Surman, Admr. v. Surman

153 N.E. 873 | Ohio Ct. App. | 1925

The defendant in error, Frank H. Surman, who was plaintiff below, brought an action in the court of common pleas of this county to contest the will of one Elizabeth Surman. Trial was had before a judge and jury and by direction of the court the jury brought in a verdict for the plaintiff, finding that the paper writing purporting to be the last will and testament of said Elizabeth Surman was not her last will and testament. Judgment was rendered on the verdict accordingly, and upon the overruling of the motion for a new trial error was prosecuted to this court by plaintiff in error.

The facts disclosed by the record are that Elizabeth Surman executed her last will and testament on January 1, 1912, and that on September 7, 1916, she and plaintiff in error Frank E. Surman, then husband and wife, adopted a minor, Frank H. Surman, defendant in error, as their son; that on March 28, 1923, Elizabeth Surman died; and that on April 23, 1923, said will was admitted to probate. Frank E. Surman, the husband, was named as the sole legatee and devisee in said will and was, by the probate court of this county, appointed administrator.

The facts in this case are agreed upon by the parties herein. It is contended by plaintiff in error that Frank H. Surman, defendant in error, being an adopted child, is not entitled to any part of the estate of said Elizabeth Surman, for the reason that he does not stand in the same relation as a child of natural parents. Counsel on both sides have cited many authorities on the subject, including those from other states. Upon investigation, however, we are of the opinion that the law is well settled in Ohio; the sections of the statutes bearing upon the question at issue and cited by counsel having been discussed and interpreted by our courts.

Under the adopting statute (Section 8029, General Code) we find this language: "And declaring that, from that date, to all legal intents and purposes, such child is the child of the petitioner."

In the following Section (Section 8030, General Code), bearing upon the same subject, this language is used: "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."

As to the construction to be placed upon these sections, we cite Ransom, Adm'r., v. New York, Chicago St. Louis Ry. Co.,93 Ohio St. 223, 112 N.E. 586, L.R.A., 1916E., 704; also the case of Kroff v. Amrhein, 94 Ohio St. 282, 114 N.E. 267. The first and second paragraphs of the syllabus in the latter case read as follows:

"(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."

The case last above cited affirmed the judgment of the Court of Appeals of the Sixth District, 5 Ohio App. 37, wherein, at page 42, the Court of Appeals, quoting the language of the trial court, says: "It cannot be denied that if the adopting parents had, at the time of the adoption, natural children who survived them, or had children born to them after the adoption who survived them, that the adopted child would be co-heir with such natural children, with like and equal power of inheritance from her adopting parents, for the reason that the jus representationes attaches as fully, under our statute of adoption, to the adopted child as to the natural children."

We are of the opinion that under the holding of the courts the term "adopted child," unless otherwise indicated, has the same meaning as the term "natural child." In the instant case the testatrix having no children at the time of executing the will, but afterwards having a child living, namely, the adopted child, Frank H. Surman, the case comes clearly within Section 10561, General Code, which provides:

"If the testator had no children at the time of executing his will, but afterwards has a child living, or born alive after his death, such will shall be revoked."

See, also, Section 10563, General Code.

We therefore find that the judgment of the court below should be, and it hereby is, affirmed.

Judgment affirmed.

RICHARDS and WILLIAMS, JJ., concur.

Judges of the Sixth Appellate District sitting in place of Judges LEVINE, SULLIVAN and VICKERY, of the Eighth Appellate District.