Opinion
1946-12-19
WARDEN v. WARDEN.
Heffernan & Koubek, of Cleveland, for Marie Warden, guardian of George Thomas Warden, a minor. Elmer J. Warrick, of Cleveland, for Helen Ruth Warden, minor daughter of Howard J. Warden, deceased.
Proceeding on the application by Marie Warden, guardian of George Thomas Warden, a minor, opposed by Helen Ruth Warden, a minor, for a declaratory judgment determining whether defendant is entitled to share in the exempted estate, out of estate, of Howard J. Warden, deceased.
Judgment entered for plaintiff.Heffernan & Koubek, of Cleveland, for Marie Warden, guardian of George Thomas Warden, a minor. Elmer J. Warrick, of Cleveland, for Helen Ruth Warden, minor daughter of Howard J. Warden, deceased.
BREWER, Judge.
The plaintiff, Marie Warden, is the duly appointed, qualified and acting guardian of the person and eatate of George Thomas Warden, minor of Howard J. Warden, deceased. This minor is now 17 years of age. Said minor's father died testate on May 7, 1945, without leaving a surviving spouse, but he did leave six children, two of whom are minors, the said George Thomas Warden, aged 17 years, and Helen Ruth Warden, aged 19 years.
The will of the said Howard J. Warden was duly admitted to probate in this court in case No. 371068. On October 27, 1945, in the due course of administration an inventory and appraisal of said decedent's estate was filed. The appraisers appointed by the court, in the performance of their duties, set aside an exempted estate for the aformentioned minor children in the sum of $1,000, the said sum to be apportioned to said minors in equal shares.
The said minor, Helen Ruth Warden, was adopted in infancy by her maternal grandparent. The status of the other minor, George Thomas Warden, however, remains unchanged.
By reason of these facts the guardian of the minor, George Thomas Warden, questions the right of the minor Helen Ruth Warden, to share in the exempted estate, and for the purpose of determining this question, filed the petition for a declaratory judgment.
Section 10509-54, General Code, provides that when a person dies leaving a surviving spouse, or a minor child or children, certain property if selected shall not be deemed assets or administered as such, but must be included in the inventory. The property specifically enumerated in said Section 10509-54, General Code, includes household goods, certain tools, wearing apparel, heirlooms, pictures, books, etc., to be selected by the surviving spouse, or if there be no surviving spouse, then by the guardian of such minor child or children, not exceeding in value 20% of the appraised value of the property, real and personal, included in the inventory, but in no event is the value of the property not deemed assets to be more than $2,500, if, there be a surviving spouse, nor more than $1,000 if there be no surviving spouse, but a surviving minor or minor children, and not less than $500 in either case, or, if the personal property be less in value than the total amount which may be selected, then such surviving spouse, or guardian, shall receive such sum of money as shall equal the difference between the value of the personal property so selected and such amount.
The deceased parent of the aforementioned minors having died leaving no surviving spouse, and having left no personal property out of which the articles of tangible personal property enumerated in the statute could be selected, the appraisers set aside an exempted estate for the said minors of $1,000 in money. The plaintiff, as the guardian of George Thomas Warden, one of the aforementioned minors, objects to the apportionment of any of the estate to the other minor, Helen Ruth Warden, thus raising the question whether or not a child who was adopted in infancy, and after its adoption has lived with and has been supported and maintained by its adoptive parents, is entitled to an exempted estate, or any part thereof, out of the estate of its natural parent. This question seems to be one that has never been decided by the courts of this state.
It is the contention of the plaintiff, that, inasmuch as the minor, Helen Ruth Warden, was adopted while she was still an infant, that her father, Howard J. Warden, was relieved of all obligation for the support, maintenance and education of said child, and that for this reason the minor Helen Ruth Warden, is not entitled to share in the exempted estate set aside by the appraisers.
The statute fails to express the object or purpose of the exempted estate, but its effect has been to increase the amount of property available for the support of decedent's family. It has been suggested that the purpose was to compensate the surviving spouse for the loss of her vested dower rights, which were abolished by Section 10502-1 in 1932.
Whatever the purpose of the exempted estate may be, it seems clear that it is not intended as an inheritance. In Davidson v. Miners' & Mechanics' Savings & Trust Company, 129 Ohio St. 418, 195 N.E. 845, 98 A.L.R. 1318, the court held that the widow's year's allowance and the allowance given her under Section 10509-54, General Code, are a debt and a preferred claim, respectively, against her deceased husband's estate, deductible before a determination of the share of the estate to be taken by the widow under the statute of descent and distribution.
The exempted estate, insofar as the person or persons entitled to receive it are concerned, a widow or minor child, operates as an addition to the allowance for their year's support.
The rights and duties of an adopted child and of the adopting parents are set forth in Section 10512-23 of the General Code. It states, in part, ‘except as hereinafter provided in the case of adoption by a step-father or step-mother, the natural parents, if living, shall be divested of all legal rights and obligations due from them to the child or from the child to them, and the child shall be free from all legal obligations of obedience or otherwise to such parents; and the adopting parent or parents of the child shall be invested with every legal right in respect to obedience and maintenance on the part of the child as if said child had been born to them in lawful wedlock; and the child shall be invested with every legal right, privilege, obligation and relation in respect to education, maintenance and the rights of inheritance * * *. Nothing in this act shall be construed as debarring a legally adopted child from inheriting property of its natural parents or other kin. * * *’
It is the duty of the appraisers in all cases at the time of taking inventory and appraising assets of the estate, to set off to the surviving spouse the property or money to which she is entitled under Section 10509-54, General Code, and also to give the widow in property or money her year's allowance as provided in Section 10509-74, General Code. This allowance is intended not only for the support of the widow, but for the support of the children of the decedent, the allowance for the support of the children to be set off, however, only when necessary. In the language of the statute, ‘The appraisers also shall set off and allow to the widow, and children under the age of eighteen years, if any there be, or if there be no widow, then to such children, sufficient provisions or other property to support them for twelve months from the decedent's death, but such allowance shall be set off to such children only when necessary for their support, taking into consideration the father's primary duty to care for his children. * * *’
It appears on consideration of Section 10503-4, Section 10509-54 and Section 10509-74, that the exempted estate is not an inherited right, and that a minor child is entitled thereto only when certain circumstances obtain, namely, when both parents are dead, or when the surviving parent is the father, and he is unable to support the child.
In the case at bar the parents are both deceased, and two minor children survive. One of these children was adopted at an early age and had been and is now supported and maintained by the adoptive parent.
Under Section 10512-23, General Code, on the granting of the decree of adoption, the natural parents of the child, if living, are divested of all legal obligations due from them, and the child is freed from all obligations of obedience, or otherwise, to such parents, and the adoptive parents are invested with every legal right in respect to obedience and maintenance on the part of the child, as if said child had been born to them in lawful wedlock.
The plaintiff cites the case of Goss v. Harris, 117 Ga. 345, 43 S.E. 734, 735, which has considerable similarity to the case at bar. The case deals with a citation in which a minor daughter was married. She, at the time of her father's death, was living with and was supported by her husband. A suit was brought for an allowance under the Georgia Code for the support of the family. The court held that she was not entitled to an allowance for support. The court in its opinion said:
‘* * * We think it (the statute) was intended to provide a support for the widow and those of the children whom the father was under a legal duty to support while he lived. When a girl marries and leaves her father's home, the family relation ceases for many purposes. She sets up a new family of her own. She no longer has any legal right to look to her father for support and maintenance. He is no longer bound to pay any debts the may incur for necessaries. As to all these matters the husband has taken the place of the father, and, if the father is relieved of these obligations while he lives, there would seem to be no good reason why a burden of this kind should fall upon his estate after his death, and thus lessen the income of others who are really dependent upon his estate for a support, and to whom he was, while in life, bound both legally and morally to furnish a support.’
In the case at bar, the minor, as in the Georgia case, had ceased to be a member of the father's family. She no longer had any right to look to him for the support. By the decree of adoption, the minor's natural father was relieved of the burden of her support, and this obligation was placed on the adoptive parent.
Under Section 10509-74 an allowance for a minor child is to be set aside only when necessary, and now that the minor's natural father is dead and she is supported and maintained by her adoptive parent, there appears to be no reason, either morally or legally, why this obligation should be cast upon the natural father's estate.
Certainly it does not appear to this court to have been the intent of the Legislature that a minor child should be entitled to receive allowances from its natural parents' estate and at the same time be entitled as it is to receive allowances from its adoptive parents' estate. To so hold would mean that the minor child might receive its allowance twice.
It is the opinion of this court that the minor in this case is not entitled to share in the exempted estate.