Barrett v. Delmore (143 Ohio St. 203, 1944)

Matthias, J.

The single question of law presented in this case is whether a person adopted pursuant to' and in accordance with the law of a state other than; Ohio, which, at the time of the adoption, was the domicile of the adopting parent, is an “adopted child”’ within the purview of the provisions of Section 10504-5, General Code, even though such person had attained his majority at the time of his adoption. The pertinent provisions of Section 10504-5, General Code, are a& follows:

“If a testator dies leaving issue of his body, or an, adopted child, living, or the lineal descendants of either, and the will of such testator gives, devises or bequeaths the estate of such testator, or any part thereof, to a benevolent, religious, educational or charitable, purpose # * * such will as to such gift, devise or bequest, shall be invalid unless it was executed according to law, at least one year prior to the death of the testator.”

It is the contention of the appellant that not only the legality of the adoption, but, also, the rights and obligations resulting from the establishment of the relationship of adopting parent and adopted child, are governed and controlled by the law of their domicile under and pursuant to which the adoption was consummated-The appellant especially urges that, as a result of the adoption proceeding in the state of New York, which was concededly legal and regular, in all respects, his status as the adopted child of William P. Wentz became fixed and established, and that he is still the legally adopted child of William P. Wentz with all the rights of inheritance of a child born in lawful wedlock, although the adopting parent thereafter removed to this state, where he continued to live and where his estate is being administered.

The appellee Masonic Home, while not questioning the legality of the adopting proceedings, contends that the phrase “adopted child” as used in Section 10504-5, General Code, relates only to such person as is eligible for adoption under the laws of this state, and hence that the appellant is precluded from the benefits of such statutory provision. This claim of such appellee' is based upon the theory that the declared policy of this state with reference to adoption is, in the particular under consideration here, inconsistent with the laws of New York, in that the laws of that state authorize and provide for the adoption of adults as well as minors, while under the law of this state only minors are eligible for adoption. Appellee Masonic Home therefore urge's that to make the provisions of Section 10504-5, General Code, applicable to the situation presented in this case would require that the term ‘ ‘ adopted child” be so extended by construction as to include an “adopted adult.”

The contention of such appellee was sustained by the Court of Appeals, as indicated in the opinion wherein it held that “inasmuch as the laws of Ohio do not permit the adoption of adults, and the word ‘child’ as used throughout the adoption statutes means minor child, that the words ‘adopted child’ as used in Section 10504-5, General Code, being in pari materia with 10512-9 to 21, General Code, means an adopted minor child.”

We find great difficulty in following this reasoning, for it would lead to the conclusion that a person, though adopted when a minor, pursuant to the provisions of Section 10512-9, General Code (118 Ohio Laws, 626), but who had reached his majority prior to the death of the adopting parent, would not be entitled to the benefit of these statutory provisions.

Section 10512-19, General Code (114 Ohio Laws, 474), defined the respective rights, duties and obligations of the adopting parents and adopted child. When that section provided that “the [adopted] child shall1 be invested with every legal right, privilege, obligation and relation with 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,” it did not limit the benefits therein enumerated to the period of the minority of an adopted child. The term “adopted child” characterizes the status of the person adopted and defines his relationship to the adopting parent. Throughout our statutes of descent and-distribution the words “child” and “children” are used to designate relationship and have no reference whatever to age. The term “adopted child” means a child by adoption.

Under the law of the state of New York, as in effect at the time of the adoption of Louis C. Wentz, adoption was defined as “the legal act whereby an adult person takes another adult person or a minor into the relation of child and thereby acquires the rights and incurs the responsibilities of parent in respect to such adult or minor.” (Italics ours.)

It is clear, therefore, that under the law of New York the appellant was an “adopted child.”

The principle involved is stated in 2 Corpus Juris Secundum, 459, Section 66, as follows:

“According to some authority, and probably the better rule, foreign adoption statutes have no extraterritorial effect, and the right of inheritance of the adopted child is governed by the law of the state in which the succession takes place and not by the statute under which he was adopted, the effect of the doctrine of comity being to regard children of foreign adoption, whose rights are to be adjudicated in the forum, in the same light as though they had been duly adopted under the laws