in the hands of the testator passes to the adopted daughter, Mrs. Duthie, and ordered its payment to her.
    
      Mr. W. Belville and Mr. D. B. Van Pelt, for plaintiffs in error.
    The absolute inability of the daughters to do anything with or in any way or manner to dispose of the corpus of the shares in which they had an interest to the extent of the net income is the keynote of this will as to the provision made for the daughters.
    This must be steadily borne in mind when we come to construe this word “heir” or “heirs” with reference to the “fee” that must be divided at. their death. Kiersted v. Smith, 8 N. P., 378.
    The principle which should guide the court in construing such words in seeking the intent of a testator was clearly stated by this court in the case of Schaefer v. Bernhardt, 76 Ohio St., 443.
    Let us look at this peculiar “heirship” which the Indiana act enabled “any person” to create. Our law merely recognizes the status which adoption under that act created. If we had no adoption act, no child adopted elsewhere could inherit property in Ohio, and the extent of its rights is measured by our own statute. Under our act (in fact, under both acts) such child is “heir” only in its relation as such child, and not only to such property as the adopting parent died seized of. It is a limited inheritance under that act, and not under the general statute of descent. Used as a general term descriptive of a class, the word “heirs” must mean “heirs” according to the general statute of descent and distribution.
    Property which an adopted child otherwise acquires can not go to its foster parents or brothers and sisters, but must go to its natural heirs, brothers and sisters, or others. Upson v. Noble, 35 Ohio St, 655.
    Such adopted child is not in law the “issue” of the adopting parents. It may inherit from such parent; but not through him from his ancestors. Phillips, Exr., v. McConica, 59 Ohio St, 1.
    Heirship by adoption ignores kinship. It is a strange, peculiar, anomalous, restricted heirship— an innovation upon the general line of descent— and in this case unknown to the law when the will was made, impossible then to foresee or imagine, introducing a stranger to all ties of blood, and plainly not within any general sense of the word “heirs” under the general statute, from which the word derived its meaning as' a general term descriptive of a class. Lathrop v. Young, 25 Ohio St., 451.
    Here there is no property to descend from Mrs. Kiersted to Mrs. Duthie. She cannot be an “heir” within the meaning of the adoption act. And not under that act, she cannot be an heir at all. As to this will and this property, it is the same as if that act “had never been passed.” Stewart v. Powers, 9 C. C, 143. .
    In the latter case proof was offered to show that the word as there used meant blood kin. In the case at bar no such proof was required. It could mean nothing else. Brower v. Hunt, 18 Ohio St., 311; Quigley v. Mitchell, 41 Ohio St., 375; Richardson v. Stockyard Co., 8 N. P., 213; Knese v. Hake, 16 O. D., N. P., 466; Theobald v. Fugman, 64 Ohio St, 473; Gibson v. McNeely, 11 Ohio St., 131; 1 Cyc., 932; Keegan v. Geraghty, 101 Ill., 26; Woodcock’s Appeal, 103 Me., 214.
    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. Van Matre v. Sankey, 39 Am. St. Rep., 226; Morrison v. Sessions’ Estate, 70 Mich., 297; Schafer v. Ernie, 54 Pa. St., 304; Russell v. Russell, 84 Ala., 48; Reinders v. Koppelman, 94 Mo., 338; Jenkins v. Jenkins, 64 N. H., 407; Commonwealth v. Nancrede, 32 Pa. St., 389; Sunderland’s Estate, 60 la., 732; Blodgett v. Stowell, 189 Mass., 142; Stout v. Cook, 77 N. J. Eq., 153; Lichter v. Thiers, 139 Wis., 481; Clarkson v. Hatton, 143 Mo., 52; Hockaday v. Lynn, 200 Mo., 456.
    On the principle involved here we cite also: Moore v. Moore, 35 Vt., 98; Van Derlyn v. Mack, 137 Mich., 146; Simpson v. Simpson, 9 C. C., N. S., 137.
    
      Mr. Murat W. Hopkins and Messrs. McMahon & McMahon, for defendants in error.
    Counsel for plaintiff in error admit that the status of Mrs. Duthie is determined by the law of Indiana. This status adheres to her in all other states, especially as we have a similar law in Ohio, and as Indiana, by express statute, establishes recognition of the Ohio law by comity. Section 8030, Revised Statutes of Ohio.
    Such position as Mrs. Duthie occupies in Indiana, she has in Ohio, subject to the laws of descent in Ohio. Ross v. Ross, 129 Mass., 243; Van Matre v. Sankey, 148 Ill., 536; Gray v. Holmes, 57 Kans., 217; Power v. Hafley, 85 Ky., 671; Melvin v. Martin, 18 R. I., 650; Simpson v. Simpson, 29 O. C. C, 503.
    A devise in trust, as in this case, creates an equitable estate in the land devised in the cestui que trust. Armstrong v. Zone’s Heirs, 12 Ohio, 287, cited 64 Ohio St., 512; Collier v. Grimesey, 36 Ohio St., 17; Isherwood v. Isherwood, 16 O. C. C., 279; Carter v. Reddish, 32 Ohio St., 1.
    Our supreme court has said on several occasions that the “intent of a testator is discovered not only by what he has said, but by what he has not said,” especially where the occasion was opportune. Hamilton v. Rodgers, 38 Ohio St., 255.
    No person had any vested interest in the estate created in Mrs. Kiersted outside of herself. The property was in trust during her life. Therefore, the legislature had the right to prescribe new rules of descent, create new heirships, and generally overturn, if it wished, the law of descent, so long as vested estates were not interfered with. Randall v. Kreiger, 23 Wall., 137.
    The donor was evidently interested in providing for the life beneficiary in a certain definite manner down to the moment of her death, and did so. But after that apparently he had no desire to limit the succession to his real estate to any particular line of persons.' He directed generally that it should go to her heirs at law; that is, to those persons whom the law should designate as her heirs when the time arrived. He threw the responsibility of selection upon the law. Gilliam v. Guaranty Co., 186 N. Y, 127.
    The word “heir” in its usual and technical sense, means such person or persons as would inherit property from Mrs. Kiersted, according to the law of descent prevailing at her death, if she died intestate and was seized in fee of the property in question. It is a general term. It described no particular individual or individuals, as of the time it was used. The heirs presumptive may never be the actual heirs. They may die, or the law of descent may be changed before the time comes for them to develop into heirship. As heirs presumptive they have no possible interest, which they could convey to a stranger. Needles’ Exr. v. Needles, 7 Ohio St, 432; Smith v. Smith, 57 Ohio St, 27; Barr v. Denney, 79 Ohio St, 358; Lavery v. Egan, 143 Mass, 392.
    To support our contention in favor of Mrs. Duthie, we cite the following cases in Ohio, as conclusive of her right: Weston v. Weston, 38 Ohio St, 478; Miller v. Miller, 29 O. C. C, 353, 77 Ohio St, 643.
    But Ohio does hot stand alone in such ruling. The following cases, outside of our state, are even more directly in point, if the question is to be settled as one of authority. Kohler’s Estate, 199 Pa. St, 455; Butterfield, v. Sawyer, 187 Ill., 598; Durbin v. Redman, 140 Ind., 694; Olney, Trustee, 27 R. I., 495.
   Shauck, J.

The conclusion of the circuit court that upon the death of Sophia C. Kiersted, the fund which the trustee had held for her benefit passes to her adopted daughter, and not to her brother, sister and her niece, is challenged by counsel for the plaintiffs in error in an argument which is very interesting and impressive. It is said, and truly, that upon the death of Mrs. Kiersted this portion of the fund passed under the will of George W. Smith, her father, and not under the statutes of descent and distribution as her property. This is obviously so, for by the very clear and explicit terms of the will her estate and interest in the fund were restricted to its income and to her life, and the testator himself disposed of his entire property and all interests and estates therein.

Our attention is, therefore, very properly directed to the ascertainment of the testator’s intention. In clear and comprehensive terms he gave his entire estate to trustees with direction that the portions thereof which were intended to be for the benefit of his sons should be delivered and conveyed to them in fee simple upon their attaining their majority, and the portion intended for the benefit of his daughters should be held by the trustees during the life of the daughters, the income only being payable to them, and that upon the death of a daughter the portion which had been so held for her benefit should pass “to her heirs at law.” It is said that the phrase so used by the testator to designate the person who should take the corpus of the fund in the circumstances which have now occurred could not have been intended by the testator to include an adopted child, because at the time of the execution of the will there was not, either in the state of Ohio where the will was executed or in the state of Indiana where the adoption occurred and the testator’s daughter died, any statute providing for the adoption of a child and giving to it capacity to inherit from the adopting parent; that the scheme' of the will shows the testator’s great solicitude for those of his own blood who have been excluded by the judgment of the circuit court, and that since the provisions of the will gave the daughters control of the income only of the property, leaving them without power to dispose of the corpus by either deed or will, the only modes of disposition which could have been in the contemplation of the testator, to permit it to be now carried to one not of the testator’s blood is to permit an evasion of his clearly indicated intention. Not only are these considerations urged with much vigor and impressiveness by counsel for plaintiffs in error, but they receive some support from observations made in some of the cases cited’ in their brief. These considerations, if accorded all the weight to which they seem to be entitled, justify the conclusion that the testator did not have the specific intention that upon the death of one of his daughters the fund which had been held by the trustees for her benefit should pass to a child which she had adopted. They may also start the conjecture that if the testator had anticipated the relation of parties which the case now presents he would have used different language to designate the persons to whom this fund should pass. But while the will shows that the testator had the usual concern of a father for his children, we do not observe that it contains any provisions indicating special concern for his descendants more remote than his sons and daughters. It does show so much solicitude for the comfort of his daughters during their lives that he placed the propertjr from which their support was to be derived beyond the chance of mismanagement by them, or by those who might acquire influence over them. The will suggests no other reason for limiting their control to the income of the property, while that intended for the sons was to pass to them in fee simple upon their attaining their majority. If one of the sons had died at' the time of the death of Mrs. Kiersted, leaving an adopted child, its right to inherit from the adopting father would not be seriously questioned, but the will contains nothing to indicate that in that regard the testator had different desires with respect to the provisions for his sons and his daughters. Terms limiting the succession to the daughter’s heirs at law, who should be of her blood, were omitted by the testator. If the court should supply them it would be amending his will rather than construing it. However confidently we might follow counsel in the conjecture that the testator would have used such terms if he had foreseen all that has now occurred, we should still be admonished that in ascertaining the meaning of a testator it is of first importance to assume that he meant what he said. The meaning of the phrase “her heirs at law” which the testator used to indicate his intention has not been changed since he used it for that purpose. It then meant, and it now means, those who by law might be entitled to succeed to the property of which she should die seized as of an estate of' inheritance. We must presume that the will was drawn with the knowledge that as the testator’s daughters were then living, they at that time had no heirs at law, that those heirs would be selected by the law in force at the time of their death, when for the first time they could have heirs at law. It must also have been comprehended that the laws of descent and distribution have been constantly subject to change throughout the ages which have intervened since the times when, without “the law’s delay,” the strongest man who happened upon the scene appropriated to himself the things which had been the subject of property in a deceased person. To the validity of the claim of the adopted daughter, it is not necessary that the testator should have had the particular intention that the fund should pass to a child by adoption. It is sufficient that she is the person designated by the law as the heir of the daughter and is thus within the terms of the gift over, the fund having accomplished the testator’s dominant desire that the daughter should have an assured support during her life. A statute is not more necessary to the heirship of an adopted daughter than to that of a person related by blood, and it seems to be' conclusive of this subject that the statute makes the adopted daughter of the testator’s daughter her heir, while there is no statute which in these circumstances gives that character to the plaintiffs in, error.

Judgment affirmed.

Davis, C. J., Johnson, Donahue and O’Hara, JJ., concur.  