Green v. Woodard

• Decision Date: 09 May 1974
• Citation: 318 N.E.2d 397,40 Ohio App.2d 101
• Parties: , 69 O.O.2d 130 GREEN, Appellant, v. WOODARD, Appellee.
• Court: Ohio Court of Appeals

Page 101

40 Ohio App.2d 101

318 N.E.2d 397, 69 O.O.2d 130

GREEN, Appellant, v. WOODARD, Appellee.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

May 9, 1974.

Syllabus by the Court

1. Enactment of R.C. 2105.17 providing that illegitimate children can inherit from and through their mother as if born in lawful wedlock expanded and modified the word 'child' or 'children' appearing in R.C. 2105.06, the statute of descent and distribution, to include those children. After the enactment of R.C. 2105.17, the operation of the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States required that the words 'child' or 'children' include all children, both legitimate and illegitimate, whether inheriting from and through their mother or father. Labine v. Vincent (1971), 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288 distinguished.

2. The words 'child' or 'children' appearing in R.C. 2105.06, the statute of descent and distribution means all children, both legitimate and illegitimate.

3. The word 'children' appearing in R.C. 2105.10, the half and half statute, means all children, both legitimate and illegitimate.

Austin T. Klein, Cleveland, for appellant.

Garry B. Schwartz, Cleveland, for appellee.

KRENZLER, Judge.

The plaintiff filed a complaint on December 27, 1971 in the Common Pleas Court of Cuyahoga County alleging that she is the daughter of Liston Thomas, who died on May 11, 1971, and the stepdaughter and an heir at law of Emmaline Thomas, the deceased wife of Liston Thomas, who died on September 7, 1971.

Plaintiff further alleges that on August 27, 1971, the defendant, Elijah J. Woodard, acquired certain real estate from said Emmaline Thomas who was incompetent and comatose at the time she executed the deed, and that she lacked capacity to execute said deed. Plaintiff alleges that she is entitled to a share of the real estate as the stepdaughter under the half-and-half statute and otherwise as the daughter of the deceased Liston Thomas.

Defendant filed interrogatories which were answered by the plaintiff. Also plaintiff's deposition was taken.

On May 18, 1972 the defendant filed an answer alleging that the plaintiff does not have the capacity to bring this action because she is not related to Liston Thomas in such a manner as to permit her to benefit from the half-and-half statute, R.C. 2105.10. Further defendant alleges that on or about June 11, 1971 the Probate Court of Cuyahoga County in the estate of Liston Thomas, Case No. 772623 transferred said property in a manner which would preclude plaintiff from having any interest in said property.

Defendant filed a motion to dismiss, which was overruled.

On December 19, 1972, the defendant filed a motion for summary judgment and attached an affidavit of Attorney Garry Schwartz, portions of the deposition of the plaintiff, a birth certificate of the plaintiff, and a brief.

The plaintiff filed a brief in opposition to the motion for summary judgment and no other documents.

Defendant's arguments were that at the time the plaintiff was born, her natural mother was not married to the person she alleges to be her natural father, namely, Liston Thomas, and that he never formally acknowledged the plaintiff as his child, nor did he adopt her.

It is the plaintiff's position that her natural father was Liston Thomas, who died on May 11, 1971, leaving as survivors a spouse, Emmaline, who was not the plaintiff's mother, and the plaintiff and that at his death he was seized of real property at Keyes Avenue, Cleveland, Ohio. The plaintiff alleged that she is entitled to a share of the property under R.C. 2105.06(B), the statute of descent and distribution, as the child of Liston Thomas, or in the alternative under R.C. 2105.10, the half and half statute.

The trial court granted the defendant's motion for summary judgment and plaintiff has taken this appeal and assigns as error:

The Court of Common Pleas erred to the prejudice of plaintiff-appellant in granting defendant-appellee's motion for summary judgment.

Plaintiff-appellant and defendant-appellee will be referred to as the plaintiff and defendant respectively.

It is plaintiff's contention that R.C. 2105.06 and R.C. 2105.17 are unconstitutional as being invidious discrimination in violation of the Fourteenth Amendment to the United States Constitution.

Defendant contends that the plaintiff cannot prevail because the statute of descent and distribution, R.C. 2105.06, and the half-and-half statute, R.C. 2105.10, do not allow illegitimate children to inherit from and through the father. In order for an illegitimate child to inherit as a child he ¹ must have been adopted under R.C. 3107.13, or acknowledged under R.C. 2105.18, or he can take through the mother under R.C. 2105.17, but he cannot take from and through the father.

I.

Much has been written concerning the discriminatory practices and treatment of illegitimate children under feudal and common law. In the past illegitimate children were treated as 'nothing' and reasons given for such discrimination were to: (1) preserve feudal tenure; (2) discourage illegitimate relationships; (3) avoid artificial presumptions of intent; (4) encourage legitimate family relationships; (5) protect the rights of legitimate children.

Application of these theories has only resulted in discrimination against illegitimates and has not reduced illegitimate births, but to the contrary there has been an increase in illegitimate births. Rather than again discuss in detail these past discriminatory practices, reference is made to Judge Leo Jackson's opinion and also to the concurring opinion in Butcher v. Pollard (1972), 32 Ohio App.2d 1, 288 N.E.2d 804. Also see Chief Justice O'Neill's dissenting opinion in Baston v. Sears (1968), 15 Ohio St.2d 166, 169, 239 N.E.2d 62 ² and Justice Schneider's discussion in Franklin v. Julian (1972), 30 Ohio St.2d 228, 283 N.E.2d 813.

II.

In this case we are dealing with the broad general subject of the treatment of illegitimate children under Ohio law and more specifically whether the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution mandates that all illegitimate children are to be considered as 'children' under R.C. 2105.06, the Ohio statute of descent and distribution.

Many statutes such as wrongful death, workmen's compensation, and descent and distribution make reference to the words 'child' or 'children' but they do not contain words of explanation or limitation.

Historically, courts have held that the word 'child' or 'children' appearing in statutes without words of limitation or explanation are given their natural and normal meaning which means legitimate children only. Ohio courts have held that unless there is some language in the statute itself which shows a contrary intent on the part of the legislature, the word 'child' or 'children' means legitimate children. See Miller v. Industrial Commission (1956), 165 Ohio St. 584, 138 N.E.2d 672; Staker Guardian v. Industrial Commission (1933), 127 Ohio St. 13, 186 N.E. 616; Creisar v. State (1917), 97 Ohio St. 16, 119 N.E. 128; Bonewit v. Weber (1952), 95 Ohio App. 428, 120 N.E.2d 783.

Pertinent statutes dealing with the subject of illegitimate children under the Ohio statutory scheme are the bastardy, acknowledgment and adoption statutes and the statute of descent and distribution.

R.C. 3111.17 the bastardy statute, provides that if an accused confesses in court or if a jury finds him guilty he shall be adjudged the reputed father of the illegitimate child and the court will award reasonable support and maintenance of the child until he becomes 18 years of age.

R.C. 3107.13 provides for legal rights after adoption and this includes the legal rights of a child born illegitimate and who is subsequently adopted. For all purposes governing inheritance of and succession to real and personal property, a legally adopted child shall have the same status and rights and shall bear the same legal relationship to the adopting parents as if born to them in lawful wedlock, with a few minor exceptions not relevant to the issue in this case.

A child born illegitimate may also be legitimated through acknowledgment by his father under the provisions of R.C. 2105.18. If a man has children by a woman and subsequently marries her and acknowledges the child, the child will be legitimate. Further, a natural father of a child who files an application in probate court of the county where he resides acknowledging that the child is his, and upon consent of the mother and a finding by the probate court that the applicant is the natural father, and it is for the best interest of the child, the child shall be considered as if born in lawful wedlock.

Therefore, after an illegitimate child is adopted under R.C. 3107.13 or acknowledged under R.C. 2105.18, such child is considered as born in lawful wedlock and is no longer an illegitimate child, and is considered legitimate for practically all purposes. Adoption and acknowledgment under the foregoing statutes require affirmative legal action by the father and do not happen automatically by operation of law. Thus, a natural father can legitimate his illegitimate child by either adoption or acknowledgment under R.C. 3107.10 and R.C. 2105.18 respectively.

In Ohio a person has the option of disposing of his property on death by taking the affirmative action of making a will (Chapter 2107); or if he does not so act, the state presumes his intent and makes a will for him, which is called the statute of descent and distribution (R.C. 2105.06).

The statute of descent and distribution is a succession statute which sets forth the priorities of those persons taking property of a decedent when he does not make a will, and among those mentioned in this statute are 'children.'

R.C. 2105.17 states that a bastard ³ child can inherit from and through its mother as if born in lawful...