Dissenting Opinion.
Olds, J.— I am unable to concur in the opinion of the majority of the judges in this case. As appears from the facts John Krauss, the owner of the land, died intestate in 1889; that at the time of his death he was, and for fifteén years next prior thereto he had been, an inhabitant and resident of Indiana; that he left surviving him Hannah Krauss, his widow; that he had by her no children, and he had born to him no children by any former wife; that during the lifetime of a former wife, and while they resided in the State of *306Ohio, and before he became the owner of the land in dispute in this case, he and his first wife, by proceedings in the probate court of Huron county, Ohio, duly adopted the appellee as their child. After such adoption his first wife died, and John Krauss afterwards remarried to Hanna Krauss, and became the owner of the land in question; that after said John Krauss died his widow sold the land to the appellant, the appellant paid for the same, and the widow conveyed the land to him; that after the appellant had purchased and paid for the land, and received a conveyance for the same, and the widow had died, the appellee filed, in the clerk’s office of the Washington Circuit Court, a transcript of the record of his adoption by John Krauss and his first wife, in the probate court of Huron county, Ohio, and is thereby claiming the land and disputing the appellant’s title.
It is averred that John Krauss died in 1889, whether before or after the amendment of section 2487, R. S. 1881, does not appear, and is immaterial.
In my opinion some of the sections of our statute recognize a difference between a natural and adopted child, and admitting for the purpose of the decision of the other question, that the proceedings in the filing of the transcript of the record of adoption in the clerk’s office of the Washington Circuit Court were regular and in due time, and gave to the appellee all the rights he could have by any possibility acquired by a strict compliance with the provisions of section 829, R. S. 1881, I can not agree that the widow took only a life-estate in the land, or that at her death it descended to the adopted son. It is the theory of our law of descent that the widow of a decedent shall be liberally provided for. Dower has been abolished, and a fee simple in one-third, and in some instances even a more liberal allowance, is given in its stead. Section 2490, R. S. 1881; gives-to the surviving husband or wife the whole of the intestate’s estate, real and personal, in case such intestate leaves no child and no father or mother surviving. Section 2486 gives to' *307the widow one-half of the estate of the husband in case he die intestate, leaving but one child. In the case at bar, if either section 2486 or 2490 govern, the widow would take one-half of the whole, and they must and do control unless the inheritance is governed by some other section or sections of the statute inconsistent therewith. The proviso to section 2487 declares that “ if a man marry a second or other subsequent wife and has by her no children, but has children alive by a previous wife, the land which, at his death, descends to such wife, shall, at her death, descend to his children.” This section is amended by the act of 1889, Elliott’s Sup., section 423, to limit the wife’s inheritance in such case to a life-estate. The widow in the case at bar being dead at the time suit was brought, if either provision is applicable the adopted son would be the owner in fee at that time. I can not agree to such an interpretation of the statute. In my judgment section 2487, swpra, and the amended section 423 relate to and apply only when there are natural children born to the husband by a former wife, who survives him. This section has no relation to adopted children or their inheritance. It simply puts a limit on the amount taken by a second or subsequent wife, and is intended to limit such estate to be taken by her only in case the husband leaves surviving him a child or children by a previous wife.
A child by adoption is not a child by a wife. A child by adoption is made the child of the adopting parent, or parents, by legal proceedings — by operation of law.
It is suggested that the adopted child is, by section 825, made to stand in the attitude, having all the rights of a natural child. This section provides that “ It shall take the name in which it is adopted, and be entitled to and-receive all rights and interest in the estate of such adopted father or mother, by descent or otherwise, that such child would do if the natural heir of such adopted father or mother,” and it is contended that to hold that it does not take the whole estate in preference to a widow who is a second or subsequent *308wife, nullifies the provisions of this' section, but with this we can not concur. Full force and effect may be given to this section by a construction of the statute simply holding that he is the child of his adopting father, but not a child born of a wife, or what is equivalent, a child by a previous wife. If the statute be so construed as to hold that he is the child of the deceased husband, then he takes one-half of the estate, for section 2486, supra, provides: “ If a husband die intestate, leaving a widow and one child only, his real estate shall descend one-half to- his widow and one-half to his child,” and such a construction is entirely consistent with section 2490, which declares the surviving husband or wife shall take the whole of the estate when no child and no father or mother survive. Such a construction gives full force to the statute authorizing the adoption of children, but to hold that the adopted son is a child by a wife is, in my judgment, absolutely inconsistent with the language used in the statute, and likewise inconsistent and contrary to the will of the Legislature.
The sections of the statute of descents dividing the estate of an intestate between the widow and children make no distinction between the natural and adopted children in case there is but one child of the husband. Whether that child be natural or adopted the widow and the child each take one-half; if there be more than one child the widow takes one-third, but section 2487, and the sections amendatory thereof, which limits the widow’s interest in certain cases to a mere life-estate, expressly provide that such limitation shall only take place where the husband has children alive by a previous wife, clearly expressing the intention that such limitation should not take place except there were natural children born of a former wife. If the intention had been as interpreted by the majority opinion, it would have been fully expressed by the omission of the words “ by a previous wife,” leaving the section to read, “ that if a man marry a second or other subsequent wife, and has by her no *309children, but has children alive, the land which at his death descends to such wife shall at her death descend to his children. It is clear to my mind that the words “ by a previous wife ” were inserted in the statute for a purpose, and as clearly expressing the legislative intention that the wife’s estate should only be limited in case there were natural children born to the husband by a previous wife, and certainly there are no reasons for placing an unnatural or forced construction on the statute favorable to an adopted child as against the second or subsequent wife.
Filed Oct. 5, 1892. Filed Oct. 5, 1892.Conceding, without expressing an opinion, that the proceedings in the matter of adoption are regular, in my opinion the widow and the adopted child each took one-half of the land in fee, and the judgment should be reversed on the ruling of the court in sustaining the demurrer to each paragraph of the complaint.