Wills — Construction — Children — "Living at the time of my death" — Those living at time of execution of will also listed by name — Child later adopted — Intention at time of execution prevails — Section 3107.13, Revised Code — Adopted child no longer child of natural parent for purposes of statutory descent — Express statutory disclaimer of effect to debar child from taking under will, when.
1. The language of a will should be construed in the light of the surrounding circumstances at the time of its execution, except as it appears that the testator was anticipating that different circumstances might exist at the time of his death.
2. A bequest to "those of my children who shall be living at the time of my death," which also names the testator's children living at the time of the execution of the will, as to each of the named children is an individual rather than a class gift, except as its size might be diminished by an increase in the number of his children.
3. Section 3107.13, Revised Code, although generally denying an adopted child the legal status of a child of his natural parents, expressly prevents the debarring of such a child from taking under the will of a natural parent, when he is identified by name or otherwise clearly identified as the intended beneficiary.
ZIEGEL, J. (by assignment).
In this declaratory judgment proceeding the administrator with will annexed and the testamentary trustee want to know whether decedent died with two children or with three children living at the time of his death. Decedent died unmarried on January 29, 1968, a resident of Montgomery County, and his will, which was executed in New Jersey on November 25, 1960, has been duly admitted to probate. The Seventh Item of that will provides:
"SEVENTH: All the rest, residue and remainder of my estate, both real and personal, of every nature and whereever situate, of which I may die seized or possessed, I give, devise and bequeath to my Executors and Trustees hereinafter named, in trust, nevertheless for the following uses and purposes:
"(a) to divide the then principal of the trust, into as many equal parts as shall equal in number those of my children who shall be living at the time of my death. The children living at present are: Clifford J. Bedillion, seven years of age, Charles P. Bedillion, five years of age, and William J. Bedillion, two years of age.
"(b) my trustee shall set apart and hold one such equal part as a separate trust fund for the benefit of each of my children who shall be living at the time of my death and shall invest * * * etc. * * *"
On July 3, 1963, in the Orphans' Court of Washington County, Pennsylvania, the Charles P. Bedillion named in paragraph (a) above was adopted by decedent's brother and his wife, Donald J. and Jane Z. Bedillion, and his name was changed to Charles Zedeker Bedillion.
It is conceded that the New Jersey drawn will and the Pennsylvania granted adoption are immaterial factors in this case. The laws of Ohio apply to the construction of an Ohio decedent's will. Lozier v. Lozier, 99 Ohio St. 254.
Section 3107.13, Revised Code, provided, during all of the period involved in this case, that "for all purposes under the laws of this state, including without limitation all laws and wills governing inheritance of and succession to real or personal property * * *, a legally adopted child shall have the same status and rights, and shall bear the same legal relationship to the adopting parents as if born to them in lawful wedlock and not born to the natural parents. * * *" In other words, when a child is adopted it becomes to all intents and purposes the child of its adopting parents, and is no longer the child of its natural parents. Here, under this statute, upon adoption, Charles P. Bedillion, whose name was changed to Charles Zedeker Bedillion, became a nephew of decedent and ceased in contemplation of law to be his child. Thus, the guardian ad litem for Clifford and William contends that Charles should not be included in those covered by the beneficiary designation in decedent's will, "my children who shall be living at the time of my death;" that this is a class gift to "children"; and that as of the date of decedent's death when this will speaks, Charles was not a child of decedent. In support of this proposition he cites 56 Ohio Jurisprudence 2d, Sections 646 et seq., p. 176 ff., which define various factual situations creating class gifts. These rules, however, must always yield to the manifest intention of the testator as gathered from the whole will, viewed in the light of the surrounding circumstances. Starling v. Price, 16 Ohio St. 29.
"Since, in construing a will, the relevant intention of the testator is that which he entertained at the time of the execution of the instrument, the language used in the will is to be read as applied to the subject matter and in the light of the surrounding circumstances at the time of execution, and not with reference to circumstances at the time of the death of the testator, except insofar as the latter are connected with the former." 56 Ohio Jurisprudence 2d Section 522, p. 57. What were these circumstances in the case at bar?
From the will and the stipulations it would appear that at the time he made this will decedent was a widower with three small children. His primary purpose in drafting his will was to provide for and protect these three children. For this reason he specifically named all three of them, although he did recognize the fact that before he died he might marry again and have other children. Thus he used the words "children who shall be living at the time of my death." The key word here is "living." Each one of the three children named in the will was to be included as a beneficiary of the trust created if such one was living at the time of decedent's death. Under this language the only way one of these named three could be eliminated would be if one of them did not survive decedent. In addition, decedent made provisions in case he should have children other than these named three living at the time of his decease.
Any other construction ignores the word "living." At the time this will was executed Charles was a living child of the decedent. At the time of decedent's death he was still living and thus continued to be an object of decedent's bounty.
Insofar as these three named children were concerned, the gift was to each of them as individuals, not as members of a class. Gifts by names usually constitute gifts to individuals to which the class description is added by way of identification. Jewett v. Jewett, 21 Ohio C. C. 278, affirmed without opinion in 67 Ohio St. 541, and cited with approval by Judge Zimmers of this court in Nolan v. Borger, 95 Ohio Law Abs. 225. They were also members of a class to the extent that the size of each individual's share might be diminished if the number of members in the class, i. e., decedent's living children, were increased between the time the will was executed and decedent's death, and visa versa, that the size of each individual's share might be increased if any of the named members of the class should not be living at the time of decedent's death.
Unless a testator's intent as expressed in his will at the time of its execution is changed by amendment or codicil or by operation of law, it remains the same and is crystallized upon his death. Here decedent did not in any way amend this will. The fact that one of his children was adopted does not change that intent by operation of law. While Section 3107.13, Revised Code, makes Charles no longer a child of the decedent, the holding here is not inconsistent with that section since the last paragraph thereof provides that "this section does not debar a legally adopted child from inheriting, under a will identifying such child by any name by which he has been or is known or other clear identification, property of such child's natural parent or parents or other natural kin as in case of bequest or devise to any other person." There is no question that the Charles F. Bedillion named in decedent's will and the Charles Zedeker Bedillion who is the adopted child of the defendant Donald J. Bedillion is one and the same person.
Judgment accordingly.