Weitzel v. Weitzel

• Decision Date: 22 July 1968
• Docket Number: No. 711621,711621
• Citation: 16 Ohio Misc. 105,239 N.E.2d 263
• Parties: , 45 O.O.2d 55, 45 O.O.2d 83 Harry G. WEITZEL, Administrator W. W. A. of the Estate of Lydia Weitzel, o.w. Lizzie Matilda Weitzel, Deceased, Plaintiff, v. Harry G. WEITZEL et al., Defendants.
• Court: Ohio Court of Common Pleas

Page 105

16 Ohio Misc. 105

239 N.E.2d 263, 45 O.O.2d 55, 45 O.O.2d 83

Harry G. WEITZEL, Administrator W. W. A. of the Estate of Lydia Weitzel, o.w. Lizzie Matilda Weitzel, Deceased, Plaintiff, v. Harry G. WEITZEL et al., Defendants.

No. 711621.

Probate Court of Cuyahoga County, Ohio.

July 22, 1968.

[239 N.E.2d 264] Harry C. Antel, Walter S. Musiel, Jr., Cleveland, for plaintiff.

Robert O. Fricke, Cleveland, guardian ad litem for Kenneth E. Weitzel, Mary Lydia Weitzel and Barbara Weitzel, minors.

Joel M. Garver, Cleveland, guardian ad litem for Kenneth Weitzel, minor.

OPINION RE DECISION OF REFEREE

ROBERT A. DECATUR, Referee.

The petition of Harry G. Weitzel, Administrator With Will Annexed of the Estate of Lydia Weitzel, deceased, concerns the construction of Item 111 of the Last Will and Testament of Lydia Weitzel which provides:

Item 111: In the event my husband predeceases me or in the event of a common disaster in which both my husband and I may die, regardless of which one predeceases the other, I give devise and bequeath all my property both real and personal, to my then living children and grandchildren, share and share alike.

Lydia Weitzel executed this Will on April 21, 1957. She Harry G. Weitzel has two natural children, grandchildren of the deceased.

died June 13, 1967, survived by her two sons Harry G. Weitzel and Kenneth E. Weitzel; her husband having predeceased her.

Kenneth E. Weitzel has no natural children, however, Kenneth E. Weitzel did adopt two children, Mary Lydia Weitzel, born January 25, 1961 and Barbara Weitzel, born April 25, 1963. The adoptions presumably occurred during the life of the deceased, after the execution of the Will, however, the exact dates have not been specified.

The issue thus raised is whether the two legally adopted children of Kenneth E. Weitzel can be included in a class gift to 'children and grandchildren' made by the Will of one not a party to the adoption and executed prior to the adoption.

I

'Adoption is of relatively recent origin in American Law, having been introduced in the various states beginning in the middle of the nineteenth century.' Halbach, The Rights of Adopted Children Under Class Gifts, 50 Iowa L.Rev. 971, 972 & N.5. (1965). The common law has no history of adoption through the ancient Romans and other early civilizations did recognize and accept the concept.

Historically, American Courts gave adopted children very little consideration in cases involving inheritance or rights to shares in class gifts under private instruments. A commentator has attributed this attitude to 'the pre-existing tendency to favor blood relatives in succession matters, including construction of wills, * * * accompanied by a common failure of adoption acts to deal adequately with the effects of adoption.' Halbach, Rights of Adopted Children Under Class Gifts, Supra at 973.

Summarizing the legal effect of this attitude it could be said the absence of clear statutory mandate, the early decisions refused to confer any rights of a natural child upon an adopted child.

As time passed adoptions became more and more common in the United States, involved legal procedures were Just as the social acceptance of adoption and the adopted child grew, the legal effect of adoption upon the adopting parents, the natural parents and the adopted child, was considered and reconsidered; statutes were passed and repealed; amended and reworded; and it cannot be said that the process has yet ended.

devised to protect the minor who was to be adopted and to assure the state that the child would receive proper treatment, training, and care. The public began to accept adoption as a normal practice, and today, in the mind of the average man, an adopted child and a natural child are classed as equals, both are considered to be members of their parents' families.

The only judgment possible when considering the current state of the legal rights involved is that an obsious, general trend of liberalization is apparent in all jurisdictions to the end that an adopted child will be treated as the natural child of the adopting parents and the family of those parents, and will cease, in every respect to be the child of its natural parents.

Ohio's statutory history is in complete accord with this general trend. The earliest enactment found by this writer provided that an adopted child

shall be, to all intents and purposes, the child and legal heir of his or her adopter or adopters, entitled to all the rights and privileges and subject to all the obligations of a child of the adopter or adopters begotten in lawful wedlock. 56 Ohio Laws 83 (1859).

Re-enacted without substantial change as Ohio Rev.Stat. § 3140, 88 Ohio Laws 556 (1891), the provision was interpreted so as to limit the adopted child's rights of in heritance to the property possessed only by its adopting parents. Theobald v. Fugman, 64 Ohio St. 473, 60 N.E. 606; Phillips v. McConica, 59 Ohio St. 1, 51 N.E. 445. Of course, the adopted child could still inherit from its natural parents, and their ancestors.

As amended in 1910 the statute read:

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 Again amended in 1921 the statute now provided:

such person begotten in lawful wedlock. Ohio Gen. Code § 8030 (1910).

(T)he child shall be invested with every legal right, privilege, obligation and relation in respect to education, maintenance and the rights of inheritance to real estate, or to the distribution of personal estate on the death of such adopting parent or parents as if born to them in lawful wedlock; provided, such child shall not be capable to inheriting property expressly limited to the heirs of the body of the adopting parent or parents * * *. Ohio Gen.Code § 8030 (1921).

In 1932 as part of a general revision of the probate portion of the code the following was added:

but (such child) shall be capable of inheriting property expressly limited by will or by operation of law to the child or children, heir or heirs at law, or next of kin, of the adopting parent or parents, or to a class including any of the foregoing. Ohio Gen.Code § 10512-19, 114 Ohio Laws 474 (1932). (Emphasis added).

Except to the extent that provision was made for an adopted child to inherit through its adopting parent and in consequence thereof the complete termination of any right to inherit from its natural parents and ancestors, the statute was re-enacted as Ohio Gen.Code § 10512-23, 120 Ohio Laws 440 (1943).

In 1951 the present Revised Code § 3107.13 was enacted as Ohio Gen.Code § 8004-13, 124 Ohio Laws 193 (1951), and provides as follows:

For all purposes under the laws of this state, including without limitation all laws and wills governing inheritance of and succession to real or personal property and the taxation of such inheritance and succession, 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 and not born to the natural parents * * *. (Emphasis added).

From even a cursory reading of the statutory history set forth above, it is apparent that the Ohio Legislature has consistently sought to modify, liberalize, and increase the inheritance rights of adopted children so as to equate them The 1932 amendment, though intended to assure that adopted children could take through their adopting parents, incidentally, expressly indicated that the statute's provisions were applicable to class gifts in private instruments. Therefore, a reasonable interpretation of that amendment would lead one to assume that a gift to the children of 'A' included within its terms, any adopted children of 'A' no matter who the donor happened to be.

to the changing attitudes and expectations of the public.

The 1951 amendment to the statute eliminated any specific reference to class gifts to children; however, the statute was even more clearly applicable to private instruments. The statute vaoided the prior language by which the legislature invested an adopted child with rights of a natural child, and in its place granted the adopted child the same legal status as a natural child.

Considering the history of this statute and the clear policy presented thereby, it cannot be assumed that the legislature intended to limit the rights of adopted children by its most recent amendment; to the contrary, it must be concluded that the legislature intended to further expand the inheritance rights of an adopted child, to treat that child as a natural child of the adopting parents.

Though the current statute, Ohio Rev. Code § 3101.13, can be interpreted to apply to class gifts in private instruments, see Halbach, The Rights of Adopted Children Under Class Gifts, 50 Iowa L.Rev. 971, 975, nn. 22, 96, 99 (1965), so as to include adopted children thereunder; the Ohio Courts, pursuing their historical reluctance to vary or affect property rights even in the face of strong social attitudes directly in opposition to their decisions have refused to fully accept this construction insisting that the question of whether adopted children take as members of a class under a private instrument must be determined by reference to that instrument and the intent of the testator, noting that the adoption statutes are helpful only in the sense that they are an expression of social attitude and legislative policy see 2 Am.Jur.2d adoption §§ 92, 95.

The general rule of construction relating to class gifts, in the instant situation provides that a testator is presumed to have intended to include in a testamentary gift to a class, a child adopted by him in the absence of any indication to the contrary in the instrument. The presumation is reversed, however, when the testator is a so-called 'stranger-to-the-adoption,' in that case it is presumed that an adopted...