[2] Such simple, sweeping language would seem sufficient per se to invest the adopted child with all the rights and privileges of the natural child. Lest there be any doubt in the minds of the superstrict as to the legal sense and scope of this last clause of section 8029, General Code, the Legislature further enacted to like effect section 8030, General Code, which reads in part: The self-evident purpose of this divesting provision of section 8030, General Code, is that, if there be a failure of issue of the adopted child, then the new line of descent provided for by the adoption statutes ceases, and the property reverts back to the blood of the ancestor; but as long as there was issue of the child, such issue should take as "the child and legal heir." Again, this divesting provision is an exception grafted on to the statute. The statute being remedial, natural "Such child shall be the child and legal heir of the person so adopting him or her, entitled to all the rights and privileges and subject to all the obligations of a child of such person begot-ly the exception should be strictly, but rea ten in lawful wedlock." sonably, construed, and must be governed by It will be noted that the statute provides that: (1) An adopted child "shall be the child and legal heir of the person so adopting"; and (2) an adopted child shall have "all the rights and privileges * of a child of 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 and privileges, but there is no warrant for certainty, surely so far there can be no doubt that the foregoing statutes fully and effectively invest the adopted child with all the rights and privileges of a natural child begotten in lawful wedlock. thus cutting down or cutting out the word "all," and the courts should apply the language in the broad and humane spirit in which it was written into the law and policy of this state. been discussed in Ransom, Adm'r, v. New The humanitarian policy of these laws has [3] But it is cogently contended that this investment of the adopted child with all the rights and privileges of a natural child born 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 clause of said section 8030, General Code, which reads: We are asked to interpret this provision. Now, the right to judically interpret a duly enacted statute is based upon some apparent uncertainty of meaning, some apparent ambiguity of terms, some apparent conflict of provision. If a sentence of a statute can be set forth in simple speech, the same has been done in the provision last quoted. To interpret what is already plain is not interpretation, but legislation, no matter by what name it may be called. Analyze this divesting sentence. The conditions precedent to the application of this last provision are as follows: (1) The adopted child's decease must be subsequent to the decease of the adopting parents; (2) the adopted child must have no isThere is a total failure of these two conditions precedent under the conceded facts of this case. First, the adopted child's decease was prior to the death of the adopting parents, and, second, she left surviving her and surviving the adopting parents issue in E., her daughter, who subsequently married F., who was made sole devisee by the will of E., the devise including the property of the ancestors, A. and B. sue. the judgment below, and the same is thereIn this view of the case, we find no error in fore affirmed. Judgment affirmed. The term "final action" as used in section 1465-90, Gen. Code (as added by Act Feb. 26, 1913 [103 Ohio Laws, p. 88, § 43]) has relation to the question whether or not the Industrial Commission has jurisdiction to allow compensation to a claimant out of the state insurance fund, and under the provisions of that section, as a condition precedent to the right of claimant to file his appeal in the court of common pleas, there must be a denial of his right to participate at all in such fund, based upon one of the jurisdictional matters enumerated in the section. 2. MASTER AND SERVANT 417(12), New, vol. 24 Key-No. Series-WORKMEN'S COMPENSATION ACT-PROCEEDINGS-APPEAL. Where an award has been made to a claimant upon his application to the Industrial Commission, its jurisdiction under the provisions of section 1465-86, Gen. Code (as added Act Feb. 26, 1913 [103 Ohio Laws, p. 88, § 39]), is con tinuing, and it may make such modification or change with respect to the award as in its opinion may be justified, and the provisions of section 1465-90, Gen. Code, providing for an appeal to the court of common pleas, are not applicable. Certified by Court of Appeals, County. Allen Proceedings under the Workmen's Compensation Act by Newton Snyder, to obtain compensation for personal injuries, opposed by the Lima Locomotive Corporation, employer. From a decision denying further compensation, the claimant appeals to the court of common pleas and files his petition. The Court of Appeals reversed a judgment for plaintiff, and certified the record to the Supreme Court. Affirmed. On the 18th day of January, 1913, the plaintiff in error, Newton Snyder, was injured in the course of his employment while in the employ of the Lima Locomotive Corporation, an employer who had paid into the state insurance fund the premiums required by the act of May 31, 1911 (102 Ohio Laws, 524). Plaintiff in error filed an application with the State Liability Board of Awards, for compensation out of the state insurance fund for his injuries, and on the 14th day of May, 1913, the board, after due notice to him of the time and place for the hearing of the application, awarded him compensation for 151/7 weeks' disability, beginning at the date of his injury exclusive of the first week, at the rate of $12 per week, amounting to $181.71, and also the sum of $18 for medical service. On May 26, 1913, the board made a further award in the sum of $19 for hospital service rendered to plaintiff in error. The amount awarded to plaintiff in error was paid to and accepted by him, and the amounts awarded for medical and hospital services were paid as authorized and directed by him in his application. On August 20, 1913, a letter was written to the board by the attorney of plaintiff in error, asking for information in reference to the claim, and on August 26, 1913, this attorney was notified by the board that it had acted in the matter on August 11, 1913, that it had considered that no further compensation was due, and that the case was closed. on the ground that the court was without jurisdiction to hear the case. This motion was overruled, as were similar motions made at the close of plaintiff's evidence and at the close of all the evidence in the case. The Jury returned a verdict in favor of plaintiff in error, finding and fixing the weekly indemnity and compensation at $10. A mo tion for a new trial was overruled, judgment was rendered on the verdict, and error prosecuted to the Court of Appeals by the Industrial Commission. That court reversed the judgment of the court of common pleas, upon the ground that the court of common pleas did not have jurisdiction of the subject of the action, and, further, finding their judgment in conflict with the judganother Court of Appeals of this state, the ment pronounced upon the same question by judges certified the record of the case to this court for review and final determina tion. "The board shall have full power and authority to hear and determine all questions within its final. Provided, however, in case the final acjurisdiction, and its decision thereon shall be tion of such board denies the right of the claimant to participate at all in such fund on the ground that the injury was self-inflicted or on the ground that the accident did not arise in the course of employment, or upon any other ground going to the basis of the claimant's right, then the claimant within thirty (30) days after the notice of the final action of such board may, by the county wherein the injury was inflicted, be filing his appeal in the common pleas court of entitled to a trial in the ordinary way, and be entitled to a jury if he demands it. In such a proceeding, the prosecuting attorney of the counsent the State Liability Board of Awards, and ty, without additional compensation, shall reprehe shall be notified by the clerk forthwith of the filing of such appeal. "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-error as in the ordinary civil cases.' course of his employment, there could be no denial of his right, and he was therefore permitted to participate in the fund. [1, 2] But it is urged that, when the board on August 11, 1913, held that no further compensation was due and the case was closed, that was the "final action" of the board within the meaning of the statute, and was a denial of the right to participate. Counsel do not specify the ground upon which this so-called final action was based. It could not have been upon the first ground, viz. that the injury was self-inflicted; nor upon the second, that the accident did not arise in the course of employment; nor upon any ground which went to the basis of the claimant's right-for instance, upon the ground that the complainant was not an employé of the employer at the time of the injury, or that he had brought an action for damages directly against the employer, and so on. It is true that so far as the record discloses the action taken by the board on August 11, 1913, was its latest action. But we do not think this can be said to be the "final action" of the board within the meaning of the statute. Counsel seem to have given no effect to the provisions of section 33 of the act of May 31, 1911, now section 1465-86, General Code, which reads: It is averred in the petition filed in the | employer had 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 day of August, 1913, absolutely rejected the claim of plaintiff without any right or authority so to do, and refused to make payment in compliance with the provisions of the law. The language used in the statute above quoted is not adopted by the pleader, nor are any of the grounds enumerated in the proviso set out in the petition. But for the purposes of this case the language used in the petition may be construed to mean that plaintiff has been denied the right to participate at all in the state insurance fund, and it may be assumed that facts sufficient to show jurisdiction in the court of common pleas are stated. But the question then arises whether the allegation to which we have referred was sustained by any evidence. It appears that the state liability board of awards did make an award to plaintiff in error in the sum of $181.71, which was paid to and accepted by him, and that there was also made an additional award for medical and hospital services. It is to be observed that the statute which confers the right of appeal does so upon condition that final action of the board denies the right of the claimant to participate at all in the fund, upon one of the grounds therein enumerated. This right of appeal proceeds upon the the ory that there has been a finding by the board that it is without jurisdiction to act in the matter. If the board should find that the injury complained of was self-inflicted, or that the injury did not arise in the course 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 under the instructions of the court, if a jury is demanded, shall determine the right of the claimant to participate in the fund. That is the first question to be determined by the court or jury. If it is determined adversely to the claimant, that is the end of the matter. If there is a finding in his favor, then the court or jury goes further and fixes the compensation within the limits and under the rules prescribed by law, and the judgment so obtained shall be paid out of the insurance fund. The court or jury, as we view it, would have no authority under the provisions of this statute to deal with the amount of compensation unless the ques- compensation for an injury received in the tion of the right of the complainant to participate in the fund was in issue. In the case under consideration this right could not be, and was not, denied claimant by the State Liability Board of Awards. The matter was "The power and jurisdiction of the board over each case shall be continuing, and it may from time to time make such modification or change with respect to former findings or orders with respect thereto, as, in its opinion, may be justified." made a finding favorable to the applicant and allowed the sum of $181.71, that was its "final action." True it subsequently found that no further compensation was due, but that did not prevent plaintiff in error from presenting an application for a rehearing of the matter, which, so far as the record discloses, has not been done. This case was certified to this court upon the ground that the judgment was in conflict with that pronounced in the case of Sam Police v. State Industrial Commission of Ohio, 23 Ohio Cir. Ct. R. (N. S.) 433. The facts in that case were wholly different. In the Police Case application was made for course of employment, viz. double hernia. The State Liability Board of Awards found affirmatively that the hernia from which claimant was suffering and for which he made claim for compensation did not result employment, the effect of which finding was | that the board was without jurisdiction to make an allowance as asked for, and therefore there was a denial of the right to participate in the fund upon the second ground enumerated in the proviso in section 146590. In the Police Case a nominal award was made by the board for something that was not asked for by the applicant. The Court of Appeals found as a fact that the board denied the right of the claimant to participate at all in the fund, on the ground that the ac cident did not arise in the course of employment, and held that an award of something of which applicant was at no time or in any manner a claimant could not defeat his right to appeal, dependent only upon the denial of the claim made. As we view the present case, plaintiff in error, in invoking the jurisdiction of the court of common pleas, sought to have that court review the amount allowed to him by the State Liability Board of Awards. His right to participate in the fund, as we have seen, had not been denied, and a denial of this right upon one or more of the grounds set out in the statute being a condition precedent to his right to appeal to the court of common pleas, that court was therefore without jurisdiction to act in the matter, and the Court of Appeals was correct in so finding. 1. WILLS 166(4)— UNDUE INFLUENCEFIDUCIARY RELATION. Where a fiduciary relation exists between testator and a devisee who receives a substantial benefit from the will, and the testator is the dependent and the devisee the dominant party, and the testator reposes trust and confidence in the devisee, as in the ordinary relation of attorney and client, and the will is written or its preparation procured by that beneficiary, proof of these facts establishes prima facie that the execution of the will was the result of undue influence exercised by that beneficiary, and, standing alone and undisputed by other proof, entitles contestants to a verdict. [Ed. Note.-For other cases, see Wills, Cent. Dig. 428; Dec. Dig. 166(4).] 2. WILLS 166(4) - UNDUE INFLUENCE FIDUCIARY RELATION-EVIDENCE. Evidence held to show such fiduciary relationship between devisee and testatrix, and such advantage to the devisee, as to make a prima facie case of undue influence. fiduciary relationship between testatrix and devisee who aided in preparing the will and redid not then have the burden of proving absence ceived undue advantage thereunder, the devisee of undue influence, but only of rebutting the prima facie case with some evidence. [Ed. Note.-For other cases, see Wills, Cent. Dig. 396; Dec. Dig. 163(4).] 4. WILLS 166(4) UNDUE INFLUENCE FIDUCIARY RELATION-EVIDENCE. Evidence showing that testatrix was in poor health and sometimes suffered severely, and her son, a lawyer, aided in drawing the will, and was substantially benefited by it, held to sustain finding that will was procured by undue influence. [Ed. Note. For other cases, see Wills, Cent. Dig. § 428; Dec. Dig. 166(4).] Appeal from Circuit Court, Menard Coun ty; Guy R. Williams, Judge. Will contest by Ethel C. Gum against Thomas P. Reep, named executor in the will of Anna B. Reep, and others. From a decree setting aside the will, defendants appeal. Affirmed. Smoot & Laning, of Petersburg, for appellants. Hardin W. Masters and Thomas D. Masters, both of Springfield, for appellee. FARMER, J. This is an appeal from a decree entered in a will contest case in which the will was set aside as not being the act and deed of the testatrix, Anna B. Reep, who died February 9, 1915, leaving the instrument contested purporting to be her last will and testament executed February 24, 1914. The testatrix left surviving her a husband, Eli Reep; also her children, Nannie B. Gum, Thomas P. Reep, Martha A. Clark, Alice Maud Batterton, Mary A. Gaddie, Ethel C. Gum, and Edward L. Reep; also Ely Reep, her granddaughter, the only child of a deceased son. Stripped of unnecessary verbiage, the will, after directing the payment of the debts and funeral expenses and the purchase of a marker for testatrix's grave at a cost not to exceed $300, directs that the remaining personal estate be converted into money by the executors; onethird of the proceeds to be paid to her husband and the balance divided equally among her children then living and the said grandchild, Ely Reep. The fourth clause of the will recites the testatrix had paid out more money for the education of her daughter Ethel (complainant in the bill to contest the will) than for her other children; that she had loaned and given considerable more money to her son Edward than to the other children; that she had given her daughter Nannie B. Gum money for the education of said daughter's son and to start him in business, and not having so favored her other children or grandchild, and desiring them to share equally in her estate, she charged against FIDUCIARY RELATION-EVIDENCE-BURDEN her daughter Ethel C. Gum the sum of $500, OF PROOF with interest at 6 per cent. from the date of Though contestant of a will made out a prima facie case of undue influence by showing the execution of the will, against her son [Ed. Note.-For other cases, see Wills, Cent. Dig. 428; Dec. Dig. 166(4).] 3. WILLS-163(4) UNDUE INFLUENCE For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes and weakness incident to old age; that she had been confined to her bed with a fatal malady from which she had been suffering for ten years and was not of sound mind, and was unable to comprehend the terms and provisions of the will and was mentally incapable of making a just and valid disposition of her property. The bill also charges the will was wholly the product of the son Thomas P. Reep and was not the will of the testatrix; that said son was a practicing lawyer; that he had for a long time been unfriendly to complainant and his brother Edward; that for improper and fraudulent purposes said Thomas P. took advantage of the ailing and mental condition of his mother, prepared the instrument purporting to be her will agreeable to his own wishes and desires, procured the witnesses to it, and unduly influenced the testatrix to execute the same; that he was present at the time of its execution, which he controlled and managed; that a confidential relation existed between Thomas P. and the testatrix, because of which she was, at the time of the execution of the instrument, under improper restraint and undue influence of said Thomas P., who procured the execution of the instrument as the will of Anna B. Reep, and alleges the same was not her will but was the will of her son Thomas P. Reep. Edward L. the sum of $500 with interest at the same rate from the same time, and against her daughter Nannie B. Gum the amount of money the testatrix had paid and might thereafter pay on a policy of insurance in the Illinois Life Insurance Company upon the life of the daughter's son, Percy E. Gum, which policy she directed should be transferred to the said daughter Nannie B. Gum, as beneficiary, upon the books of the company. None of the advancements charged were to be deducted from the personal estate, but were to be paid out of the proceeds of the sale of the testatrix's land when sold, in accordance with the directions in the will. The will directed the real estate of testatrix should not be sold or disposed of until after the death of her husband, but until that time it should be held by the executor in trust and managed and controlled by him, the rents, income, and profits therefrom collected by him, and after the payment of the taxes, repairs, insurance, and all other expenses, including his costs as trustee, the net amount was directed to be paid, yearly, one-third to the husband as long as he lived, and the balance divided equally among the testatrix's children and grandchild, Ely Reep. Within one year after the death of the husband the executor was directed to sell the real estate at public sale and was authorized to execute deeds of conveyance to the purchasers thereof, and the proceeds, after the payment of the costs, together with the advancements charged against the testatrix's children, were to be divided equally among her children and the said grandchild, except that the share of the daughter Ethel C. Gum was to be held in trust by the executor, loaned on good security and the net income therefrom paid to said daughter Ethel so long as she was the wife of Chester Gum; that upon his death, if the daughter was then living, or upon her divorce from him and marriage to another, 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 trust powers, and revoked all wills theretofore made by her. It was witnessed by Harry Schirding, James H. Gum, Hye Dorn, and Lizzie Luken. The will was admitted to probate in March, 1915. The bill in this case to contest the will was filed by the daughter Ethel C. Gum in September, 1915. It charges that at the time of the execution of the will the testatrix Thomas P. Reep answered the bill, individually and as executor. Martha A. Clark, a daughter, filed her separate answer, and the guardian ad litem for the grandchild, who was a minor, filed an answer. All of the other defendants were defaulted. The answers of Thomas P. Reep and Martha A. Clark denied the allegations of the bill that the testatrix was not of sound mind and memory and that the will was procured through the undue influence of the son Thomas P. and alleged it was the will of the testatrix. her last will and testament. The verdict further recited the jury found that the testatrix was of sound mind and memory, but that she was unduly influenced by Thomas P. Reep to make the will. The chancellor entered a decree in accordance with the verdict of the jury, finding the instrument offer. ed in evidence as the last will and testament of Anna B. Reep was not her will, and setting the same aside and the probate thereof. |