Opinion
No. 19194
Decided April 20, 1926.
Wills — Revocation by child adopted after will executed — Section 10561, General Code, applies — Rights same as child begotten in lawful wedlock — Sections 8029 and 8030, General Code.
Under the provisions of Sections 8029 and 8030, General Code, an adopted child is entitled to the same rights as a child begotten in lawful wedlock, including the right of the latter to have a will revoked under the provisions of Section 10561, General Code.
ERROR to the Court of Appeals of Cuyahoga county.
One Elizabeth Surman executed her will on January 1, 1912, naming her husband, Frank E. Surman, her sole legatee and devisee. On September 7, 1916, the Surmans, husband and wife, legally adopted the defendant in error, Frank H. Surman. No children were born of Elizabeth Surman, who died on March 28, 1923, leaving her husband and adopted child surviving. No provision was made in the will, or by settlement, for the adopted child. On April 23, 1923, the will was admitted to probate. The adopted son brought an action asking that said will be set aside, for the reason that the will was revoked by reason of the adoption.
In the trial court, the plaintiff, adopted son, secured a judgment in his favor, voiding the will. That judgment was affirmed, whereupon error was prosecuted to this court by the husband, Frank E. Surman.
Mr. L.Z. Tanney and Mr. Joseph Lustig, for plaintiff in error.
Messrs. Bartholomew, Leeper McGill, for defendant in error.
But one question is presented under the facts detailed. Did the adoption of the child revoke a will made prior to its adoption? Section 10561, General Code, provides:
"If the testator had no children at the time of executing his will, but afterward has a child living, or born alive after his death, such will shall be revoked, unless provision has been made for such child by some settlement, or he is provided for in the will, or in such way mentioned therein as to show an intention not to make such provision."
No provision was made for the adopted child in the will or by settlement, nor was his name mentioned in the will. Do the words, "afterward has a child living," comprehend an adopted child living after testator's death? If yes, the judgments below should be affirmed; if no, they should be reversed.
An apparent conflict of authority is claimed to exist in various adjudicated cases, but the conflict is more fanciful than real; the decisions depending upon the existing statutes of the various jurisdictions, relating to the subject. In Ohio we have a comprehensive series of statutes, relating to adoption, and fixing the status of the adopted child. Section 8029, General Code (Section 3139, Revised Statutes), provides that, after the provisions of the adopting statute are complied with, the probate court shall make an order "declaring that, from that date, to all legal intents and purposes, such child is the child of the petitioner." The following section (Section 8030, General Code, Section 3140, Revised Statutes]), provides:
"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."
These sections of the Code not only disclose a legislative purpose of conferring upon a legally adopted child the inheritable rights of one born in wedlock, but explicitly declare that the former shall be "entitled to all the rights and privileges * * * of a child of such person begotten in lawful wedlock." One of the rights granted to a child born in lawful wedlock is the lawful right to have the will revoked under the terms of Section 10561, General Code. This comports, in principle, with our decision in Cochrel v. Robinson, 113 Ohio St. 526, 149 N.E. 871, wherein a designated heir was given the same inheritable property rights as a child born in lawful wedlock.
The judgments of the lower courts are affirmed.
Judgment affirmed.
MARSHALL, C.J., MATTHIAS, DAY, KINKADE and ROBINSON, JJ., concur.