Jones v. Jones ( 1939 )

OPINION

By HORNBECK, PJ.

This is an appeal from an order of the Probate Court refusing to set aside an appointment of a guardian for the appellant, Clarence M. Jones.

In 1936 Mary M. Jones, wife of Clarence M. Jones, filed an application with the Probate Court of Franklin County for the appointment of a guardian for appellant and thereafter on October 2, 1936, a guardian was. appointed and qualified and was so acting at the time of the proceedings under consideration .on this appeal.

In 1935 in Probate Court, Franklin County, the appellant designated Norman E. Knisely and Ruth Knisely (now Ruth Knisely Kessler) his heirs at law and their residence was given as Franklin County where they resided at the time of the application for appointment of a guardian. The designation of said heirs at law was made under §10507-4, GC, and a full record of the proceedings was set forth in the Probate Court as provided in said section.

In the guardianship proceedings, neither Norman Knisely nor Ruth Knisely Kessler was notified of the time and place of the hearing on the application for appointment. It appears that, although the appellant was the husband of Mary M. Jones, the applicant for appointment of a guardian for him, she had no actual knowledge of his designation of heirs at law.

In the fall of 1938 appellant applied for an order of the Probate Court terminating the guardianship of the person and estate of appellant on the ground that the appointment was improperly made. This application was overruled and from this action of the Probate Court this appeal is prosecuted.

Four grounds of error are assigned, all of which may be disposed of upon consideration of the general question whether or not the appointment of a guardian for appellant was invalid.

It is stipulated that the designated heirs at law were not notified of the time and place of the hearing on the application for the appointment of a guardian of appellant. It is the claim of appellant that by virtue of his designation of heirs at law, said designees were in the status of his “known next of kin” and entitled to notice under §10507-4, GC. Appellees deny that the designees were “next of kin” of appellant and urge further that if they were such next of kin they were not “known next of kin” and that a failure to notify them was not a violation of the terms of §10507-4 GC, and finally that the appellant has not the capacity to maintain this appeal.

A determination of the one claim asserted by the appellant will dispose of the controlling question and we will, therefore, not consider the other two propositions advanced by the appellees.

The appeal requires particular consideration of two Sections of the General Code, 10507-4 and 10503-12. §10507-4, GC, relating to notice required upon the application for appointment 'of a guardian, in so far as germane to our question provides,

“No guardian of the person, or of the estate, or of both, shall be appointed until at least three days after the Probate .Court has caused written notice, setting forth the time and place of the hearing to be served upon the following persons:

(a) * * *

(b) In the appointment of the guardian of an incompetent, * * *.

(1) * * *

(2) Upon the known next of kin of such person for whom appointment is sought, known to reside in the County in which application is made.”

Sec. 10503-12, GC provides for the designation of an heir at law,

“A person of sound mind and memory may appear before the Probate Judge of his County, and * * * file a written declaration, * * * declaring that, ■* * * he * * * did designate and appoint another, * * *, to stand toward him in the relationship of an heir at law in the event of his or her death. 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 thus designated will stand in the same relation, for all purposes, to such declarant as he or she 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; * *

Appellant asserts that “next of kin” does not mean blood relatives but means those who would take under the Statutes of Descent and Distribution and relies on the emphasized portion of §10503-12, GC, and cites Steele, Admr. v Kurtz, 28 Oh St 191; Armstrong v Grandin, 39 Oh St 368; Godfrey et v Epple et, 100 Oh St 447, and Cochrel v Robison, 113 Oh St 526. Appellees insist that “next of kin” means the nearest in kin or the nearest of blood and cites 29 Cyc 1044; Clayton v Drake. 17 Oh St 367; Theobald, et v Fugman, 64 Oh St 473.

We are of opinion that the true construction of “next of kin” as found in §10507-4, GC, is not exactly as contended by either of the parties. The effect of a designation under §10503-12, GC, is specifically set out in the language of the section, namely, that the designee shall stand in the relation of an “heir at law in the event of his or her death.” If the added language, “in the event of his or her death” was not in the section the designation of an heir at law would indicate that this status would only arise upon the death of the declarer because one has no heirs while he lives. But the statute is made more definite when the words “in the event of his or her death” are added. The relationship created only attends when and if the declarer dies.

But it is asserted that the section further provides that “Thenceforward the person thus designated will stand in the same relation, for all purposes, to such declarant as he or she could, if a child born in lawful wedlock”. The section is a part of the chapter of the Code devoted to descent and distribution which relates to the devolution of one's real and personal property by the law at his death. The language following “Thenceforward” means that for all purposes of descent and distribution the designee shall upon the death of the declarant stand in the same relation as a child born in lawful wedlock. §10507-4 does not, during the lifetime of the parties to the declaration, create a status of parent and child. This section is to be distinguished from §10512-19, GC, which defines the effect of adoption on the parties thereto. This latter section does create the status of parent and child during the lifetime of both, the adopter and adopted, together with the mutual obligations and responsibilities attendant on that relationship. In probability an adopted child would answer the description of “next of kin” as employed in §10507-4, •(b)-2, GC.

If “for all purposes” as employed in §10507-4, GC, contemplated that the relationship of parent and child attended from the date of the designation of an heir at law then the declarant would be chargeable with the obligation of care, education and support of the designees and in certain situations, liable in damages for their torts.

In Steele, Admr. v Kurtz, supra, it was held that in an action under the statute to recover damages for wrongful death the surviving husband of the intestate, who left nc children, was within the meaning of the section under which the action was instituted the “next of kin” of the deceased. Godfrey et v Epple et, supra, also holds that “nearest of kin” as employed in the will thereunder construction included such as would inherit under the statute of Descent and Distribution. Armstrong v Grandin, supra, is of the same general tenor and effect as the other cases cited. All of these adjudications are effective as supporting the claim that “next of kin” may not always be restricted to blood relatives. They would likewise be cogent to support the theory that the designated “heirs at law” of appellant were his “next of kin” if appellant was dead. Cochrel v Robison, supra, defined the rights of a designated heir at law upon the death of the declarant and is of no value in fixing the status of the parties to the declaration during their lifetime.

The designated heirs at law of. appellant were not at the time of the hearing of the application of the guardianship proceedings “next of kin of the person for whom appointment of guardian was sought” and it was not necessary that they be served with written notice of the time and place of hearing of the application for the appointment of a guardian.

The judgment will be affirmed.

GEIGER and BARNES, JJ., concur. Decided Oct. 30, 1939.