Tootle v. Tootle

Wright, J.

concurring. The majority finds, and I agree, that Allen Evans’ will reveals a general intention to benefit his natural children for their lives, and to further devise his property in his bloodline.

The court’s function in a will construction case is to determine and apply the testator’s intention as expressed from the language of the whole will, the general scheme of the disposition, and the circumstances surrounding its execution. One such circumstance is the original statutory *249setting. Under G.C. 8030, which was effective at the time of the execution of Allen Evans’ will and at the time of his death, an adopted child was incapable of inheriting property expressly limited to the “heirs of the body” of the adopting parent or parents. Because Allen Evans’ will employs the term suggested by statute, “heirs of their bodies,” the logical and probable conclusion is that he intended to use the term in its traditional, common meaning to insure that his property passed to his natural descendants.5

The traditional meaning of “issue” and “heirs of the body” was lineal descendants by blood. Casey v. Gallagher (1967), 11 Ohio St. 2d 42 [40 O.O.2d 55]; Third National Bank & Trust Co. v. Davidson (1952), 157 Ohio St. 355 [47 O.O. 257]. Although the meaning of “issue” has been expanded to include adopted children, Flynn v. Bredbeck (1946), 147 Ohio St. 49 [33 O.O. 243], this trend has never affected “heirs of the body,” which still means lineal descendants by blood. Therefore, the will herein, bequeathing a life estate in property to children and, on their death, to heirs of their bodies, manifested the testator’s intention to limit the estate to the lineal blood descendants of such children. This construction excludes adopted children of the testator’s granddaughter from taking her deceased parent’s share.

*250Neither Roxanna Tootle, nor anyone claiming through her, can now claim an interest in the trust corpus. When the testator died, the re-maindermen acquired only a contingent interest in the realty. This interest could not vest until the life tenants, Verna and Merton Tootle, died because only at that time could their “heirs” be determined. Because Rox-anna predeceased her mother, Verna, her contingent remainder never vested. Further, Roxanna left no lineal descendants who could claim directly as heirs of the body of Verna Tootle.

I agree with the majority that Ohio’s anti-lapse statute, R.C. 2107.52, is inapplicable to the instant case, but for a different reason. R.C. 2107.52 preserves a gift in favor of heirs or descendants of persons who fall within the class description, and are alive at the date of the execution of the will, but predecease the testator. This statute does not operate where the class member survives the testator but dies before the date of vesting or distribution.

In the instant case, the testator’s intention that his property be distributed only to those in his bloodline was sufficiently indicated to require his intention to be given effect.

Accordingly, I concur.

Connors, J., concurs in the foregoing concurring opinion.

The testator’s intention was formulated under a clear statutory and judicial rule that gradually evolved to a different state of law. G.C. 8030, effective August 5, 1921 (109 Ohio Laws 179-180), a part of the Adoption Act, provided:

“* * * [A]nd the 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 of inheriting property expressly limited to the heirs of the body of the adopting parent or parents; * *

G.C. 10512-19 was enacted as part of the new Probate Code effective January 1,1932. At that time, the following language was added to the provisions of what was formerly G.C. 8030: “* * * but 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 * * (114 Ohio Laws 474.)

A presumptive rule formerly existed in Ohio that an adopted child was deemed excluded from a class of beneficiaries when the testator was a stranger to the adoption and had not otherwise manifested an intent to include adopted children. Third National Bank & Trust Co. v. Davidson (1952), 157 Ohio St. 355 [47 O.O. 257], Presently, R.C. 3107.15, effective January 1, 1977, creates a presumption of inclusion for adopted children unless affirmatively excluded by language in the instrument. It provides in pertinent part:

“(A) A final decree of adoption and an interlocutory order of adoption that has become final, issued by a court of this state, shall have the following effects as to all matters within the jurisdiction or before a court of this state:
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“(2) To create the relationship of parent and child between petitioner and the adopted person, 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.”