Albright v. Albright

• Decision Date: 25 May 1927
• Docket Number: 20306
• Citation: 116 Ohio St. 668,157 N.E. 760
• Parties: Albright Et Al. v. Albright Et Al.
• Court: Ohio Supreme Court

157 N.E. 760

116 Ohio St. 668

Albright Et Al. v. Albright Et Al.

No. 20306

Supreme Court of Ohio

May 25, 1927

Wills - Child adopted by son after testator's death - Does not take as legal representative of testator's family, when.

A testator devised certain land to his son Isaac Albright in a will which contained the following provision: "The land above devised to my son Isaac Albright he is to have the use 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." Isaac Albright died without children, having adopted a child, Jesse Albright, fifteen years after the death of the testator. In an action for partition and quieting of title, hem that the adopted child is not a "legal representative of the Albright family" and does not take under the will.

This action was instituted in the court of common pleas of Seneca county as an action for partition and for quieting title. In the petition the defendants were alleged to be tenants in common with the plaintiffs in the real estate therein described, and the petition prayed that title be quieted in the plaintiffs against the claims of Jesse Albright and Yetta Albright to the lands in question. The plaintiffs claimed that they had an interest in the real estate under the terms of the will of their grandfather Charles Albright, which will reads in its material portions as follows:

"Item 2. I give to my wife Elizabeth Albright the use of the eighty acres of land on which we resided in Adams township, prior to our moving to Reed township, during her natural life. I also give to my wife all of my household goods that she may desire to take. I also give her one thousand dollars in money. I reserve out of the above mentioned eighty acres of land two acres where the barn now stands near the present residence of my son Isaac. I also reserve the right of way through the lane in front of the house where I formerly lived for my son Isaac to pass to a part of the land I have hereinafter devised to him. The above bequest to my wife is to be in lieu of dower and years support out of my estate.

"Item 3. I give to my son John Albright for his use and occupation during his natural life the farm on which he resides in Scipio township, and I desire that at his death that said farm vest in fee simple in the heirs of the said John Albright. Said farm contains one hundred and sixty acres and is known as the David Neikirk farm.

"Item 4. I give and devise to my son Jacob Albright during his natural life for his use and occupation the farm on which he now resides in Adams township containing one hundred and twenty acres and known as the Samuel Whiteman farm. I also give to my said son Jacob Albright for his use and occupation forty acres of land adjoining the above mentioned one hundred and twenty acres on the south and known as the Rule forty acres. In consideration of the bequest of the above mentioned forty acres of land to my son Jacob is to receive three thousand and eight hundred dollars less out of my personal estate that is received by each of my other children. The above described premises at the death of my son Jacob to vest in fee simple in his children.

"Item 5. I give to the children of my son David Albright deceased for their use during their natural life one hundred and sixty acres of land in Thompson township and known as the John Kagerrise farm, and at their death to vest in fee simple in their children. If they should die leaving no children then I desire that it go to their legal representatives of the Albright family. I desire that the above mentioned land devised to my son David's children together with what they receive from my personal estate together with the proceeds of the sale of any of my real estate their share shall be placed in the hands of my son Jacob Albright for their use until Henry M. Albright, one of the children of my said son David, shall arrive at the age of twenty-five years. When said children shall come into possession of what I leave them by this will.

"Item 6. I give to my son Isaac Albright the eighty acre farm on which he now resides known as the Samuel Elder farm and the eighty acre farm known as the Joseph Stephenson farm both of said farms being in Adams township. Also eighty-one acres of land in Thompson township immediately east and adjoining the farm devised to my wife said farm formerly owned by Daniel Henry and John Kistler. At the death of my wife I give the farm devised to her to my son Isaac Albright. Also the two acres where his barn is situated. The land above devised to my son Isaac Albright he is to have the use 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. And I desire that my son Isaac Albright have no further part of my estate either real or personal.

"Item 7. I give to my wife the cow that we now have fifteen bushel of wheat thirty bushel of corn. And the provisions that we may have on hand at the time of my death. Also my share of the wheat that is growing On the farm that I have devised to her.

"The lands above devised by me to my wife, children and grandchildren are situate in the county of Seneca and state of Ohio. I desire that my executor give to my brother John such sums of money out of my estate as in his judgment he may think best."

The defendant Jesse Albright is the adopted child of Isaac Albright, having been adopted 15 years after the death of Charles Albright, and Yetta Albright is the widow of Isaac Albright. Jesse Albright and Yetta Albright answered, claiming title to the real estate in question under the terms of the will of Charles Albright, and asked that their title to the said real estate be quieted against the plaintiffs and the other defendants.

The court of common pleas, after trial upon the merits, rendered judgment in favor of the plaintiffs. An appeal was perfected to the Court of Appeals, which tribunal entered judgment in favor of the defendant Jesse Albright and found against the plaintiffs and the other defendants, including Yetta Albright, dismissed the petition of the plaintiffs and the answers and cross-petitions of the other defendants in the case, and quieted title to the real estate mentioned in item 6 of the will of Charles Albright in Jesse Albright, the adopted son of Isaac Albright.

The case comes into this court upon allowance of motion to certify the record.

Mr George E. Schroth, and Mr. Homer Metzgar, for plaintiffs in error.

Messrs Spitler & Flynn, for defendants in error.

ALLEN J.

The question of substance involved in this case relates to the intention of the testator, Charles Albright, as to the disposition of the real estate covered by item 6 of the will, after the death of his son Isaac. It is the contention of the plaintiffs in error that the language of the entire will shows that the testator intended that the remainder interest should vest in the natural child or children of his son Isaac, and that if Isaac had no such children the remainder interest should vest in the heirs at law of Isaac Albright, of the Charles Albright blood.

It is the contention Of the defendants in error that the testator intended that the remainder should vest in whatever legal heirs Isaac Albright had at his death, that by the proceedings of adoption Jesse Albright became the child and legal heir of Isaac and Yetta Albright, as if begotten in lawful wedlock, and that at the death of Isaac Albright, Jesse Albright was his child, his heir at law, and the legal representative of the Albright family, and that hence the title in fee simple to the land in question vests in Jesse Albright under the will.

The statute under which Jesse Albright was adopted is to be found in Sections 3139 and 3140 of the Revised Statutes, which read as follows:

Section 3139. "When the foregoing provisions are complied with, if the court is satisfied of the ability of the petitioner to bring up and educate the child properly, having reference to the degree and condition of the child's parents, and the fitness and propriety of such adoption, it shall make an order setting forth the facts, and declaring that, from that date, such child, to all legal intents and purposes, is the child of the petitioner, and that its name is thereby changed."

Section 3140. "The natural parents, except when such child is adopted under the provisions of Section 3137a, shall, by such order be divested of all legal rights and obligations in respect to the child and the child be free from all legal obligations of obedience and maintenance in respect to them. Such child shall be to all intents and purposes the child and legal heir of the person so adopting him or her, entitled to all the rights and privileges and subject to all the obligations of a child of such person begotten in lawful wedlock; but on the decease of such person and the subsequent decease of such adopted child without issue, the property of such adopting parent shall descend to his or her next of kin, and not to the next of kin of such adopted child."

The statute as amended in 1921, and in force at the time of the death of Isaac Albright in 1925, is to be found in Section 8030 of the General Code, the pertinent portion of which reads as follows:

"* * * Except when such child is adopted under the provisions of Sections 8026 and 8027, upon such decree of adoption the natural parents of the child, if living, shall be divested of all legal rights and obligations due from them to the...