
    Miller, Admr., v. Shepard et al.
    (Decided June 1, 1928.)
    
      Messrs. Carson, Moore & Howes, for cross-petitioner, Louella Miller Shepard.
    
      Messrs. McCushey & Cotton, for cross-petitioners, Lemuel L. Woods et al.
   Funk, J.

Raymond E. Miller, as administrator of the estate of George Y. Miller, filed his petition in the common pleas court of Summit county under favor of Section 10857, General Code, asking the court to instruct him as to whom he should pay the funds in his hands as such administrator.

The case was heard upon an agreed statement of facts, the pertinent parts of which are as follows:

On or about June 8, 1881, George V. Miller and Eliza A. Miller, who were husband and wife, adopted the defendant Louella Miller Shepard, and thereafter said adopting mother, Eliza A. Miller, died, and the adopting father, George Y. Miller, later remarried; his second wife being Jennie Miller. Said Jennie Miller acquired certain real estate by purchase during coverture with said George Y. Miller, and continued as the owner thereof in fee simple until her death. Said Jennie Miller died November 12,1925, intestate, and without children, either natural, or adopted, and leaving her said husband, George Y. Miller, who thus came into possession of said property as her only heir at law, subject only to her debts, under the provisions of Section 8571, General Code.

The plaintiff, Raymond E. Miller, on November 28, 1925, was appointed administrator of her estate, and on January 21, 1926, and before her estate was settled, said George V. Miller died intestate, leaving no widow and no natural-born children or heirs thereof, but leaving said Louella Miller Shepard as his only adopted child.

Said George Y. Miller also left two brothers and two sons of a deceased brother, and said Jennie Miller also left two brothers and two sisters, all of whom were made parties defendant in the court below and are parties in this court. Said Raymond E. Miller was also appointed administrator of the estate of George V. Miller, deceased.

Said real estate left by said Jennie Miller, deceased, was sold by said Raymond E. Miller, as administrator of the estate of Jennie Miller, to pay debts. There was a balance left of $2,185.19, which said Raymond E. Miller, as administrator of the estate of Jennie Miller, turned over to himself as administrator of the estate of George Y. Miller, deceased, and is the fund in his hands for distribution.

Said Louella Miller Shepard filed an answer and cross-petition, claiming said fund as sole heir of said George V. Miller, deceased, under the laws of descent and distribution. An answer and cross-petition was also filed on behalf of the brothers and sisters and legal representatives of both decedents, George Y. and Jennie Miller, claiming that said fund passes and descends to them, under the provisions of Section 8577, General Code.

The question thus presented by the pleadings is: Does said adopted daughter of George Y. Miller inherit this money by virtue of the adoption laws and the laws of descent and distribution, or does it go one-half to the brothers and sisters of George Y. Miller, deceased, and one-half to the brothers and sisters of Jennie Miller, deceased, under the provisions of Section 8577, General Code?

In other words, is an adopted child “issue” of the adopting parent within the meaning of the word “issue” as used in Section 8577, and does it thus stand in the same position as a natural-born child, and thereby prevent the property of an intestate decedent, which came from a deceased spouse, from passing one-half to the brothers and sisters of the decedent and one-half to the brothers and sisters of the deceased spouse from whom the property came, under the provisions of said Section 8577, which, in part, reads:

“When the relict of a deceased husband or wife dies intestate and without issue, possessed of any real estate or personal property which came to such intestate from a former deceased husband or wife by deed of gift, devise or bequest, or under the provisions of Section 8574, then such estate, real and personal, shall pass to and vest in the children of such deceased husband, or wife, or the legal representatives of such children. If there are no children or their legal representatives, living, then such estate, real and personal, shall pass and descend, one-half to the brothers and sisters of such intestate, or their legal representatives, and one-half to the brothers and sisters of such deceased husband or wife from which such personal or real estate came, or their legal representatives. ’ ’

The court below held in favor of the adqpted child, and the case is in this court on appeal by the brothers and sisters, or their heirs, of both decedents, the said George V. and Jennie Miller.

Counsel for the brothers and sisters of the decedents, George Y. and Jennie Miller, seem to base a large part of their argument upon the premise that the property for distribution is ancestral, and the property of Jennie Miller, deceased, and not the property of George Y. Miller, deceased, and counsel contend that, since it is definitely established that an adopted child can inherit only the property of the adopting parent, and cannot inherit the property of an ancestor through su&h parent, Phillips, Exr., v. McConica, Gdn., 59 Ohio St., 1, 51 N. E., 445, 69 Am. St. Rep., 753, and Quigley v. Mitchell, 41 Ohio St., 375, the word “issue,” therefore, as used in Section 8577, does not include an adopted child, for the reason that, if the fund in question is the property of Jennie Miller, deceased, then it passes, not from the adopting father, but through him, from his deceased spouse. We cannot agree with such position.

That this fund is not ancestral and became the property of said George Y. Miller upon the death of Jennie Miller, intestate and without issue, subject to the debts of her estate, under the provisions of Section 8574, General Code, and that he could dispose of it during his life by contract or will as he saw fit, and that upon his death, without having disposed of it by will or otherwise, it passed not only to his children, but, in the absence of children, descended alone to his heirs at law, was definitely settled by our Supreme Court in Brower v. Hunt, 18 Ohio St., 311.

This decision has never been reversed, and has been commented on and cited with approval by our Supreme Court, and other courts of Ohio, to the present day.

This section (8577) of the Code is recognized by our Supreme Court as having been passed for the purpose of avoiding the supposed injustice of the rule established in Brower v. Hunt, which was that the whole of the non-ancestral property which came to the relict from a deceased spouse descended, upon the death of the relict intestate and without issue, alone to his-or her kindred. Although our Legislature enacted the law which is now Section 8577 for the purpose of avoiding the supposed unjust effect of the rule established in Brower v. Hunt, the Legislature at the same time seems to have acquiesced in and accepted the rule thus established. That the Legislature acquiesced in and accepted this rule is apparent from the fact that this law as originally passed, and the acts amendatory thereof, merely limit the amount of property passing to the brothers and sisters, or their legal representatives, of such relict, by taking the half of it from them and giving it to the brothers and sisters, or their legal representatives, of the spouse from whom the property came, and left the other half to descend as the whole of such property had theretofore descended. This law, as originally enacted, and as amended, and as in force since the last amendment thereof became effective in July 1923 (110 O. L., 13), does not change the character of such property or the way in which such property descends, Stembel v. Martin, 50 Ohio St., 495, 35 N. E., 208; Stockton v. Frazier, 81 Ohio St., 227, 90 N. E., 168, 26 L. R. A. (N.S.), 603; Larkins v. Routson, 115 Ohio St., 639, 155 N. E., 227.

Furthermore, it is apparent that this fund is the property of George Y. Miller, for the reason that under Section 10816, General Code, it came to him as real estate, and under the holding in Pence v. Pence’s Admr., 11 Ohio St., 290, and Tuttle v. Northrop, 44 Ohio St., 178, at page 182, 5 N. E., 659, it passed from him as personal property under the provisions of Section 8578, General Code.

It is therefore clear that this fund was the property of said George V. Miller, and descends from him as his property, and not through him, as the property of Jennie Miller.

It is further contended by counsel for the brothers and sisters of said decedents that the history of the laws of descent and distribution of this state, and the tendency of the decisions of our courts, indicate that it was the intention of our Legislature to limit the meaning of the word “issue” in Section 8577 to issue of the body of such relict spouse, and that it does not include an adopted child. We do not so interpret the history of the laws of descent and distribution or the decisions of our courts.

A determination of the question under consideration depends upon the intention of the Legislature in enacting our adoption laws, as appears from the language used to express that intention, and upon its intention and purpose in enacting what is now said Section 8577, in the light of the holding in Brower v. Hunt, and in subsequent decisions concurring in such holding, and upon the language used by the Legislature to express that intention and purpose.

We have hereinbefore pointed out the purpose of Section 8577. The language of our adoption statutes pertinent to the question at issue is found in Section 8030, General Code, and 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.”

Some claim is made that the clause following this language in said section, which reads, “Provided, such child shall not be capable of inheriting property expressly limited to the heirs of the body of the adopting parent or parents,” supports the contention on behalf of the brothers and sisters of decedent. We think said clause has no bearing whatever upon the situation in this case, as there are no words in Section 8577 expressly limiting such property to the heirs of the body of the adopting parent, and it merely uses the word “issue” alone, without any limitation. Moreover, it would seem that there is more reason to claim that a clause in said section, subsequent to the last quoted clause, which reads, “And provided, also, if such adopting parent or parents shall have other child or children, then the children by birth and adoption shall, respectively, inherit from and through each other as if all had been children of the same parents born in lawful wedlock,” supports the contention on behalf of the adopted child.

In the case of Cochrel v. Robinson, 113 Ohio St., 526, 149 N. E., 871, the Supreme Court held that a designated heir, as provided for in Section 8598, General Code, was included within thé word “issue, ’ ’ as used in Section 8577. The judge who wrote the opinion in the Cochrel case, in discussing the question, says, at page 533 (149 N. E., 873):

“These provisions of the statutes creating the rights of inheritance between the parties to an adoption or the parties to a designation of an heir and the provisions of the law of descent and distribution of intestate estate are in pari materia, and should, therefore, be construed as one law.
‘ ‘ The word ‘issue’ has several meanings in the law of decedents.’ estates. What its meaning may be in a given case depends upon the circumstances under which it is used, whether it be found in a will, a contract, or statute. Its primary signification imports descendants and has to do with the blood of the ancestor, but by general nse the word ‘issue’ has often a wider signification and may include-not only ‘children’ but ‘grandchildren,’ ‘descendants,’ and .‘adopted children’.”

The opinion then cites many authorities to show that the word “issue” is held to include children whose relation depends upon statutory enactment,such as a child by adoption or a designated heir.

Further along in this opinion the judge says: •

“We, therefore, ascribe the same meaning to the expression ‘child born in’ lawful wedlock and ‘issue of’ those united in lawful wedlock.”

And then quotes with approval the following from Buckley v. Frasier, 153 Mass., at page 527, 27 N. E., 769:

“The general intent of the statute (Pub. Sts., c. 148) is to place the ádopted child in relation to either of his adopting parents, so far as their property is concerned, in the same position that he would be if their natural child. No stronger expression could be used than that which permits him to take the share of the property of the adopting parent ‘that he would have taken if born to such parent in lawful wedlock. ’ That the adopted child should be deprived of that which is given so explicitly is not readily supposable. There is less difficulty in holding that the word ‘issue’ is used in the sense of child or children, and as thus construed it includes adopted children. If construed otherwise, the adopted child no longer occupies the relation of a child born in lawful wedlock to either of his or her adopting parents.”

In the case of Surman v. Surman, 114 Ohio St., 579, 151 N. E., 708, our Supreme Court held that the words, “afterwards has a child living,” comprehend an adopted child living after the testator’s death, who was adopted after the making of the will, and that snch child could have the will revoked as to it under the provisions of Section 10561, General Code, the same as a natural-born child could.

Following the reasoning of the Supreme Court in these two cases, and applying it to the language used in our adoption laws, and taking into consideration the purpose for which the law that is now Section 8577, General Code, was enacted, we are impelled to the conclusion that our Legislature intended to confer upon a child legally adopted under the laws of Ohio all the inheritable rights of a child born in lawful wedlock, and that such adopted child is included within the meaning of the word “issue” as used in Section 8577; in other words, so far as that section is concerned, the adoption laws give to the adopted child the status of a child actually born to the adopting parent in lawful wedlock.

This holding is also sustained in Smith v. Hunter, Trustee, 86 Ohio St., 106, 99 N. E., 91, and is not inconsistent with other decisions in Ohio cited by counsel on either side.

Our attention is called to the case of Albright v. Albright, 116 Ohio St, 668, 157 N. E., 760, by counsel for the brothers and sisters. It will be observed that this case involves the construction of a will, and has no application to the instant case.

The same counsel also call attention to the case of Theobald v. Fugman, 64 Ohio St., 473, 60 N. E., 606. It will be noted that the statute, Section 10504, General Code, under construction in that case, used the words “issue of his body, or an adopted child, living,” and thus definitely mentioned issue “of his body” and “adopted child.” This case was fully considered and distinguished in Cochrel v. Robinson, supra, as was also the case of Kroff v. Amrhein, 94 Ohio St., 282, 114 N. E., 267, which latter case, in the opinion of the writer, is in reality more in harmony with and in support of the holdings in Cochrel v. Robinson, and Surman v. Surman, supra, than inconsistent with and distinguishable from them.

It, therefore, follows that George V. Miller did not die intestate, “without issue,” and that the fund in question descends from him to the defendant Louella Miller Shepard as personal property under Section 8578, General Code.

Decree accordingly.

Washburn, P. J., and Pardee, J., concur.  