
    Pickering, Admr., v. Koesling et al.
    (Decided March 19, 1928.)
    
      Mr. F. K. Pickering, for plaintiff.
    
      Messrs, Klein, Harris & Dielvm, and Messrs. Payer, Minshall, Karch & Kerr, for defendants.
   Vickery, J.

This cause comes into this court on appeal from the common pleas court of Cuyahoga county.

It seems that the plaintiff, F. K. Pickering, was the administrator of the estate of Mathias Hartman, who died intestate, leaving no wife or children, and possessed of an estate which amounted to something like $22,000. It seems that, Mrs. Koesling having no children of her own, she and her husband, G. Herman Koesling, one of the defendants, adopted two children, and that she died before her brother, the decedent, Mathias Hartman, of whose estate Pickering is administrator. It seems that the decedent left eight first cousins and six children of three deceased first cousins surviving him, who are next of kin, and entitled to inherit this property, unless these two foster children of the decedent’s sister are preferred.

It is claimed by the foster children that under the statute they are nearer in descent to the decedent than the other claimants of this estate, but they admit, in open court, that the contestants are relatives entitled to inherit if they are not, but that these claimants are more remote in relationship to the decedent than they, and they base this contention upon the statute, Section 8030, General Code, which provides that foster children are to be deemed and treated as natural children and entitled to all the benefits that natural children would have from the parents. It is claimed in argument that, as the law now stands, they can inherit not only from the foster father and mother, but through -the foster parents.

Now it must be remembered that the foster mother, the sister of this decedent, died long prior to the decedent, and that the foster mother was never seized, either directly or in expectancy, of anything that was left by the brother. Of course, if she had natural children, her own children, they would be the nephews and nieces of the brother of the foster mother, but, because the statute makes the foster children capable of inheriting from the father and mother, does that make them nieces and pephews of a brother or sister of the foster father or foster mother? We think not. We think the law is well settled in Ohio, as cited in the case of Quigley v. Mitchell, 41 Ohio St., 375, where the court expressly holds that foster children can inherit from but not through the foster parents. This doctrine was reaffirmed and reasserted in the case of Phillips, Exr., v. McConica, Gdn., 59 Ohio St., 1, 51 N. E., 445, 69 Am. St. Rep., 753; but it is argued that since that case was decided the statute has been changed. It has been changed, but we think the change has still made it clear that, excepting the foster brothers and sisters, they could not inherit from any other relative. Under the law as it now stands, if the foster parents of these claimants had a natural child, and the decedent in the instant case had died intestate,, the money would have gone to the nephew or niece, the natural child of the decedent’s sister, and, had such natural child died after inheriting that money, then the foster brother and sister could have inherited from him. That is what the change of the statute means, and that is all it does mean. It does not enlarge the right to inherit through foster parents, except as is mentioned in the statute.

It is argued that, in the case of Kroff v. Amrhein, 94 Ohio St., 282, 114 N. E., 267, this rule laid down in the 41st and 59th State Reports was changed. We do not so read that case. It is also argued that in the case of Albright v. Albright, 116 Ohio St., 668, 157 N. E., 760, the rule has been changed. It is curious to notice that in the 116th Ohio State the court refers to the 59th Ohio State, and asserts that that is still the law in Ohio. The 59th Ohio State indorses as the doctrine that which is laid down in the 41st Ohio State, and in the 116th Ohio State the court says the law laid down in the 59th Ohio State, and therefore in the 41st Ohio State, is still the law in the state of Ohio.

It must be admitted that in this case the foster children were more entitled from a sentimental sense to this property than the distant relatives in Indiana and Illinois, but hard cases make bad law, and courts must be governed, not by sentiment, but by the rules of law, and, the doctrine in this respect as laid down in Ohio having become a rule of property, the court cannot lightly set aside that rule and make a precedent which would rise up to mock it in the future. We think, therefore, that the law is well settled in Ohio that foster children are entitled to all the rights of natural children so far as inheriting from the foster parents, and it will take a positive statute to change the rule of property to make them inherit through -as well as from the foster parents.

To show that foster children are not the same as natural children, suppose the foster children had parents that were rich and died intestate, the foster children then, notwithstanding they had been adopted by somebody else, and somebody else was liable for their support, would still be the heirs of the natural parents, and nobody would claim, because they were entitled to inherit from their natural parents, that their foster brothers and sisters, children of the foster parents, would be entitled to inherit with them from their natural parents. This shows a different relation is existing between them, and the statute was passed to protect, so far as it could protect, the foster children, so that they should be treated like natural children out of the estate of their foster parents who died intestate. They can participate in a division of the foster parents’ estate, for it would be manifestly unjust to deprive them of benefits when they have always been regarded as children, but how that can affect the rights of third persons, outside persons, who had nothing to say about their adoption, and were not responsible for their keep, nor entitled to their services in any way, we do not understand.

We think it is clear and unequivocal that the foster children can inherit from the foster parents, but they cannot inherit through them, and a decree will be entered for the plaintiff.

Decree for plaintiff.

Sullivan, P. J., concurs.

Levine, J., not participating.  