*1 Cutrer, The Estate Of Of Charlotte Guardian Minor, Cutrer, Cutrer, A John Clark V. Of And The National Bank Commerce Of Jr. Antonio, Trustee San No. A-7889. Decided Rehearing (345 S. overruled W. Series April May 10, 513)
Lang, Byrd, Cross, Oppenheimer Stanley Ladon & and D. Rosenberg, Antonio, petitioner. San for Cox, Sohn, Schweppe, Shweppe
Stahl and & & Allison Pat- Smith, terson Antonio, respondent. & all of San opinion MR. JUSTICE WALKER delivered the of the Court. principal question The to be decided case is this whether Jeffrey Cutrer; Hermann child of John Clark Cu- trer, is body” one the “children” or “heirs of the of John meaning Clark Cutrer within the of those terms as used in three instruments. Cook, daughter Stella Cook, of F. W. was first married to John Wessels, 1932 she married Dr. Andrew but marriage this terminated 1950 and she now the wife Dr. Ferdinand Two Herff. children were born her to first mar- riage: Cutrer, John Clark 18, 1921, who was born December Cutrer, and Stella who is now Meyer. wife John Edward Steussy John Clark Cutrer married Barbara Lucille on June 10, 1945, they child, Jr., one had John C. Cutrer. who was May They born 1947. were divorced and John Clark Cutrer married years Charlotte about five Wessels later.
latter, Wessels, who is not related to Dr. Andrew had one child marriage. child, born of a former That Wes- sels, 1, 1945, adopted by born on was November and was John May Clark Cutrer Trusts
The Three No, Cook trust, Stella Trust created 53: This which 29, 1937, governed Wessels on December de- terms she Under its the settlor on date. posited as trus- $5,000.00 of Commerce National Bank with the and added tee income be accumulated and directed that twenty- age principal until reached John Clark Cutrer accruing should stipulated all thereafter five. It was income monthly installments, and that paid Clark Cutrer in John my monthy payments until death “such shall continue son, Cutrer, Trust terminate time this shall at which children, share share and shall descend to child leaving alike; John Clark die but should the said sister, children, in his pass and vest then this trust estate shall children; Cutrer, surviving or her child Stella Cook *3 predeceases brother Cutrer her the event the said Stella Cook to paid over issue, this be leaves no then trust estate shall and City of San in Bexar Episcopal some Church of the Antonio County, Texas, by The trust to the Trustee herein.” be selected expressly irrevocable. was made by
Trust No. 79: This Dr. Andrew B. was created 6, 1941, May on and the trust instrument is identical Wessels covering except respects all the one Trust No. 53 with deposited by $6,000.00 the settlor with the National Bank of Commerce as trustee. placed $10,000.00
Trust No. 173: 1923 F. W. Cook Company the San Antonio Loan to be administered & Trust September 23, 1946, and Mrs. On trust. Cutrer estate, Meyer, of who were the beneficial owners the trust Stella joined by Wessels, Stella C. Andrew B. Wessels and John Mrs. Meyer, stipulating “Date Edward January 1, 1960, providing of Final Disbursement” means and by property to that the trust delivered the trustee be Paragraphs beneficiaries entitled thereto on date. and this instrument are as follows: equitable of said Trust Estate are “11th: owners belongs Cutrer, follows: one-half thereof to John and the belongs Meyer. remaining one-half thereof Stella Cutrer before the ‘Date of Final Should John die Disburse- Cutrer ment,’ portion remaining Trust Estate undis- body, belong thereafter heirs of his and tributed shall by body, not be heirs of his then hk snould he survived portion belong Meyer. shall Cutrer Stella Stella Should Disbursement,’ Meyer Cutrer die before the ‘Date of Final portion remaining her of the Trust Estate undistributed belong body, shall thereafter to the heirs of her and should by any body, por- she not be survived of her then her heirs belong tion shall to John “12th: Should both John Cutrer Stella
Meyer Estate, die before the disbursement of the Trust body should neither be survived of either heirs them, equitable then the owners Trust Estate shall Wessels, be Stella Cook living, and should she not be then equitable owners the Trust Estate heirs shall of F. W. Cook.”
The National Bank Commerce was later substituted for the San Company Antonio Loan & Trust as trustee of Trust No. 173. John May 7, Clark Cutrer died months Several after his present death the suit was Charlotte instituted Cutrer, guardian Cutrer, petitioner, against Cutrer, Jr., John C. respondent, and the National Bank of Com- merce, trustee, to establish a claim to an undivided one-half interest Trusts Nos. and an undivided one-fourth interest in Trust No. 173. The trustee answered awith bill of interpleader and tendered the trust assets to the court. After a trial jury, the court judgment deny- without a was entered ing petitioner’s claims, and the Appeals Court of Civil af- judgment firmed. 2d 599. We affirm the of the Court *4 Appeals. of Civil jurisdictions adoption where the require not statutes do approach, generally different it is adopted held that an child property conveyed not entitled to or devised to the “children” adoptive parent contrary the by unless a intent is disclosed language
additional or Huxley Security circumstances. See v. Co., Trust 206, 679; 27 Del. Ch. 33 Green, A. 2d Peck v. 266 Ala. 321, 169; 96 Chapple’s Estate, So. 2d In re 246, 338 Mich. 61 37; N. W. 2d Restatement of of Property 287; the Law 43 § 705, Mich. L. always prevailed Rev. 901. This rule Texas, has in respect at least with to instruments which became effective be adoption fore the 1931 Murphy Slaton, statute was v. enacted. 35, 154 588; Tex. App. 259, Cochran, 273 Cochran S.W. v. 43 Tex. (no Civ. writ). According 95 731 S.W. to the authors Restatement, of the the presumption rationale of the is that “historically, the anyone word ‘children’ did except not include
170 body designated parent. legal method for
issue of
adoption
of the
No
the
Consequently
question
as
children existed.
the
to include
whether
the term ‘children’
be construed
should
historically
adopted
not
This
derived
children could
be raised.
continues, except
upon
restriction
the
the inclusiveness of
term
‘contrary
conveyor
when a
intent of
from addition-
the
is found
justifica-
language
al
finds
or
This continuance
circumstances.’
normally
conveyor
not
tion in
fact
the
does
the obvious
by
designated parent
power,
adopting
desire the
person
have
subject
may choose,
appoint
matter
he
in
effect
conveyance
person.”
to such
question
Murphy
deci-
Petitioner
not
and Cochran
does
out,
con-
points
however,
sions.
there
She
courts were
statute,
struing
adoption
light
1850
instruments
legal
nothing
adopted
which did
more
make an
child the
than
1925;
43,
adopter.
heir of
See
Tex.
Stat.
Article
Rev. Civ.
3,
Knox,
Texas,
474;
p.
Gammel’s
v.
67
Laws
Eckford
Vol.
200,
372;
Harle,
214,
Tex.
109
204
S.W.
Harle v.
Tex.
S.W.
317,
1261; Taylor
Deseve,
246,
A.L.R.
81 Tex.
S.W.
1008;
Yturria,
220,
State ex rel Walton v.
Tex.
315,
among
provided,
other
Where
or his estate was
a
adopted
provisions
child
under the
of the
all of
statute had
rights
adoptive
of a natural child. The
father could
re
be
by
quired
support
the district court to
such child in accordance
provisions
with the
Goldsmith,
of Article 4639a.1 Ex Parte
Tex.
A child adopter’s after the execution of the will pretermitted was held to be a child and entitled to inherit under terms of Articles 8292 and Tex. Rev. 1925.* Civ. Stat. Spaulding Melch, v. App., (wr. ref.) ; Tex. Civ. 2d 639 S.W. Bell, Bell v. App., (wr. n.r.e.). Tex. Civ. 2d 466 ref. opinion quite clear, the Hoch case however, made it persons as to all adoptive other than the parents, adopted child’s status was the same as it would have if been act adoption had occurred.
There is saying no basis then for the status conferred requires the 1931 adopted Act regarded that an child be a natural adopter purpose child of the construing for the in struments persons. affirmatively third It does appear that either parties the scrivener or was fami liar with the written, terms of the statute as but the in undoubtedly prepared by struments competent legal were a given any theory draftsman. If the weight statute tois be on the presumed knowledge law, however, it must be as parties sumed that application knew of its limited and were also familiar with the decided cases. When the trust instruments executed, were it adopted had been held in this state “an heir is not person adopting him, in fact the child of the and a devise person to the child or children of a named could not be person.” construed devise to the heir of such Cochran, supra. Cochran v. This Court had also said “the ordinary signification of child a male or female descendant degree.” Harle, supra. in the first Harle le- When entire 1Except as otherwise indicated all are referred to statutes the article they appear number under which Vernon’s Annotated Texas Civil Statutes. *[Now § 67]. V. A. T. S. Probate Code
gal setting considered, general of construc- think the rule is we executed applied to tion mentioned above must be instruments in while the 1931 statute was effect. convincing evi contain rather
The instruments themselves adopted child parties did not intend to include dence the designated in his child or of John Clark Cutrer the class as provide that if he should die children. Trusts Nos. 53 and 79 in leaving children, pass and vest the trust estate shall surviving It child or children. is then Stella Cook Cutrer or her pre stipulated Cook Cutrer that “in the event the said Stella issue," her and leaves no trust shall deceases brother by paid the trustee. The words “child over to a church selected settlors, interchangeably were thus used ren” and “issue” clearly relationship. and the latter term connotes blood See 390; Rodger Estate, v. Mil 77 A. 2d re Howlett’s Pa. 654; Dockery, ler, App. 43 Ohio 182 N.E. Everett 125, 33 So. 2d Miss. settlor, conveyor, or testator are the children of the
Where property pass, designated will there the class to whom authority presuming an intention to include within adopted. designation person See theretofore or thereafter e there- Property Restatement of the Law of and Comment §287 however, appear, under. The words “child” or “children” do not governing in the 1946 instrument Trust No. 173. Instead parties in John Clark Cutrer died be- declared that the event disbursement, of the trust estate fore the date of final his share belong body.” to the “heirs of his Here the intention to quoted adopted quite plain, ex- exclude children is because only ordinarily pression embraces lineal blood descendants of Property designated person. See Restatement the Law g 306 and Comment § thereunder. adopted
The 1931 statute did not make chidren heirs of the body adopter, anything or issue of the and we do not find indicating an intention to a child include instruments by John Clark Petitioner our attention to the directs provision property shall “descend” to the child or death, Clark Cutrer at his and the reference children by John “my Dr. Trust 79 to John Clark Cutrer as Wessels No. pass parties expect property son.” The did descent children, it Cutrer and we think from John Clark the word “descend” was used the same sense clear “paid appearing over” later the same “pass to and vest” and property an intention does not evidence sentence. It might legal belong persons who should to the constitute the at his The trust heirs death. apparently copied from the one Dr. Wessels may
prepared wife, for his account for use this well *7 be, “my may expression son.” However that John Clark of the by Wessels, adopted Dr. that the Cutrer was never and the fact stepson settlor referred to as a son does not indicate that adopted by latter in he intended for children the to share the trust estate. nothing just- surrounding
There
in the
circumstances to
ify
adopted
an inference
in-
that
children were intended to be
designated
cluded within the
classes. John Clark Cutrer was
years
age
1937,
sixteen
of
when Trust No. 53 was created in
years
twenty
old when Trust No.
was created in 1941.
He married in
and the
which
controls the dis-
position
following
of
year.
Trust No. 173
the
was executed
His
first child
born in
was
1947. The record
that
does
show
incapable
having
either he or his sister was
of
children or had
contemplated
adoption
the
appear
of a child. It does not
question
adoption
any
the
of
parties,
ever occurred to
of the
or
they
of
adopted
member
their families had
a child
prior to the execution of the
agree
instruments.
We
Appeals
the Court of
parties
Civil
the intention of the
disclosed
light
several instruments
in
considered
of
surrounding
the circumstances
upon
their
was
execution
property
the death
John
Clark Cutrer
held
interests
pass
in trust
him
to and
in
should
vest
his natural children.
says
contingent
Petitioner also
a
that since
remainder
involved,
right
adopted
child should be determined
adoption
the 1951
statute which was in effect when the remain-
der vested at the death of
support
John Clark Cutrer. In
of this
Breckinridge
contention
Trustee,
(Ky.
she cites
v. Skillman’s
1960),
726;
Tice,
(Ky. 1959),
2d
Edmands v.
324 S.W.
491;
Weed, (Mo.
1958),
and Commerce
Sup.
Trust Co. v.
contrary
codicil directed that children of sons if them. should share in her estate the same extent born to Murphy adopted each a child Two B. H. Slaton, Myrtle adopted John after their death. had father’s who present adoption died before our Slaton Fairy Olmstead, adoptive mother of statute was enacted. Murphy Olmstead, party de- Earl to the case which we meaning petitioner’s in 1954. If as to the and effect cided views sound, rights present 46a in Article situation were grandchildren have the two would not been Murphy same. Earl been entitled to Olmstead have joint adoptive in the mother interest land devised to his her, provided and mutual will he survived but O. Slaton any part property hand at H. Mur- could not take B. phy’s adoptive had died before death because his mother held, however, adoption in 1951. It was statute was amended part property that John 0. was entitled Slaton *8 death, he Murphy’s B. H. that would share owned at time of Murphy property under the in the Annie individual E. express provisions of the 1950 in codicil accordance with the any codicil, apply of law to other and “the same rule will that Murphy or or descendants adopted children of the ‘child any of child or children’.”
Entirely case, opinion Murphy it is our aside from petitioner principle to in rule seeks is unsound ex invoke something cept to show that the settlor intended where there is by the in ef determined law for the members of class to be are not concerned here feet at the death of the life tenant. We Jeffrey his right to inherit from with the an interest in the adoptive father. Whether he is entitled to upon settlors, depends intention of and trust estates intention it existed the time the trusts were created their at Vaughn Vaughn, is 161 Texas determinative. See 793; Tex. Shepperd, Foundation v. 2d William Buchanan S.W. (reversed agree App., 283 2d 325 and remanded Civ. S.W. 553); 169b, ment, Tex. S. C. J. Trusts § p. 43; Adoption p. 1 Am. of Children 664. It would § Jur. strange by looking quite to ascertain that intention to the be provisions of after the trust changes instruments be statutes enacted considering public policy re- came effective or thereby. fleeted trial court erred in ex-
Petitioner further contends prof- eluding testimony she Part of the certain which offered. testimony fered to that John Clark Cutrer felt closer tends show marriage want- to to the than child born his first and type to ed the former share his estate. Evidence of this determining father’s intention adoptive assistance not adopted, petitioner born and before either child was prejudiced its exclusion. permitted so,
If to Herff have testified that do Mrs. body” using “child or children” and “heirs of terms any adopted, she child natural or and that intended include such re Dr. Wessels stated her was his intention with testimony spect to Trust No. Petitioner this insists ambiguous. are admissible because the trust instruments Where as here the court is concerned with the construction of a written right reformation, other rescission or equitable issue, parties relief is not in the intention of the must language be from the determined the instrument surrounding par circumstances its execution. Utterances of the tending ties to show their association and external words objects may part surrounding be of the considered as circum stances, subjective dealing but statements intent or will subject specific ordinarily document are not The reason for admissible. this rule of exclusion is that “when voluntarily single document, transaction has been embodied in expression subject no other of intent will on the same can jural given Wigmore recognizes only Even Professor effect.” exceptions general exclusion, three narrow to the rule of case exceptions. Wig- this does fall within See Evidence, IX, p. more ed. seq. 3rd 1940. Yol. 2471 et 229. § opinion refusing In our the trial court did not err in to con *9 testimony and sider declarations as what Herff Dr. to Mrs. had mind Wessels when the trusts were created. judgment Appeals of the Court of is Civil affirmed. sitting. JUSTICE
ASSOCIATE STEAKLEY not GRIFFIN, joined by HAMILTON, MR. JUSTICE JUSTICE dissenting. agree
I am holding Jeffrey unable with the that part Wessels is not entitled of the three trust estates. it, I provision vesting As see the of the trust on the contingent of John death Clark leaves a Cutrer “to remainder 176 children,
John Cutrer’s share and share alike.” Clark child or 583, 579, Koonsman, v. 154 Tex. 2d Guilliams 279 S.W. vesting property 57 2d This a in exist- A.L.R. of of Cutrer in certain ence at the time the death of John Clark a people, of at the class to wit: “child or children” existence composing of are to time his death. The members that class of John Clark be determined as the date the death said Breckinridge Trustee, 2d v. Skillman’s 330 S.W. (Ct. Tice, (Ct. Ky., 1959) App., v. 2d Edmands Weed, Ky., Company App. 1959); 318 S.W. Commerce Trust (Sup. Mo., 1958). Prior to death none 2d Ct. any right enjoyment possession or of the trust class had created, property. At the time three trusts were John Clark no If those who take Cutrer had children. it is construed as of the date of the execution the trust were determined no John take for then child or children of Clark Cutrer could he no on such the reason that had date. applicable I think to these trusts as same law containing language. applicable In 44 would be to will the same gift 796, 228, Tex. Jur. it is stated that a to “heirs” of A should § primarily “taken to mean that takers are those who descriptive correspond term at of A’s the time death.” support proposition. authorities cited in of this See body,” in the I think that the words “heirs as used in- 23, 1946, modifying September strument Trust No. 173 body referring to of John Clark the heirs of the Cutrer should to mean child or children. Federal Land Bank of be construed Little, Houston v. Texas 107 S.W. and authori- cited. ties therein (46a, died after the 1951 amendment 9, V.A.T.C.S.) my opinion, adoption to the statute. there
§ Her- is no doubt amendment includes he take his share. mann Wessels as a child and should therefore history adoption study legislative will A statutes Legislature consistently sought to has make the show that position child, children, occupy exactly m same actually child, children, adop- family to the as the born language Act of the 1951 makes parents, and that tive adopted child the natural child. distinction between judgments both courts and ren- I reverse the below *10 judgment as child allowing Hermann Cutrer to take der of John