Opinion
No. 38060
Decided January 15, 1964.
Person designated as heir by decedent — Section 2105.15, Revised Code — Person designated as heir — Recognized as adopted child — Section 5731.09, Revised Code — Succession tax.
1. Generally, one person will be considered as the adopted child of another where there is established or created between them the status or legal relationship of parent and child.
2. That status or relationship can be established or created only by statutory provisions for such establishment or creation.
3. Section 2105.15, Revised Code, amounts to a legislative statement that an heir designated thereunder shall have the attributes of an adopted child.
4. A valid designation of an heir under Section 2105.15, Revised Code, amounts to the recognition by the designator of the designee as an adopted child.
5. A person, who was designated as an heir by a decedent pursuant to Section 2105.15, Revised Code, is, within the meaning of Section 5731.09, Revised Code, a "person recognized by the decedent as an adopted child and designated by such decedent as an heir under a statute of this * * * state," even where there is no other showing, apart from such designation, that the decedent recognized the designee as an adopted child.
APPEAL from the Court of Appeals for Marion County.
Hattie B. Gompf died in 1961. Her niece, Mrs. Haller, is one of the principal beneficiaries under her will. About a year previous to her death, testatrix had designated this niece as her heir in proceedings in the Probate Court pursuant to Section 2105.15, Revised Code, which reads:
" A person of sound mind and memory may appear before the probate judge of his county and in the presence of such judge and two disinterested persons of such person's acquaintance, file a written declaration declaring that, as his free and voluntary act, he did designate and appoint another, stating the name and place of residence of such person specifically, to stand toward him in the relation of an heir-at-law in the event of his death. Such declaration may be attested by the two disinterested persons and subscribed by the declarant. If satisfied that such declarant is of sound mind and memory and free from restraint, the judge thereupon shall enter that fact upon his journal and make a complete record of such proceedings. Thenceforward the person designated will stand in the same relation, for all purposes, to such declarant as he could if a child born in lawful wedlock. The rules of inheritance will be the same between him and the relations by blood of the declarant, as if so born. A certified copy of such record will be primafacie evidence of the facts stated therein, and conclusive evidence, unless impeached for actual fraud or undue influence. After a lapse of one year from the date of such designation, such declarant may have such designation vacated or changed by filing in said Probate Court an application to vacate or change such designation of heir; provided, that there is compliance with the procedure, conditions, and prerequisites required in the making of the original declaration." (Emphasis added.)
In determining the succession tax, the Probate Court found that this niece was a "person recognized by the decedent as an adopted child and designated by such decedent as an heir under a statute of this or any other state," within the meaning of Section 5731.09(B), Revised Code, and taxed her succession in accordance with that statute and at the rate specified by Section 5731.12(B), Revised Code.
After providing for exemption from taxation of certain successions, Section 5731.09 provides:
"* * * successions passing to other persons shall be subject to said sections only to the extent of the value of the property transferred above the following exemptions:
"( A) When the property passes to or for the use of the wife, the husband of a natural or adopted child of the decedent who is a minor at the death of the decedent, the exemption is ten thousand dollars.
"( B) When the property passes to or for the use of a father, mother, adult child, or other lineal descendant of the decedent, or an adult adopted child, or person recognized by the decedent as an adopted child and designated by such decedent as an heir under a statute of this or any other state or country, or the lineal descendants thereof, or a lineal descendant of an adopted child, the exemption shall be seven thousand dollars.
"(C) When the property passes to or for the use of a brother, sister, niece, nephew, the wife or widow of a son, the husband of a daughter of the decedent, or to any child to whom the decedent, for not less than ten years prior to the succession stood in the mutually acknowledged relation of a parent, the exemption shall be one thousand dollars." (Emphasis added.)
Section 5731.12 provides for taxing successions specified in paragraphs (A) and (B) of Section 5731.09 at substantially the same rates and for successions specified in paragraph (C) thereof at substantially higher rates.
The Tax Commissioner excepted to the determination made by the Probate Court, for the reason that there was no evidence to indicate that the designated heir had been recognized by the testatrix as an adopted child.
Those exceptions were overruled by the judgment of the Probate Court. That judgment was affirmed by the Court of Appeals. The cause is now before this court on appeal from the judgment of the Court of Appeals, pursuant to allowance of a motion to certify the record, which motion was allowed because of the apparent conflict of the judgment of the Court of Appeals in the instant case with judgments rendered, with and without opinions, in other appellate districts. See for example In re Estate of George (1959), 82 Ohio Law Abs., 452, and In re Estate of Powell (1959), 82 Ohio Law Abs., 549.
Mr. William B. Saxbe, attorney general, and Mr. Donald A. Hertlein, for appellant.
Messrs. Moore, Myers, Parsell Firstenberger, for appellees.
The question to be determined is whether a person, who was designated as an heir by a decedent pursuant to Section 2105.15, Revised Code, is, within the meaning of Section 5731.09, Revised Code, a "person recognized by the decedent as an adopted child and designated by such decedent as an heir under a statute of this * * * state," even where there is no other showing, apart from such designation, that the decedent recognized the designee as an adopted child.
In Ohio, no statute, other than Section 2105.15, provides for designation of an heir. Hence, the foregoing question must be answered in the affirmative if any person designated as an heir by a decedent pursuant to Section 2105.15, Revised Code, will thereby be a "person recognized by the decedent as an adopted child" within the meaning of Section 5731.09, Revised Code.
Generally, one person will be considered as the adopted child of another where there is established or created between them the status or legal relationship of parent and child, but that status or relationship can be established or created only by statutory provisions for such establishment or creation. 2 American Jurisprudence (2d), 860 et seq., Sections 1 and 2.
Section 2105.15, Revised Code, specifically provides that the designated heir "will stand in the same relation, for all purposes, to such declarant as he could if a child born in lawful wedlock," and that "the rules of inheritance will be the same between him and the relations by blood of the declarant, as if so born."
This certainly amounts to a legislative statement that the designated heir shall have the attributes of an adopted child. It necessarily follows that a valid designation of an heir under Section 2105.15, Revised Code, will amount to the recognition by the designator of the designee as an adopted child.
This conclusion is fortified by observations heretofore made by judges of this court.
Thus, it is stated in the opinion by White, J., in Brower v. Hunt (1868), 18 Ohio St. 311, 341:
"In regard to the statutes of adoption passed April 29, 1854 [now the "designated heir" statute, Section 2105.15, Revised Code], and March 29, 1859 * * * [the first statutes providing for what is now commonly considered adoption] it is sufficient to say that they contain express provisions prescribing the course of descent from the adopted heir, and define his legal status to be that of a child of the adopter." (Emphasis added.)
Again in Judge White's opinion in Lathrop v. Young (1874), 25 Ohio St. 451, 463, it is stated with regard to the same statutory enactments: "These acts give to the adopted heir the legal status of a child of the adopter, born in lawful wedlock; and the statute requires him to be regarded as such child, in tracing descent to or from him in the cases therein specified." (Emphasis added.)
In Cochrel, a Minor, v. Robinson (1925), 113 Ohio St. 526, 532, 149 N.E. 871, Day, J., states parenthetically that "designated heirs may be so regarded," i.e., as "adopted children."
We recognize that there has been a tendency to belittle the unchanging status of a designatd heir compared to the much improved status of a child adopted pursuant to judicial decree in accordance with what are ordinarily referred to and considered now as our adoption statutes. See Blackwell, Gdn., v. Bowman, Exr. (1948), 150 Ohio St. 34, 80 N.E.2d 493; Kirsheman v. Paulin, Exr. (1951), 155 Ohio St. 137, 98 N.E.2d 26; Howells, Admr., v. Limbeck (1961), 172 Ohio St. 297, 302, 303, 175 N.E.2d 517, 87 A.L.R. (2d), 1269. This has probably encouraged a tendency not to regard the statutory designation of an heir as a recognition of the designee "as an adopted child"; and it has probably caused the action of the Tax Commissioner in this proceeding.
However, the words, "recognized by the decedent as an adopted child and designated by such decedent as an heir under a statute of this * * * state," now in Section 5731.09, Revised Code, have been in our statutes for most of the time since 1894. In our opinion, they were and have until fairly recently always been considered as referring to one designated as an heir under the statute which is now Section 2105.15, Revised Code, whether or not anything besides such designation was done by the designator to recognize the designee as an adopted child.
Judgment affirmed.
ZIMMERMAN, MATTHIAS, O'NEILL, GRIFFITH, HERBERT and GIBSON, JJ., concur.