Kroff v. Amrhein Et Al.

Decision Date29 May 1916
Docket Number14997
Citation114 N.E. 267,94 Ohio St. 282
PartiesKroff v. Amrhein Et Al.
CourtOhio Supreme Court

Adopted children - Descent of property of foster parents - Parents survive adopted child - Who dies intestate, leaving married daughter - Latter devises property to husband - Foster Parents having died intestate - Sections 8029 and 8030 General Code.

1. The primary and paramount purpose of Section 8029, General Code is to make an adopted child the equal of a natural child "to all legal intents and purposes."

2. This same purpose is further evidenced and emphasized in Section 8030, General code, which invests such adopted child with "all the rights and privileges" of a child of the blood or a child begotten in lawful wedlock.

3. The only limitation put upon an adopted child is in the last sentence of Section 8030, General code, which provides in substance that if the death of the adopted child occur subsequently to the death of the adopting parents, and such adopted child he "without issue," then, and in that event, the line of heirship reverts back to the adopting parents.

In November, 1876, Simon and Otilley Fearsettle legally adopted Mattie Stein, afterwards known as Mattie Fearsettle.

Mattie Fearsettle married one Fred Hamley.

In February, 1912, Mattie (Fearsettle) Hamley died, intestate leaving Surviving her daughter, Hester Hamley; her husband Fred Hamley, and her foster parents, Simon and Otilley Fearsettle.

Thereafter Hester Hamley married Norman G. Amrhein, defendant in error.

In June, 1914, Otilley Fearsettle died, intestate, and in August, 1914, Simon Fearsettle died, in- testate, possessing fee simple title to the property in dispute.

In January, 1915, Hester Hamley Amrhein died, testate, devising all her property to her husband, Norman G. Amrhein, her only surviving heir at law.

Plaintiff in error, Frederick C. Kroff, is a half-brother of Simon Fearsettle.

Mr. Allen J. Seney, for plaintiff in error.

Mr. Amos L. Conn, for defendants in error.

WANAMAKER J.

A and B are husband and wife, but childless. Pursuant to the laws of Ohio they adopt one C as their daughter. C subsequently marries D and has issue in a daughter, E. E marries F. C's decease is prior to A's and B's. A and B die in 1914, intestate. In 1915 E dies testate, willing all her property, including real estate from A and B, to her husband, F. Does F thereby take any title to A's and B's lands? The lower courts decided in favor of F. To reverse that judgment error is prosecuted here.

The answer to this question must be found in our statutes of adoption and descent. Adoption of C is admittedly regular. What do the statutes declare to be the legal effect of such adoption?

Section 8029, General code, in part reads as follows: "When the foregoing provisions [statutory steps to adoption] are complied with, if the court is satisfied * * * it shall make an order setting forth the facts, and declaring that, from that date, to all legal intents and purposes, such child is the child of the petitioner, etc.

To layman and lawyer it should be perfectly plain that the legislative intent here expressed was to make such adopted child the equivalent of a natural child of the adopting parents, otherwise what could have been the purpose of such adoption and what the meaning of the words "such child is the child of the petitioner * * * to all legal intents and purposes."

Such simple, sweeping language would seem sufficient per se to invest the adopted child with all the rights and privileges of the natural child. Lest there be any doubt in the minds of the superstrict as to the legal sense and scope of this last clause of Section 8029, General code, the legislature further enacted to like effect Section 8030, General code, which reads in part: "Such child shall be 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."

It will be, noted that the statute provides that, (1)An adopted child "shall be the child and...

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