Hoellinger v. Molzhon

• Decision Date: 03 February 1950
• Docket Number: No. 7149,7149
• Citation: Hoellinger v. Molzhon, 77 N.D. 108, 41 N.W.2d 217, 19 A.L.R.2d 1147 (N.D. 1950)
• Parties: , 19 A.L.R.2d 1147 HOELLINGER v. MOLZHON et al.
• Court: North Dakota Supreme Court

Page 217

41 N.W.2d 217

77 N.D. 108, 19 A.L.R.2d 1147

HOELLINGER v. MOLZHON et al.

No. 7149.

Supreme Court of North Dakota.

Feb. 3, 1950.

Syllabus by the Court.

1. In the construction of a statute the intent of the legislature controls and to find that intent the language used, the purpose of the statute and other related laws and circumstances may be given consideration.

2. Under Section 14-1113, NDRC 1943, adopted children are placed in the same position as far as possible as children born in lawful wedlock, including the right of inheritance from the adopting parents and are placed by the law in the line of descent to all intents and purposes the same as children born in lawful wedlock are placed there by birth.

3. Adopted children come within the meaning of the term 'lineal descendants' as used in Sec. 56-0420, NDRC 1943, and as such may take a legacy given by will to one of the adopting parents and thus prevent the legacy from lapsing when the legatee dies before the testatrix.

4. In construing a will, testator's intention must be given effect as far as possible. Crabtree v. Kelly, 65 N.D. 501, 200 N.W. 262.

5. The word 'devise' in its present technical sense generally denotes the testamentary disposition of real property while the word 'bequeath' denotes the disposition of personal property, but they are often used interchangeably.

Paul Campbell, Minot, Attorney for Appellant.

R. E. Swendseid, Stanley, Attorney for Appellees.

GRIMSON, Judge.

On August 23, 1937, Rose Katherine Hoellinger executed her Last Will and Testament. She died October 11, 1946. After a hearing upon citation to the heirs, devisees and legatees the will was admitted to probate. The estate was duly administered and the final decree of distribution was issued.

The Will, after directing the payment of debts, gave to Mrs. Hoellinger's adopted daughter, Blanche Margaret Hoellinger, otherwise known as Rose Marie Hoellinger, this appellant, one-half of all her estate. It then provided: 'I give and bequeath to my brothers and sisters, namely, John, Ike, Albert and Anthony Molzhon and Mrs. James O'Omeara, Mrs. Agnes Payson and Mrs. James Walsh the remaining one-half of all property of which I die seized real, personal and mixed and wheresoever situated,' subject to a bequest of $500 per year for four years to her grand-daughter, Esther Rose Knutson, for educational purposes.

The evidence shows that the brother of the testatrix, John Molzhon and his sister, Mrs. James Walsh, died after the making of the will but before the death of the testatrix. They left no children of their own but John had adopted a son, Ronald Molzhon, and Mrs. Walsh had adopted a son, John James Walsh.

By the final decree one-half of the estate was awarded to Rose Marie Hoellinger, the appellant. Out of the remaining one-half the $2000 bequest to Esther Knutson, grant-daughter, was paid. The balance was distributed, one-eighth each to the six brothers and sisters living and to Ronald Molzhon and John James Walsh, as the lineal descendants of John Molzhon and Mrs. James Walsh, the brother and sister of the testatrix who were mentioned in the will but had predeceased the testatrix.

From that decree an appeal was taken to the District Court on questions of law alone, Sec. 30-2608, NDRC 1943, and restricted to 'the payment and distribution to and awarding to respondents, Josephine O'Omeara, Ronald Molzhon and John James Walsh and to each of them a one-eighth share of the estate in the sum and amount of $4365.75.' The district court affirmed the final decree as made by the county court. An appeal is taken to this court from 'that part and portion of said judgment wherein and insofar as the same affirms said decree, adjudging and decreeing that the above named appellees, Ronald Molzhon and John James Walsh are entitled to share in said estate and assigning to and vesting in said Ronald Molzhon and John James Walsh any part or portion of said estate and directs and orders that John W. Hogan, Executor, pay and deliver to them or either of them any part or portion of said estate.'

On this appeal the objection to the distribution to Josephine O'Omeara of her one-eighth share is abandoned. Only the distribution to Ronald Molzhon and John James Walsh of the one-eighth share each that would have gone to their adopting parents under the will had they lived is now attacked. The grounds alleged are that Ronald Molzhon and John James Walsh, as adopted children, are not lineal descendants of their adopting parents and, therefore, do not come under the non-lapse statute so as to be entitled to any portion of the estate of Rose Katherine Hoellinger. In support thereof defendants cite Sec. 56-0527, NDRC 1943 which provides that if a devisee or legatee predeceases the testatrix testamentary disposition as to him fails unless otherwise provided in the will and Sec. 56-0420, NDRC 1943 which provides that if in such case the devisee predeceases the testatrix but leaves lineal descendants, such descendants take in the same manner as the devisee would have.

The decision in this case involves the construction of the latter statute. Specifically the question is whether the term, 'lineal descendant' includes adopted children.

The construction of a statute involves first a determination of what was the intention of the legislature in the enactment of the law. Such intent is controlling and must be given effect to the fullest degree. 59 C.J. 948.

In determining such intent the meaning of the words used and the language of the statute as a whole must be considered. Other aids in construction of the subject matter are the purpose of the statute, the reason for its enactment, the evils at which the legislation is aimed, the historical background, the construction of similar statutes by other courts, and the consideration of other statutes on related subjects. In this case, that involves a study of not only the non-lapse statute but also the adoption laws and the statute concerning the interpretation of wills. See 50 Am.Jur. 271; 59 C.J. 948.

The first statute here to be considered is Sec. 56-0420, commonly known as the nonlapse statute, reading as follows: 'When any estate is devised to any child or other relative of the testator, and the devisee dies before the testator leaving lineal descendants, such descendants take the estates so given by the will in the same manner as the devisee would have done had he survived the testator.'

The right of inheritance is purely a matter of statutory regulation. The purpose of this statute was to alleviate the hardships caused by the virtual disinheritance of children when a testamentary disposition failed. 'The statute was passed to remedy such disappointments, and should receive a liberal construction so as to advance the remedy and suppress the mischief.' Gale v. Keyes, 45 Ohio App. 61, 186 N.E. 755. It has been held that this non-lapse statute should be interpreted to avoid intestacy. Beardsley v. Johnson, 105 Conn. 98, 134 A. 530.

Webster's New International Dictionary, Second Edition, page 1436 gives a definition of 'lineal' as 'Descended in a direct line; in the line of succession through lineage.' That seems to be the general and ordinary meaning of the term as used in the statute.

In 26 C.J.S., page 984 it is said that the word descendant 'carries the concept of offspring in the line of generation, but, in a particular connection and as the result of legislation, it has been held that the word is not limited to blood relationship.' See also In re Walter's Estate, 270 N.Y. 201, 200 N.E. 786. According to these definitions a lineal descendant may be anyone in the line of descent whether by blood or by law.

Appellant has referred to In re Lamb's Estate, 72 N.D. 42, 4 N.W.2d 585, where this court held that the ordinary meaning of the noun, 'descendant' is 'lineal issue'--a child of the body. That case involved merely whether grand-children were lineal descendants. The only question was whether such blood relationship brought the grand-children within the term 'lineal descendants' so as to give them the benefit of the exemptions in the inheritance tax laws. The ordinary meaning of the noun 'descendant' was correctly held to apply. The legislature, however, has said, the 'words used in any statute are to be understood in their ordinary sense, unless a contrary intention plainly appears.' Sec. 1-0202, NDRC1943. In the instant case circumstances indicating a contrary intention do appear. The adoption creates the same rights of heirship in the adopted child as in the child of the body. The ordinary meaning of 'lineal descendant' therefore, does not apply here.

In this connection our adoption law must be considered. There were no adoptions at common law. The procedure for adoption is entirely statutory and the relationship created by adoption depends upon the statutory construction. The adoption statutes were for the beneficent purpose of creating an artificial relationship of parent and child in certain cases and creating the right of inheritance in such cases. During the course of our statehood the relationship created by the law of adoptions has been developed as closely as possible into the natural family relationship.

Originally, Sec. 2629, Compiled Laws of Dakota 1887, read as follows: 'A child, when adopted, may take the family name of the person adopting. After adoption, the two shall sustain towards each other the legal relation of parent and child, and have all the rights and be subject to all the duties of that relation.'

In 1891 this section was changed to read as follows: 'A child so adopted as aforesaid shall be deemed as respects all legal consequences and incidents of the natural relation of parent and child, the child of such parent or parents by adoption, the same as if he had been born to them in lawful wedlock; except that such adoption shall not itself constitute such child the heir of such parent or parents by...