Tootle v. Tootle, 85-558

Decision Date19 March 1986
Docket NumberNo. 85-558,85-558
Citation490 N.E.2d 878,22 Ohio St.3d 244
Parties, 54 USLW 2547, 22 O.B.R. 420 TOOTLE et al. v. TOOTLE, Appellant; Abbott et al., Appellees.
CourtOhio Supreme Court

Syllabus by the Court

1. Where a testator uses the term "heirs of the body" as a term of limitation in a class gift to exclude adopted beneficiaries, such term in the absence of contrary intent constitutes an express exclusion of adopted persons under R.C. 3107.15.

2. The anti-lapse statute, R.C. 2107.52, may be avoided by sufficient expression of intent.

The relevant facts to this appeal have been stipulated.

Allen Evans died testate and his will was submitted to probate in the Probate Court of Pickaway County on November 8, 1926. "Item Fourth" of the will stated in pertinent part as follows:

"I give, devise and bequeath to my daughter, Verna Tootle, and her husband, Merton Tootle, and to the survivor of them for and during their natural lives, or either of them, and then to the heirs of their bodies, 177 acres of land, including the School House Lot, situated in Deerfield Township, Ross County, Ohio * * *." (Emphasis added.)

On May 11, 1967, the aforesaid real estate was sold and the proceeds placed into a trust. The trustees were Allen Tootle and Roxanna Tootle Abbott, the two natural children of Verna and Merton Tootle. Subsequently Roxanna Tootle died on June 28, 1975 and Allen Tootle was left as sole trustee. Roxanna Tootle Abbott is survived by her spouse and two adopted children, Thomas Abbott and Megan Abbott Knisley. Merton Tootle died on February 26, 1972 and Verna Evans Tootle died on January 6, 1983.

In May 1983 Thomas Abbott, later joined by Megan Abbott Knisley, filed a motion to terminate the trust. The motion requested dissolution and distribution of the trust, one-half to Allen Tootle and one-fourth each to Thomas Abbott and Megan Abbott Knisley. The trial court held, however, that the entire trust proceeds were to be distributed to Allen Tootle because both Thomas and Megan were adopted and therefore not "heirs of the body" of Verna and Merton as specified by the will.

On appeal to the court of appeals, the trial court's decision was reversed and it was held that the two adopted grandchildren must be treated "as if they were legitimate blood descendants of Roxanna for all purposes, including the construction of Allen Evans' will which was executed before the adoption was decreed."

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Vorys, Sater, Seymour & Pease, Lawrence L. Fisher, Clark E. Loofbourrow and Nancy E. Herrold, Columbus, for appellant.

Huffer & Huffer Co., L.P.A., and Robert H. Huffer, Circleville, for appellee Abbott.

R.L. Brubaker, Columbus, for appellee Knisley.

LOCHER, Justice.

The issue at bar is whether Thomas Abbott and Megan Abbott Knisley, although adopted, may inherit through or from their mother in a class gift. For the reasons to follow we hold that the adopted children may not inherit where the express intention of the testator is otherwise and, accordingly, we reverse the judgment of the court of appeals.

Ordinarily R.C. 3107.15(A)(2) places adopted children on the same footing as natural children:

"To create the relationship of parent and children * * * as if the adopted person were a legitimate blood descendant of the petitioner, for all purposes including inheritance and applicability of statutes, documents, and instruments, whether executed before or after the adoption is decreed, which do not expressly exclude an adopted person from their operation or effect." (Emphasis added.)

As the last portion of the section indicates, however, the status of adopted children is not unequivocal in those instances where exclusion is express.

While conceding that in 1925, when the will was executed, the term "heirs of the body" was commonly used to exclude adopted children, the court of appeals was singularly reluctant to accept the trial court's conclusions. Rather, the court of appeals analogized from Tiedtke v. Tiedtke (1952), 157 Ohio St. 554, 106 N.E.2d 637 , wherein this court held in paragraph two of the syllabus:

"Where, in providing for his 'heirs at law' after a life interest, a testator indicates his intention that such heirs should be determined at the date of the expiration of such life interest, then the statutory law in effect at the expiration of such life interest should be applied in determining such heirs of the testator unless by the provisions of the will or surrounding circumstances a contrary intention is indicated, even though such statutory law will permit an adopted child of the testator's daughter to take and the statutory law in effect at the testator's death would not have permitted such adopted child to take and even though such adopted child was not either born or adopted until long after the testator's death."

The court of appeals reasoned that "heirs" or "heirs at law" are indistinguishable from "heirs of the body." This reasoning was applied notwithstanding G.C. 8030, in effect when the will was executed (109 Ohio Laws 179, 180), which expressly indicated that an adopted child " * * *shall not be capable of inheriting property expressly limited to the heirs of the body of the adopting parent or parents." (Emphasis added.) We decline to adopt the court of appeals' view.

In Alley v. Strickland (1983), 279 S.C. 126, 302 S.E.2d 866, the Supreme Court of South Carolina, under a statute wherein "an adopted child" is "considered a natural child of the adopting parents for all inheritance purposes * * *," id. at 127, 302 S.E.2d 866, held that a distinction had to be made between such terms as "heirs," predicated upon the statutes of descent and distribution, and "heirs of the body," a term of art used to limit remainders. Similarly, it has been held that the term "heirs of the body" is an expression that " * * * has a biological overtone which excludes a wife or husband and also adopted children." In re Trust Estate of Kanoa (1964), 47 Hawaii 610, 620, 393 P.2d 753, 759; Casner, Construction of Gifts to "Heirs" and the Like (1939), 53 Harv.L.Rev. 207, 222-223. There is a distinct difference between the term "heirs of the body" and the term "heirs at law" as used in Tiedtke. Moreover, both Tiedtke and the present R.C. 3107.15(A)(2) recognize the supremacy of the testator's intent over the judicial and legislative policy that adopted children be treated the same as natural children.

In our view there is no ambiguity in the will of Allen Evans as to the meaning of "heirs of the body." Unlike the court of appeals we cannot eschew the issue by suggesting that the meaning of technical terms of limitation in 1925, such as "heirs of the body," would change at some future period of time without specific legislative directive. Moreover, the term "heirs of the body" is not used interchangeably with "heirs," used in the residuary clause in Item Eighth of the will, 1 or "children," used in Item Second or Item Seventh of the will. 2 Additionally, the term "heirs of the body" was explicitly defined by G.C. 8030, as noted supra. The particular context of the term "heirs of their bodies" prefaced by the words "and then to" is also of value in ascertaining its use as a term of limitation. In the absence of contrary evidence, the use of the term "heirs of the body" in anything other than its former statutorily defined meaning is without legal justification. 3

While we are mindful of, and sympathetic to, the legislative concern that adopted individuals be treated in most instances as if they were legitimate blood descendants, we are compelled to give effect to the testator's express intent. In Townsend's Exrs. v. Townsend (1874), 25 Ohio St. 477, this court stated in paragraph one of the syllabus:

"In the construction of a will, the sole purpose of the court should be to ascertain and carry out the intention of the testator."

This court reaffirmed the primacy of testator's intent in Sandy v. Mouhot (1982), 1 Ohio St.3d 143, 144, 438 N.E.2d 117:

"The court's sole purpose in an action seeking construction of a will is to ascertain and carry out the intention of the testator. See, also, Wills v. Union Savings & Trust (1982), 69 Ohio St.2d 382, 385 ."

It is hornbook law, however, that technical terms in a will must be given their technical meaning and the testator will be presumed, absent differing intent, to be cognizant of that existing legal meaning. Rehm v. Core (App.1948), 54 Ohio Laws Abs. 535, 82 N.E.2d 864; Holt v. Miller (1938), 133 Ohio St. 418, 420, 14 N.E.2d 409 . The term "heirs of the body" (or their bodies), under the circumstances of this case, is a term of limitation with respect to a class and in our view represents the kind of express exclusion recognized by R.C. 3107.15(A)(2).

Having accepted that "heirs of the body" is a term of limitation, 4 we must next determine when the class of contingent remaindermen closed. This is important because the contingent remainders in a life estate cannot become vested until the class is closed, i.e., with the death of the final life tenant. Casey v. Gallagher (1967), 11 Ohio St.2d 42, 227 N.E.2d 801 . The final life tenant, Verna Tootle, died in January 1983. Roxanna Tootle Abbott, however, had predeceased Verna before any interest could vest in her or her adopted children. Consequently, only Allen Tootle had a vested remainder after the class closed by virtue of Allen Evans' explicit instruction that the remainder interest go to the heirs of the bodies of his children. Further, even if we were to assume, arguendo, that Thomas and Megan succeeded to their mother's position by virtue of R.C. 2107.52, the anti-lapse statute, they still would not take because the statute may be avoided by sufficient expression of intent. Shalkhauser v. Beach (P.C.1968), 14 Ohio Misc. 1, 233 N.E.2d 527 ; Bensing, The Ohio Anti-Lapse Statute (1959), 28 U.Cin.L.Rev. 1, 29. Such...

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