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[2] Such simple, sweeping language would The self-evident purpose of this divesting seem sufficient per se to invest the adopted provision of section 8030, General Code, is child with all the rights and privileges of the that, if there be a failure of issue of the natural child. Lest there be any doubt in the adopted child, then the new line of descent minds of the superstrict as to the legal sense provided for by the adoption statutes ceases, and scope of this last clause of section 8029, and the property reverts back to the blood of General Code, the Legislature further enact- the ancestor; but as long as there was issue ed to like effect section 8030, General Code, of the child, such issue should take as "the which reads in part:

child and legal heir." Again, this divesting "Such child shall be the child and legal heir provision is an exception grafted on to the of the person so adopting him or her, entitled to statute. The statute being remedial, naturalall the rights and privileges and subject to all the obligations of a child of such person begot- | ly the exception should be strictly, but reaten in lawful wedlock."

sonably, construed, and must be governed by It will be noted that the statute provides the familiar rule that the exclusion clearly that: (1) An adopted child "shall be the child made in the exception only emphasizes the inand legal heir of the person so adopting";

clusion of all other things germane to the and (2) an adopted child shall have all the statute which are not so excluded. rights and privileges

of a child of

[4] The contention is made here that the such person begotten in lawful wedlock.” If words “all the rights and privileges," as used legal language is capable of clearness and in the statute, mean only personal rights certainty, surely so far there can be no

and privileges, but there is no warrant for doubt that the foregoing statutes fully and thus cutting down or cutting out the word effectively invest the adopted child with all "all,” and the courts should apply the lanthe rights and privileges of a natural child guage in the broad and humane spirit in begotten in lawful wedlock.

which it was written into the law and policy

of this state. [3] But it is cogently contended that this

The humanitarian policy of these laws has investment of the adopted child with all the rights and privileges of a natural child born been discussed in Ransom, Adm'r, v. New in lawful wedlock is later cut down by lan- York, Chicago & St. Louis Ry. Co., 93 Ohio

St. 223, 112 N. E. 586, which case at botguage equally clear, by virtue of which an adopted child is divested of some of the tom involves many of the same legal princirights of inheritance or descent of a natural ples as are here presented. child. The provision relied on is the last the judgment below, and the same is there

In this view of the case, we find no error in clause of said section 8030, General Code,

fore affirmed. which reads: "But on the decease of such person (the adopt

Judgment affirmed. ing parent) and the subsequent decease of such adopted child without issue, the property of such

NICHOLS, C. J., and JOHNSON, DONAadopting parent shall descend to his or her next HUE, NEWMAN, JONES, and MATTHIAS, kin, and not to the next kin of such adopted JJ., concur. child." We are asked to interpret this provision.

(94 Ohio St. 342) Now, the right to judically interpret a duly SNYDER v. STATE LIABILITY BOARD OF enacted statute is based upon some apparent

AWARDS et al. (No. 15135.) uncertainty of meaning, some apparent am

(Supreme Court of Ohio. June 23, 1916.) biguity of terms, some apparent conflict of provision. If a sentence of a statute can be

(Syllabus by the Court.) set forth in simple speech, the same has been 1. MASTER AND SERVANT Om 417(142), New, done in the provision last quoted. To inter vol. 24 Key-No. Series—WORKMEN'S COMPENpret what is already plain is not interpreta SATION ACT PROCEEDINGS “FINAL ACtion, but legislation, no matter by what name


The term "final action" as used in section it may be called. Analyze this divesting sen- 1465–90, Gen. Code (as added by Act Feb. 26, tence. The conditions precedent to the ap-1913 [103 Ohio Laws, p. 88, 8 43]) has relation plication of this last provision are as follows: to the question whether or not the Industrial (1) The adopted child's decease must be sub-Commission has jurisdiction to allow compensa

tion to a claimant out of the state insurance sequent to the decease of the adopting par- fund, and under the provisions of that section, ents; (2) the adopted child must have no is- as a condition precedent to the right of claimant

There is a total failure of these two to file his appeal in the court of common pleas, conditions precedent under the conceded facts there must be a denial of his right to participate

at all in such fund, based upon one of the juof this case. First, the adopted child's de- risdictional matters enumerated in the section. cease was prior to the death of the adopting 2. MASTER AND SERVANT 417(142), New, parents, and, second, she left surviving her vol. 24 Key-No. Series-WORKMEN'S COMPENand surviving the adopting parents issue in SATION ACT-PROCEEDINGS-APPEAL E., her daughter, who subsequently married

Where an award has been made to a claimF., who was made sole devisee by the will ant upon his application to the Industrial Com

mission, its jurisdiction under the provisions of of E., the devise including the property of section '1465–86, Gen. Code (as added Act Feb. the ancestors, A. and B.

26, 1913 [103 Ohio Laws, p. 88, § 39]), is con


tinuing, and it may make such modification or on the ground that the court was without change with respect to the award as in its opin- jurisdiction to hear the case. This motion ion may be justified, and the provisions of section 1465–90, Gen. Code, providing for an ap

was overruled, as were similar motions made peal to the court of common pleas, are not ap- at the close of plaintiff's evidence and at plicable.

the close of all the evidence in the case. The Certified by Court of Appeals, Allen Jury returned a verdict in favor of plainCounty.

tiff in error, finding and fixing the weekly Proceedings under the Workmen's Com- indemnity and compensation at $10. A mopensation Act by Newton Snyder, to obtain tion for a new trial was overruled, judgcompensation for personal injuries, opposed ment was rendered on the verdict, and er. by the Lima Locomotive Corporation, em

ror prosecuted to the Court of Appeals by ployer. From a decision denying further the Industrial Commission. That court re. compensation, the claimant appeals to the versed the judgment of the court of common court of common pleas and files his petition. pleas, upon the ground that the court of The Court of Appeals reversed a judgment common pleas did not have jurisdiction of for plaintiff, and certified the record to the the subject of the action, and, further, findSupreme Court. Affirmed.

ing their judgment in conflict with the judgOn the 18th day of January, 1913, the another Court of Appeals of this state, the

ment pronounced upon the same question by plaintiff in error, Newton Snyder, was injured in the course of bis employment while judges certified the record of the case to in the employ of the Lima Locomotive Cor. this court for review and final determina

tion. poration, an employer who had paid into the state insurance fund the premiums re T. R. Hamilton, of Lima, for plaintiff in quired by the act of May 31, 1911 (102 Ohio error. Edward C. Turner, Atty. Gen., and Laws, 524). Plaintiff in error filed an ap- John G. Price and Eugene Carlin, both of plication with the State Liability Board of Columbus, for defendants in error. Awards, for compensation out of the state insurance fund for his injuries, and on the

NEWMAN, J. Plaintiff in error claims 14th day of May, 1913, the board, afte due notice to him of the time and place for the the right of appeal to the court of common hearing of the application, awarded him com- pleas under the provisions of section 36 of pensation for 151/7 weeks' disability, begin the act of May 31, 1911 (102 Ohio Laws, 531), ning at the date of his injury exclusive of now section 1465—90, General Code. This the first week, at the rate of $12 per week, section is as follows: amounting to $181.71, and also the sum of "The board shall have full power and authority $18 for medical service. On May 26, 1913, to hear and determine all questions within its the board made a further award in the final. Provided, however, in case the final ac

jurisdiction, and its decision thereon shall be sum of $19 for hospital service rendered to tion of such board denies the right of the claimplaintiff in error. The amount awarded to ant to participate at all in such fund on the plaintiff in error was paid to and accepted ground that the injury was self-inflicted or on by him, and the amounts awarded for med- the ground that the accident did not arise in the

course of employment, or upon any other ground ical and hospital services were paid as au- going to the basis of the claimant's right, then thorized and directed by him in his applica- the claimant within thirty (30) days after the tion. On August 20, 1913, a letter was writ. notice of the final action of such board may, by ten to the board by the attorney of plaintire filing his appeal in the common pleas court of

the county wherein the injury was inflicted, be in error, asking for information in reference entitled to a trial in the ordinary way, and be to the claim, and on August 26, 1913, this entitled to a jury if he demands it. In such a attorney was notified by the board that it proceeding, the prosecuting attorney of the counhad acted in the matter on August 11, 1913, sent the State Liability Board of Awards, and

ty, without additional compensation, shall repre. that it had considered that no further com- he shall be notified by the clerk forthwith of the pensation was due, and that the case was filing of such appeal. closed.

“Within thirty days after filing his appeal, the Thereafter, plaintiff in error filed his ap- against such board as defendant and further

appellant shall file a petition in the ordinary form peal in the court of common pleas of Allen pleadings shall be had in said cause according to county. Within 30 days after the filing of the rules of civil procedure, and the court, or the his appeal he filed his petition, the sufficien- jury, under the instructions of the court, if a cy of which was challenged by demurrer. the claimant; and, if they determine the right

jury is demanded, shall determine the right of The demurrer was overruled. An answer in his favor, shall fix his compensation within and a reply thereto were then filed. The the limits under the rules prescribed in this act; case was tried to a jury. At the close of and any final judgment so obtained shall be paid the opening statement to the jury by the the state insurance fund in the same manner as

by the State Liability Board of Awards out of attorney for plaintiff in error, the attorneys such awards are paid by such board. for the Industrial Commission of Ohio, "The cost of such proceeding, including a reawhich had superseded the State Liability sonable attorney's fee to the claimant's attorney Board of Awards, made a motion in which to be fixed by the trial judge, shall be taxed

against the unsuccessful party. they asked the court to direct the jury to re "Either party shall have the right to prosecute turn a verdict in favor of the defendant up-1 error as in the ordinary civil cases."

It is averred in the petition filed in the employer bad contributed to the state insurcourt of common pleas that the State Liabil- ance fund, the employé was injured in the ity Board of Awards, on or about the 26th course of his employment, there could be day of August, 1913, absolutely rejected the no denial of his right, and he was therefore claim of plaintiff without any right or au- permitted to participate in the fund. thority so to do, and refused to make pay [1, 2] But it is urged that, when the board ment in compliance with the provisions of on August 11, 1913, held that no further comthe law. The anguage used in the statute pensation was due and the case was closed, above quoted is not adopted by the pleader, that was the "final action" of the board nor are any of the grounds enumerated in within the meaning of the statute, and was the proviso set out in the petition. But for a denial of the right to participate. Counthe purposes of this case the language used sel do not specify the ground upon which in the petition may be construed to mean this so-called final action was based. It could that plaintiff has been denied the right to not have been upon the first ground, viz. participate at all in the state insurance fund, that the injury was self-inflicted; nor upon and it may be assumed that facts sufficient the second, that the accident did not arise to show jurisdiction in the court of common in the course of employment; nor upon any pleas are stated. But the question then ground which went to the basis of the claimarises whether the allegation to which we ant's right-for instance, upon the ground have referred was sustained by any evidence. that the complainant was not an employé of It appears that the state liability board of the employer at the time of the injury, or awards did make an award to plaintiff in that he had brought an action for damages error in the sum of $181.71, which was paid directly against the employer, and so on. It to and accepted by him, and that there was is true that so far as the record discloses also made an additional award for medical the action taken by the board on August 11, and hospital services. It is to be observed | 1913, was its latest action. But we do not that the statute which confers the right of think this can be said to be the "final acappeal does so upon condition that final ac- tion" of the board within the meaning of tion of the board denies the right of the the statute. Counsel seem to have given no claimant to participate at all in the fund, effect to the provisions of section 33 of the upon one of the grounds therein enumerated. act of May 31, 1911, now section 1465—86, This right of appeal proceeds upon the the General Code, which reads: ory that there has been a finding by the “The power and jurisdiction of the board over board that it is without jurisdiction to act each case shall be continuing, and it may from

time to time make such modification or change in the matter. If the board should find that with respect to former findings or orders with rethe injury complained of was self-inflicted, spect thereto, as, in its opinion, may be justior that the injury did not arise in the course fied.” of employment, or that there was some other

The board in the instant case had jurisdicground which went to the basis of claimant's tion of this matter, and under the provision right, then the board, being without juris- just quoted its jurisdiction was continuing, diction, must necessarily deny the right of and we are of the opinion that the term “finclaimant to participate. The claimant then al action” as used in section 1465—90,

supra, under the proviso in the statute in question has relation to the question whether or not has his day in court, and it is expressly pro the claimant has the right to participate at vided that after the appeal is perfected and all in the insurance fund. When the board the pleadings are filed the court, or a jury made a finding favorable to the applicant and under the instructions of the court, if a jury allowed the sum of $181.71, that was its is demanded, shall determine the right of "final action." True it subsequently found the claimant to participate in the fund. that no further compensation was due, but That is the first question to be determined that did not prevent plaintiff in error from by the court or jury. If it is determined presenting an application for a rehearing of adversely to the claimant, that is the end of the matter, which, so far as the record disthe matter. If there is a finding in his fa- closes, has not been done. vor, then the court or jury goes further and This case was certified to this court upon fixes the compensation within the limits and the ground that the judgment was in conflict under the rules prescribed by law, and the with that pronounced in the case of Sam judgment so obtained shall be paid out of Police v. State Industrial Commission of the insurance fund. The court or jury, as Ohio, 23 Ohio Cir. Ct. R. (N. S.) 433. The we view it, would have no authority under facts in that case were wholly different. In the provisions of this statute to deal with the Police Case application was made for the amount of compensation unless the ques- compensation for an injury received in the tion of the right of the complainant to par- course of employment, viz. double hernia. ticipate in the fund was in issue. In the The State Liability Board of Awards found case under consideration this right could not affirmatively that the hernia from which be, and was not, denied claimant by the State claimant was suffering and for which he Liability Board of Awards. The matter was made claim for compensation did not result

employment, the effect of which finding was fiduciary relationship between testatrix and that the board was without jurisdiction to devisee who aided in preparing the will and remake an allowance as asked for, and there did not then have the burden of proving absence

ceived undue advantage thereunder, the devisee fore there was a denial of the right to par of undue influence, but only . of rebutting the ticipate in the fund upon the second ground prima facie case with some evidence. enumerated in the proviso in section 1465

[Ed. Note. For other cases, see Wills, Cent.

Dig. $ 396; Dec. Dig. Om 163(4).) 90. In the Police Case a nominal award was made by the board for something that was 4. WILLS C 166(4) – UNDUE INFLUENCE

FIDUCIARY RELATION-EVIDENCE. not asked for by the applicant. The Court Evidence showing that testatrix was in poor of Appeals found as a fact that the board de health and sometimes suffered severely, and her nied the right of the claimant to participate son, a lawyer, aided in drawing the will, and

was substantially benefited by it, held to susat all in the fund, on the ground that the actain finding that will was procured by undue incident did not arise in the course of employ- Auence. ment, and held that an award of something [Ed. Note.-For other cases, see Wills, Cent. of which applicant was at no time or in any Dig. § 428; Dec. Dig. Ow166(4).] manner a claimant could not defeat his right Appeal from Circuit Court, Menard Coun. to appeal, dependent only upon the denial of ty; Guy R. Williams, Judge. the claim made.

Will contest by Ethel C. Gum against As we view the present case, plaintiff in Thomas P. Reep, named executor in the error, in invoking the jurisdiction of the will of Anna B. Reep, and others. From a court of common pleas, sought to have that decree setting aside the will, defendants apcourt review the amount allowed to him by peal. Affirmed. the State Liability Board of Awards. His

Smoot & Laning, of Petersburg, for appelright to participate in the fund, as we have lants. Hardin W. Masters and Thomas D. seen, had not been denied, and a denial of Masters, both of Springfield, for appellee. this right upon one or more of the grounds set out in the statute being a condition pre

FARMER, J. This is an appeal from a cedent to his right to appeal to the court decree entered in a will contest case in of common pleas, that court was therefore which the will was set aside as not being without jurisdiction to act in the matter, and the act and deed of the testatrix, Anna B. the Court of Appeals was correct in so find- Reep, who died February 9, 1915, leaving the ing.

instrument contested purporting to be her Judgment afirmed.

last will and testament executed February

24, 1914. NICHOLS, C. J., and JOHNSON, DONA

The testatrix left surviving her a husband, HUE, JONES, and MATTHIAS, JJ., concur. Eli Reep; also her children, Nannie B.

Gum, Thomas P. Reep, Martha A. Clark, (275 Ill. 503)

Alice Maud Batterton, Mary A. Gaddie, EthGUM V. REEP et al. (No. 10799.)

el C. Gum, and Edward L. Reep; also Ely (Supreme Court of Illinois. Oct. 24, 1916. Ro Reep, her granddaughter, the only child of

a deceased son. Stripped of unnecessary hearing Denied Dec. 8, 1916.)

verbiage, the will, after directing the pay1. WILLS 166(4) - UNDUE INFLUENCE FIDUCIARY RELATION.

ment of the debts and funeral expenses and Where a fiduciary relation exists between the purchase of a marker for testatrix's testator and a devisee who receives a substan- grave at a cost not to exceed $300, directs tial benefit from the will, and the testator is that the remaining personal estate be conthe dependent and the devisee the dominant parverted into money by the executors; onety, and the testator reposes trust and confidence in the devisee, as in the ordinary relation of at- third of the proceeds to be paid to her hustorney and client, and the will is written or its band and the balance divided equally among preparation procured by that beneficiary, proof her children then living and the said grandof these facts establishes prima facie that the execution of the will was the result of undue in child, Ely Reep. The fourth clause of the Auence exercised by that beneficiary, and, stand will recites the testatrix had paid out more ing alone and undisputed by other proof, enti- money for the education of her daughter Ethtles contestants to a verdict.

[Ed. Note.-For other cases, see Wills, Cent. el (complainant in the bill to contest the will) Dig. § 428; Dec. Dig. Om 166(4).]

than for her other children; that she had 2. WILLS Om 166(4) — UNDUE INFLUENCE

loaned and given considerable more money FIDUCIARY RELATION-EVIDENCE.

to her son Edward than to the other chilEvidence keld to show such fiduciary rela- | dren; that she had given her daughter Nantionship between devisee and testatrix, and such nie B. Gum money for the education of said advantage to the devisee, as to make a prima daughter's son and to start him in business, facie case of undue influence.

(Ed. Note. For other cases, see Wills, Cent. and not having so favored her other children Dig. § 428; Dec. Dig. Om 166(4).]

or grandchild, and desiring them to share 3. WILLS Omw 163(4) - UNDUE INFLUENCE equally in her estate, she charged against FIDUCIARY RELATION - EVIDENCE-BURDEN her daughter Ethel C. Gum the sum of $500, OF PROOF Though contestant of a will made out a

with interest at 6 per cent. from the date of prima facie case of undue influence by showing the execution of the will, against her son

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Edward L. the sum of $500 with interest at, and weakness incident to old age; that she the same rate from the same time, and had been confined to her bed with a fatal against her daughter Nannie B. Gum the malady from which she had been suffering amount of money the testatrix had paid and for ten years and was not of sound mind, might thereafter pay on a policy of Insur- and was unable to comprehend the terms ance in the Illinois Life Insurance Com- and provisions of the will and was mentally pany upon the life of the daughter's son, Per- incapable of making a just and valid dispocy E. Gum, which policy she directed should sition of her property. The bill also chargbe transferred to the said daughter Nannie es the will was wholly the product of the B. Gum, as beneficiary, upon the books of son Thomas P. Reep and was not the will the company.

None of the advancements of the testatrix; that said son was a praccharged were to be deducted from the per- ticing lawyer; that he had for a long time sonal estate, but were to be paid out of the been unfriendly to complainant and his proceeds of the sale of the testatrix's land brother Edward; that for improper and when sold, in accordance with the directions fraudulent purposes said Thomas P. took adin the will. The will directed the real es vantage of the ailing and mental condition tate of testatrix should not be sold or dis- of his mother, prepared the instrument purposed of until after the death of her hus- porting to be her will agreeable to his own band, but until that time it should be held wishes and desires, procured the witnesses by the executor in trust and managed and to it, and unduly influenced the testatrix to controlled by him, the rents, income, and execute the same; that he was present at profits therefrom collected by him, and after the time of its execution, which he control. the payment of the taxes, repairs, insurance, led and managed; that a confidential relaand all other expenses, including his costs tion existed between Thomas P. and the tesas trustee, the net amount was directed to tatrix, because of which she was, at the be paid, yearly, one-third to the husband as time of the execution of the instrument, unlong as he lived, and the balance divided der improper restraint and undue influence equally among the testatrix's children and of said Thomas P., who procured the execugrandchild, Ely Reep. Within one year aft- tion of the instrument as the will of Anna er the death of the husband the executor B. Reep, and alleges the same was not her was directed to sell the real estate at pub- will but was the will of her son Thomas P. lic sale and was authorized to execute deeds Reep. of conveyance to the purchasers thereof, and Thomas P. Reep answered the bill, indithe proceeds, after the payment of the costs, vidually and as executor. Martha A. Clark, together with the advancements charged a daughter, filed her separate answer, and against the testatrix's children, were to be the guardian ad litem for the grandchild, divided equally among her children and the who was a minor, filed an answer. All of said grandchild, except that the share of the other defendants were defaulted. The the daughter Ethel C. Gum was to be held

answers of Thomas P. Reep and Martha A. in trust by the executor, loaned on good se- Clark denied the allegations of the bill that curity and the net income therefrom paid to the testatrix was not of sound mind and said daughter Ethel so long as she was the memory and that the will was procured wife of Chester Gum; that upon his death, through the undue influence of the son if the daughter was then living, or upon her Thomas P. and alleged it was the will of the divorce from him and marriage to another, testatrix. the executor was given authority to pay the Upon replications filed, issues were made daughter the principal sum or such part up and submitted to the jury whether the thereof as he deemed necessary and proper writing purporting to be the last will and for her needs and well being; that, if any testament of Anna B. Reep was her last of such principal sum remained unpaid to will, whether at the time of its execution her at her death, it was to be paid to the she was of sound mind and memory, and heirs of her body surviving her, and in case whether she was unduly influenced by Thomshe left no such heirs it was to be divided as P. Reep to make said will. A trial was among the testatrix's heirs then living, in had by jury and a verdict returned finding accordance with the statutes of descent. the instrument purporting to be the last The will named the testatrix's son Thomas will and testament of Anna B. Reep was not P. Reep as executor, who was also given her last will and testament. The verdict trust powers, and revoked all wills thereto- further recited the jury found that the tesfore made by her. It was witnessed by tatrix was of sound mind and memory, but Harry Schirding, James H. Gum, Hye Dorn, that she was unduly influenced by Thomas and Lizzie Luken. The will was admitted P. Reep to make the will. The chancellor ento probate in March, 1915.

tered a decree in accordance with the verThe bill in this case to contest the will dict of the jury, finding the instrument offer was filed by the daughter Ethel C. Gum in ed in evidence as the last will and testament September, 1915. It charges that at the time of Anna B. Reep was not her will, and setof the execution of the will the testatrix ting the same aside and the probate thereof.

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