*1 opinion, appellee sion author this proximate the negligence to be a Anderson’s Allen, cited 154 Tex. review De Winne again injury, have cause the we cases, has S.W.2d and other and asserted we testimony. record whole ed power court, its had had to reverse Though a and remand the been considered. case pass so have reached the trial court could on the jurors, might members been may We, however, matter. deem jury, this not de conclusion from the different terminative issue. judgment for its substitute on jury. whether, based The test We cross-points have re-examined the on record, say we answers can whole their merits and of the view that remain weight overwhelming against are so jury’s contrary answers were not to so preponderance evidence of the overwhelming weight preponderance We manifestly clearly wrong. unjust or of the evidence as be clearly wrong. Con such a conclusion. are unable reach Tex. System, Biggers, tinental Inc. v. Bus Appellee’s rehearing motion for is over- ref., Civ.App., n. r. e. S.W.2d writ ruled. Appellee’s rehearing motion for over-

ruled. Motion Appellee’s Second Rehearing

Appellee his motion has second we reasserting position that his

rehearing, this and remanded

should have reversed motion him to file cause allow so MOORMAN, Appellant, Diaz Thomas jury’s asserting the answers new trial Mrs. acts Anderson’s which found two HUNNICUTT, al., R. J. Administrator et proximate causes of negligence Appellees. overwhelming against the collision were No. 10595. evidence. preponderance weight and right has that he have insists He Appeals of Civil Court of Texas. and that we should pass this trial court on Austin. appellate mat- review on the only exercise May 1959. Rule before case since tried ter effective. T.R.C.P., as amended became Rehearing July 1, Denied 1959. completely re-examined We have the con- unable to reach

question but are appellee. contended

clusion correctly points an inaccura out

Appellee rehearing. opinion motion for

cy on in our re it was on motion for there stated appellee first

hearing that for the remand should reverse and

contended pass the trial court to on to allow case appellee The brief of matter. and remanded reversed that the case be

ask on mat pass trial court to allow the However, brief a letter

ter. cause, submission of the Court, filed after also 290 See S.W.2d on submis response asked

R. C. Wilson, Douglass D. Hearne, Cofer Cofer, & of Austin, appellants for heirs law of Helen Mar Hunnicutt et al. Henry Taylor, Lee of San Antonio, for appellants Agatha et Gates al. Yarborough & Yarborough, Tom H. Da- vis, Wayne E. Thode, Austin, ap- pellee R. Hunnicutt, J. Administrator. Judge Carey Leggett, of Lavaca, Port appellees certain collateral heirs of H.. P. Hunnicutt. Herman and Jones, Herring & Jones Jones, Austin, appellees collateral

heirs of Bertha Hunnicutt. Cook, of Austin, appellees un- Jack known heirs of H. P. Hunnicutt and Bertha Hunnicutt.

GRAY, Justice. brought by suit was R. Hunni- J. cutt, Administrator the Estate of Helen Mar Deceased, to determine the right succession to possessed by her at of her death. principal question The first and presented is: Was adopted daughter of Hicklin P. Hunnicutt and his to assert that she was not deceased? both wife, Bertha M. of their of Hicklin P. and Bertha issue without parties died These Hunnicutt; further ad- separate each and the court wills by their marriage and *3 attempted judged and that the decreed Mar Helen property to devised of Helen Hunnicutt own Mar property in her possessed who Hicklin P. Hunnicutt M. Bertha right. pro- Hunnicutt was validated under the intes- March Helen Mar died * * *” visions of 46(b) Article At the issue. without tate, unmarried It was then property decreed that the consisted her estate her death question is be Art. distributed under property; that owned classes of three 2572, Vernon’s Ann.Civ.St. trial and the by will acquired right; that in her own her proceeded court to make distribution to acquired Hunnicutt, and that Bertha from claimants. Hunnicutt. Hicklin P. by will from claimants of parties to the suit and adoption. We will first notice the issue of Mar; kin of Helen are: property Brown) Helen Mar (Theodora Hunnicutt Hicklin Bertha, the kin of kin of was born 22, 1902, in Cuba August daughter of Frank Brown and wife Sylvia probate Diaz first in the Brown. The mother cause was tried died nonjury at Sometime thereafter Travis but before 1914 Theodora Brown Helen was came decreed that Mar to the it was United States trial to live with adopted daughter Hicklin P. and Hicklin P. and Plunni- Bertha formerly cutt. Frank Brown’s It was further decreed Hunnicutt. was Bertha Enos Moorman possessed by at her property her died 1932. Bertha that Hunnicutt was subject Except quoted administration his sister. be, death law, applications name, estate, to her heirs at distributed her guardianship and quoted, the letter claims to the later naming them. Other explanation is in the record for denied. were Theodora coming Brown to live with the appealed to the district cause Hunnicutts. jury a non trial was had. There it court and stipulated: Moorman, appears that Enos or Frank Brown, went to Cuba 1898 with the “ * * * following that issue Army United States and no of the separate first and from be tried should citizenship of Helen Mar pre- Hunnicutt is presented of the remainder issues sented. heirship suit: this Hicklin P. and Bertha Hunnicutt “as “ Mar Hunnicutt ‘Was next friends of Theodora Brown” filed purposes adopted daughter or for the their for her name to be is she to be action considered as of this Helen Mar changed ap- Hunnicutt. This were if she plication recites : Bertha P. and M. Hicklin positive estoppel they have no valida- That “(1) by reason attempted adoption existence or where- knowledge under the of the anof tion parents of Theodora provisions of 46b of said Article abouts validation ” secondary Brown, ?’ but believe Civil Statutes Revised mother dead and that her is evidence court: trial issue represents himself person who that * father supposed * her * to be and is kin the blood decreed “ state. in a distant estopped resides parents living supposed of said minor are father has “(2) That said they may dead, nor where be located voluntarily Brown given said Theodora your living, applicants if custody your peti- but that her care and into the secondary tioners, your peti- lieve from evidence willing is her have been to obtain that appointed guardians of able tioners be dead; mother of estate, Theo- said minor is person and that said Brown; originally name was present residing Brown dora supposed that the man who them. state; father resides in distant *4 Brown is Theodora “(3) That said supposed voluntarily said father has parental attention and care and without delivered minor into the care said and person guardian of her es- has no and custody your applicants of and will- is tate. ing your applicants guardians that be person her of and estate. That at the petitioners “(4) your That desire September Term, A.D.1916 of the Dis- appointed person of guardians be of trict County, Texas, Court of Travis Brown at the October said Theodora District, 26th the name of said Judicial County Court of Travis Term upon application your minor pe- County, Texas, being their desire titioners wish and and desire care, custody, maintenance assume the said changed minor to Helen Marr Brown, of said and education appear as will from the offi- and a minor being girl age she of the cial records of your Court. That said your petitioners years; be- fourteen applicants have not been able to learn care, ing provide able main- such any of the existence other relatives education; tenance and said Theo- and of said might minor who be entrusted being they dora Brown desirous that be care, custody, with the maintenance and appointed. so n education of said minor. That said minor parental now said is without “(5) That both Theodora Brown care guardian and has your petitioners no either per- and are that desirous her - your son or estate. changed applicants That her name be from Theodora assuming care, desirous of custody, Brown to Marr un- maintenance, der and education already which latter she name is said purpose minor known, that generally more wish proper legal vested with being harmony authority to and conducive nec- essary carry such desire your pe- the relations into which into effect. That said minor tioners said Theodora within the Brown de- your applicants knowledge of possessed sire enter.” any estate of kind. your That application'was Sep- The above granted applicants provide are able to for the tember the district court of education and maintenance of said County. day On Travis Hicklin P. minor way disqualified are in and Bertha application Hunnicutt filed their proper and are persons to act guard- as county Travis pray- person ians of the of said minor. That appointed ing guardians it is the wish and desire of said minor person of ap- Hunnicutt. This your applicants be so appointed, as plication recites: appear will from the written choice of “ * * * your applicants guardians that Plelen Marr Hunni- said minor, girl cutt and minor of herewith filed.” age years. your applicants application fourteen That The above granted Octo positive have been able to obtain ber 1916 and the duly Hunnicutts quali knowledge as whether either as such guardians. both fied “papa” pre- she wrote letters to them as attorney who Trenckmann, the Mr. her letters to “mother.” P.’s Hicklin change of pared applications usually began knew “Dear Helen.” testified guardianship, and for Hunnicutt; remembered that he Hicklin P. 21, 1920, On November Bertha remembered applications and preparing the wrote a wherein she letter to “Dear Edna” applications him talking at the said : talk- not remember prepared. He did quote years Helen Mar. ago “Five a sweet ing to Bertha or to testimony: joy girl little I from his and have had both mothering making work of “Q. preparing every caring clothes and for her in Hunnicutt discuss you H. way.” pro- of what character the matter out taken be filed and a letter ceedings should December 1942she wrote relationship to their signed in connection with “Dearest Helen” and it “Your *5 A. Hunnicutt? ward, Mar Helen own Mother.” con- Yes; me that from it seems April 12, 1926 Helen Mar filed he Rosenberg Judge with von versation application Passport an American dis- but we guardianship, wanted a had Europe travel wherein she H. P. listed guardianship the effect of cussed Hunnicutt as her father. Attached to adoption, too. application was an Hunni- affidavit of H. P. you then “Q. not whether or State cutt wherein stated that known he had he whether question of discussed past Mar Hunnicutt for ten years application made would whether guardianship, or for a Hunnicutt? adopt Helen Mar should “Helen Hunnicutt was sir; He was Yes, discussed. A. through me action of the District between the difference understood District, Court for the 53rd Judicial two.” Texas, Sept. 18, State of 1916. She years then fourteen old and com- given then stated the reasons witness petent give correct information con- why P. Hunnicutt he by Hicklin cerning parentage place cross exam- Helen Mar. On want birth. statement, Her in connec- taken ination he said: circumstances, tion with other convinc- ed me that she was born in Cuba of make Mr. P. Hunnicutt “Q. Did H. parentage, American brought and was you any about a court statement child, to United States when a small he adoption later the time had at possibly years age.” four five say anything to he guardianship—did ? adoption later a court you about application Also attached awas cer- except No; that he understood A. copy of changing tified the order always her if he he could name to Helen Brown’s Mar Hunnicutt. to.” wanted as foregoing offered evidence was Mar lived Hunnicutt home copies Department certified Austin, schools, Austin became attended (U.S.A.) and which State certificate cer- profession followed dur- a teacher : tifies Her association and relations life. ing her “That the documents with her hereunto an- the Hunnicutts theirs copies daughter par- times that of nexed true all documents at Department “papa” and from the files of this called Hicklin P. taken She ents. away following: and when and constitute the “mother” she was Bertha Application upon passport “1. (meaning “She you) was born in— Cuba, 4,May No. 207125was issued on disclosed birth certi- Hunnicutt; (I Helen Mar ficate understand the birth certificate ; questions) is called for in one of the ft n n n n n # that mother young when died she was a “3. Affidavit of executed Birth child; that brought father him her with H. P. Hunnicutt Helen Marr regarding to the United States after death of Hunnicutt; mother, country and remained in this ({ “5. n Order of ^[*] ^[*] Court ;¡c Cause n No. n ing his continuously life until his cooperated death; in and that dur- agreed 34,136 plan Brown, whereby Theodora Parte, Ex entitled H. P. Hunni- minor, cutt, by adoption became al, et next friends of Theodora Brown, of Mr. (change Hun- name).” and Mrs. H. P. plan nicutt. consumated, Helen Mar Hunnicutt made she has lived with them daughter to teach in the College State Teacher’s under the name of Helen Mar Hun- Kingsville and described herself as nicutt twenty years, more than and still daughter of Hicklin P. and Bertha Hunni- makes her home I would them. cutt. you against advise making refer- your ence to father except by On November 1936 Hicklin P. wrote of Frank Brown. That name is in “My letter to Dear Helen” wherein he *6 cert, birth and army in said: records.” try “Now I will to turn my atten- part tion to that your Bertha letter that re- Hunnicutt died testate proposed lates to and, you among bequests, bequeathed other she preparing are government “my for a posi- property daughter, Helen Mar Hun- to : tion appointed husband, “my nicutt.” She H. my daughter, P. and Mar Helen “The best information I have about independent Hunnicutt” executors of her place and date your birth probated will. This will was and H. P. father is that he was born in Ionia and Helen Mar Hunnicutt as executors County, Mich., year in the ap- affidavit for inheritance tax praisal estate. Helen Mar was there- making answer blank “In No. to “daughter.” in listed as reads, parents dead, ‘if are state name, relationship and address of near- Hicklin P. Hunnicutt testate died in 1953 living or est relative friend’ I would property and devised “my adopted to by giving answer that our and daughter, Helen Mar By Hunnicutt.” (Mr. H.P.H.). address & Mrs. subsequent codicil dated to will in- money creased the amount paid to be depends upon question “It asked Mar option exercise of an you whether should omit answer to purchase $6,000 $8,000, land gave question parents. about deceased In instructions to his executor and said: necessary No. 15 it is this state, department to know whom it purpose intent and “The of this codi- report to in case of should accident change cil is to and increase amount applicant. death of the money of cash which Helen Mar Hun- “ * * * your I believe pay, answers in nicutt is according to said Will parents regard to and January 5, relatives should dated my Executor ” * * information disclose as follows: for one thousand acres of land duly sustained, acts, support codicil was must find will and above it. under conduct probated Mar took admissions of and Helen not now the other (Except option purchase relevant facts and circumstances. settled.) There testimony was witnesses that Mar generally regarded Helen Mar executed was February

On as the prop- daughter her whereby Hunnicutts, they all of gave her will she called her erty Bertha Moorman one witness “Mrs. testified that appointed 1917she was in wife Hunnicutt” the Hunnicutt of H. P. home and Bertha told her that independent adopted executor. she “H. Hunnicutt” had P. Helen. testifying codicil as to what executed a had March 1948 she she been told about background Plelen’s said: “Since this the above will wherein she witness said: * * * Bertha Moorman Hunnicutt Mrs. “That her mother and father were nam- and in her stead she deceased” now killed in a car accident and that he was beneficiary. ed “Mr. H. Hunnicutt” as Presbyterian minister, not been of- The will of Helen has they five children and that had probate parties do fered for and the placed Presbyterian been homes and claim under it. out for adoption, and that had through Presbyterian that Helen Mar was The evidence shows Church.” by profession and that a teacher she positions teaching teach of which one There is testimony nothing sup- College Kingsville. at the State Teacher’s port a finding that an agreement con- engineer a civil Hicklin P. tract to Helen was entered into though extent of Bertha Hunni- her father. The ap- recitals in both the her letters cutt’s education is shown plication ap- of name and the that she was well will show able plication for guardianship quoted above think herself understand her and to directly opposed to the existence of such *7 acts. a contract. Further there is nothing in the letters, affidavits and wills above mentioned findings In his of fact the trial any way that in any makes a reference to prior found that 1914Frank Brown adoption. contract of they At only most re- (Theodora father) Brown’s and Hicklin P. adoption fer to an act of but not a con- and Bertha entered into a con adopt. tract to adoption whereby agreed tract of adopt Hunnicutts would the briefly history will review the Brown. adoption in Texas. It was unknown to of finding cannot statutory be sustained because purely common law but was the support evidence to there is no At most compli it. there must and to effective evidence, Waits, than a scintilla Thompson is no more ance the statute. v. surmise, that Frank Tex.Civ.App., or a Brown mere and 159S.W. 82. Er. ref. How entered the Hunnicutts into contract recognized ever in civil law it the has been agreed whereby it was that the Hunnicutts the from earliest times. State ex rel. Walt adopt Theodora 220, 315, Brown. Yturria,

would This is not 109 Tex. on v. 204 S.W. prove such enough L.R.A.1918F, contract and to dis- In Abney, 1079. v. Jordan resting appellees. 296, 486, the burden on charge 489, 97 Tex. 78 S.W. the court Irvine, 574, Tex. 91 44 v. S.W. 1059. said: Joske point Appellant’s seven is sustained. right “This (adoption) by op- arises no direct evidence There is of an agree- of law from eration the acts of the adopt and if finding, compliance ment to be made with the

948 third on, agreement in the or depend statute, does and predicate necessary instance are a contract.” from, arise powers equity interposition Taylor holding in is the effect To same adoption by of the courts to decree an 246, 1008. These Deseve, 16 S.W. Tex. 81 estoppel acting who, in favor of one and under prior 1920 were decided cases by under virtue such defective and and of 1850 adoption statutes con- proceeding agreement, such or 42, 43 (Arts. then force The statutes upon fers affection benefits and by deed adoption provided for 44) other.” county clerk, a writ- office of There that an instru- authority is no assertion here parental ten transfer adoption ment filed in the' office had volun- parents adoption where clerk, county we have said what These statutes tarily child. abandoned supra disposes issue and contention provision for repealed were agreement adoption that an contract district adoption by petition filed in was entered Hunnicutts and into Leg. p. 42nd Acts court was made. Hun- Frank is asserted that the Brown. Barbee, Cubley 123 Tex. Ch. 177. attempted nicutts Helen Mar and 1934, departs 73 S.W.2d decided attempted adoption validated holdings in consider- the above Ann.Civ.St, 46b, Art. Vernon’s “adoption paper” execut- ing unrecorded quote: notary by adopters together ed before “relinquishment” with a executed papers adoption “All which were both which were parent of the minor signed by adopting parent parents trial, not found at the dis- delivered but 21, 1931, prior August and under the adoption holdings cussed contracts attempted terms of which child was jurisdictions. court conclud- other be, adopted, are, to be and the same opinion “However, we are of ed : hereby binding validated and made of remedy the real classification effect, although force and said estoppel.” papers were not authenticated or ac- deeds, required knowledged as Davis, Tex. Cavanaugh v. prior the death of the 972, 974, the court said: S.W.2d parent adopting filed for record with re- “Under the statutes and the cases par- adopting Clerk of the upon was incumbent re- ferred to it ent’s residence. *8 plead prove spondent according adoption “All decrees heretofore en- recognized rules of law and evidence by Texas, tered District in Courts (1) George Ann execut- that: Barrow proceedings based on conformed statutory ed, acknowledged and adoption as thereafter statutes or adoption instrument of the office of in hereby amended, be, are, same Clerk; George or (2) Ann hereby validated and made of binding statutory Barrow undertook to effect a force and effect.” adoption but because of failed to do so adop-

some in the instrument of defect This statute was enacted first in 1934 acknowledg- tion or in its execution and was amended in or 1947 and 1951. ment, quoted or because failure to record have it as amended in 1951 but it; agreed Ann (3) George Barrow original we have examined the Act and its respondent’s respondent, with or with amendments to determine the status of parents person may with some Helen Mar other as exist under them. The parentis 1st, that she would re- January loco words “Prior to 1923” used in spondent. comply The effort original changed Act have been as now the statute in the supra. second instance and stated the statute change say pur- she Appellees legal henceforth for all poses Hick- affidavit of proceedings and the known under said latter name.” application lin attached to P. Hunnicutt parties The do not so assert and we supra each acts of passport for a both guardianship think the decree is not an supra. To adoption by Art. 46b validated adoption grants application decree. statute come within terms for and creates guardian the status of papers adoption (1) have must been: ward and Hick- status assumed which Helen signed under the terms of lin P. and Bertha Hunnicutt when attempted adopted.” Bertha to be “was qualified guardians person as and she sign Hunnicutt the affidavit did not Helen Mar. in connection need not be further noticed (2) adoption entered it. Or decree We see no attempt evidence anof proper to here no a district It is court. Helen Mar in the affidavit of Hicklin P. repealed 43, supra, they tice Arts. 42 and supra. At most the recital toas being change in force at the time of both the adoption past to a relates occurrence which proceedings. guardianship of name and the is identified as “action of the District Court ” * * * for the 53rd District Judicial decree entered here treat the decree referred de proceeding of name is not being quoted supra. as the decree There nothing cree and in it that there is recited -is no decree of “53rd” .the district quote purports to make it such. We the record and it is not referred to or cited decree in full: parties. supra The decree is the one attached to the “In The affidavit. 26th District Court Judicial County, of Travis Texas Supra we have said that Helen Mar lived in the Hunnicutt home as a 34,136 Parte: H. Hun- “No. —Ex regarded such in community. nicutt, et al This status was consistent with guar day Sep- “Now on this the 18th dianship. being true and when other tember, A.D.1916, regular at a Term of facts and circumstances are considered we Court, regularly came on think that Plicklin designation P.’s of her as application heard the of H. P. Hunni- adopted daughter his descriptio was merely wife, cutt and Bertha personae explained by and is his desire to Brown, next friends obtaining passport assist her in applied girl age a minor of the of fourteen for. Conrad v. Herring, Tex.Civ.App. years asking that the name of said 616,83 S.W. 427. Er. ref. changed Theodora Brown be to Helen Marr And the Court hav- When we consider the meaning of fully ing phrase heard and “attempted considered such adopted” to be used present having heard evidence predecessors Art. 46b and its therewith, fully connection and being necessarily think it includes an intent to *9 premises, opin- adopt. is, advised in the is of the That there must have pres been allegations applica- ion that the in such adopt coupled ent an intent to with an act sustained, out give tion set are and that it is to effect to the intent. Here there is for the best interest of said no evidence of the intent or of the act. It Brown that her name be changed is that if true intent and the act were es prayed thereupon It is for. ordered tablished then the evidence would be con by authority and decreed the court that sistent with the adoption. status of The hereby granted and is applications for the change recitals for change of the name of said minor from guardianship name and Theo- are adverse to in adopt. dora Brown Helen Marr tent application Moreover the for 950 change performed lic

guardianship that officers to followed after ascertain ing no duty which there would have been facts. However such minis in- judicial. been terial and Thomp need if of name had not Renaker v. son, 241, adoption Ky. The of Helen Mar. 152 tended S.W.2d 575. intent Hicklin P. not to It is to be noticed here the by testimony Mr. Trenck- is shown undertaking are to inherit from talk that he mann. fact Hicklin by P. and Bertha Hunnicutt estab- she immaterial since Bertha Hunnicutt is lishing the status of Helen Mar as their alleged be an did not execute the affidavit adopted daughter. is in effect the re- attempt Helen Mar. verse principle estoppel. of the true “Es- toppel The letter from Bertha Hunnicutt can never be invoked to establish facts, explained may but supra logically only prevent “Dear Edna” is par- be used to person relying upon of Helen Mar’s ties from guardianship facts which ex- do Quoted circum- existing the then facts and ist.” all McLemore Charles- v. Memphis well bring Co., 639, the effect of the letter ton & stances R. Ill Tenn. Herring holding within the in Conrad v. S.W. Bonding Massachusetts & supra. Insurance Laundry Co. v. Steam Dallas & Dye Works, Tex.Civ.App., 85 S.W.2d supra stat validating Art. a 46b is 940, Er. ref. As estop- often been has said in prior that were ute and makes valid acts pel does not in give itself cause of action imperfectly but How tended done. it but is a shield and anot sword. prior acts ever its effect limited to those because of named which were not effective There is evidence in the record noncompliance requirements. legal that shows Helen Mar was induced to come 124. p. 16A Constitutional Law live, Hunnicutt home to or to § show C.J.S. there, that she remained any because of be Appellees say that the affidavit adopted, lief she had been and none to P. Hunnicutt with Helen Hicklin show that Hicklin P. and Bertha Hunnicutt passport Mar’s and also received under the benefits belief of an appraisal affidavit inheritance tax existing adoption. status of Guy, Jones estoppels. again judicial constitute Tex. 143 S.W.2d 142 A.L.R. party that Bertha was not a to either. note By giving effect to all of the evidence apply Appellees say estoppels these acts, (the conduct and admissions estop- agree if Mar and heirs. We parties and the circumstances) favorable pels shown exist. adoption probative to the status of force of such evidence is so merely weak Secretary office of of State suspicion raises surmise or States, the affidavit United office amounts to no evidence. Joske filed, nor the office of Hicklin P. was supra. Irvine The facts do not meet the test Comptroller, finally which office Texas in Cavanaugh stated supra. v. Davis As passed on the affidavit for tax inheritance there stated the test is: and are not appraisal, are not courts vested is true judicial functions. that the raised, “The here as is appraisal ordinarily for inheritance tax cases, affidavit true in such when the county lips the office of the clerk of alleged adopter filed in have been requirement but is a Travis sealed death and effort es- con think these affidavits law. We do tablish an property. interest Such *10 judicial estoppels. Helfer Mutual stitute claims should be received with caution. Ass’n, Health & Accident 170 Tenn. Benefit Before should one be decreed to be the 1103, adopted 113 Each S.W.2d A.L.R. child 630, and heir of another in imposed duty upon pub compliance affidavits of the absence of with the 2572, V.A.C.S., simple method of estate because Art. un- prescribing a statute appellees, status, proof of the facts der the collateral heirs of effecting the adoptive parents Hun- intervention of Helen Mar of essential to invoke the nicutt, only unequivocal may claim in clear, be invoked behalf equity should be adoptive parents 573, (or of their heirs) 235 S.W. an convincing.” Tex. [149 “legally adopted intestate who was their 2d 978] heir.” Hunnicutt was We hold that Helen In Johnston, Tex.Civ.App., Calvert v. adopted of Hicklin

not 394, Tex., it 304 affirmed holding makes S.W.2d S.W.2d This Bertha Hunnicutt. 778, it was held that child not the other in unnecessary consider for us to accordance with appeal ac- the statutes presented by the questions “legally adopted meaning child” within the cordingly do not reach adopt- of inheritance tax legally statute Class meaning the term “the Art. A, in V.A.C.S. used Art. ed heir another” as supra. quote I opinion from concurring Calvert v. S.W.2d views herein ex- accordance [304 399]: Johnston pressed judgment of the we reverse the Doersam, “In Sommers v. 115 Ohio judgment dis- trial court and here render 387, 389, Supreme St. 152 N.E. tributing the Helen Mar entire estate of Ohio, Court of the Court in considering among her lawful heirs es- a devise in a will conditioned that the by judgment tablished of the trial devisee remained unmarried until her proportions specified, ex- therein ‘legally adopted death and has a child’ cluding participation therein the heirs say: had this to Hicklin P. and Bertha Hunnicutt. “ expression “legally adopted” ‘The judgment prejudice is without means in accordance with the laws of the lawful administration of Estate of the state in force and effect at the time Helen Mar Hunnicutt in the Probate Court of the execution will. These n ofTravis County. are, course, matters statutory, adoption was unknown common

HUGHES, Justice. * * law England; *. His use of adopted” “legally words indicates I concur holding of the majority any adoption his desire made attempted was no validation of an his widow should be accordance 46b, Art. under V.A.C.S. ” the law of the land.’ disagree I majority with the in its de- my opinion It is the Legislature cision there was sup- evidence enacting 2572, supra, Art. intended port finding Trial Court that an language exception used to create adoption by estoppel been had effected. It general only rule therein stated in favor my opinion finding that such is not persons adopted and made heirs in accord- against weight I evidence. do ance with our statutes. upon opinion elaborate because the fairly facts are in the majority opin- stated adoption by estoppel An adop- not an they speak forcefully ion for them- tion made in accordance with the statutes selves. legal adoption. is not a equita- anis opinion I am also of the that the adoption. heirs Cubley Barbee, ble 123 Tex. Helen Mar Hunnicutt are entitled to all of 73 S.W.2d 72.1 36, p. by Estoppel, 1. See excellent article Yol. Professor Edward W. Review, Adoption Bailey. Texas Law entitled *11 952 inequitable be that it Lighthizer, 363 is so and un Rumans v.

The case of just 397, comply simi- to allow to fail 125, strikingly one 249 S.W.2d Mo. agreement parent an made especial importance with the or and is lar this case adopt it, custodian of a adoption Missouri child to when statutes of because the Barbee, age has taken the child at such an Cubley v. much like our own. 398, that it had no will or choice of its own supra. Guy, See also 135 Tex. Jones matter, that, after the has 906, child 142 A.L.R. 77. 143 S.W.2d performed contemplated everything was, here, contest between There the provided for, the relation the intended adopted an child and the the blood kin of adoptive parent or his will be heirs adoptive parent kin an who sur- blood estopped deny adoption.’ Thomp an adopted whom vived the child but both of Moseley, 240, son v. 344 Mo. 125 S.W. intestate, adopted dying child with- died * * * 860,862, 2d spouse. surviving out or issue equitable adoption “An functions to that the child had The Trial Court found rights enforce of the child under adopted, legally never been because agreement’ adopt. The child is adoption stat- was not in accord with the chargeable adoptive par- with the utes, by estoppel” equity but “was deed, ent’s failure to record the adopted judgment child and rendered in equity agree- enforcement adopted child. favor of the heirs of the ment to should not addi- confer rights upon adoptive parent. tional law at the the im- Under Missouri right inheritance the child statutory perfect adoption of the child from right is a adopted child executed the of an different from agreement child to passed who intestate to its heirs ex- enforce died adopt. legal statutory adop- That a or adoptive parents cluding the and their kin. tion, persons binding on all in accord Subsequently prior to the death of the statutory provisions, with the differs adopted changed, this law child equitable adoption, from an which is part, providing, in statute upon protection contract for based adopted “When child is in accord- binding of the child and on the provisions ance with the arti- privity them, or those is the ef- 1917, 194, p. cle” Laws V.A.M.S. § 697, Cowgill, fect Menees v. 359 Mo. 1677 412, 418, 223 reaching S.W.2d case upon this court transfer from the Kan- adoptive parents should inherit City Appeals, Mo.App., sas Court of adopted child as in the case a natural (Italics S.W.2d 571.” added.) attempt pro- child. No under the visions of this statute was made. As stated Court in Rumans held that affirming judgment adoption of the Trial legal there was and that an Supreme Missouri, Court the Di- equitable adoption Court could not inure to the Rumans, adoptive parents vision stated: benefit of their kin by permitting right them the of inheritance “Equity protect acts to the child. A by estoppel. from the child adoption writing deed of is not es equitable adop my sential to decree of I correct in If am view legal that no Taylor Coberly, tion. 327 Mo. is shown here then if the Missouri 1055, 1060[3]; right, is, 38 S.W.2d Ahern v. case is I believe that Matthews, adoption by 337 Mo. estoppel S.W.2d fact that is shown making The basis of the doctrine of Helen Mar Hunnicutt an adopted [4]. equitable adoption recognized ‘has been child is not sufficient to upon.her confer *12 right to their kin parents or adoptive her.

inherit concur I stated the reasons For rendering reversing holding

majority case. in this

judgment Shead, Harvey P. Longview, appel- THOMAS, Appellant, N.H. lant. Smith, & Caston, Longview, Porter ux., Appellees. Henry JESTER et appellees. No. 7117. Appeals of Civil Court Texas. DAVIS, Justice. Texarkana. Plaintiff-appellant, Thomas, N. sued H.

June defendants-appellees, Henry Jester wife, Mae, upon Betty lien a mechanic’s $1,650,plus contract to recover the sum attorney’s Appellant’s interest and fees. petition sought also to foreclose a me- upon appellees’ property. He lien chanic’s sought to recover additional also $558.50 house, additional work on did claiming same was not covered jury Trial was which found contract. to a work done the contract as that the under and materialman’s set out in mechanic’s upon good was not in a lien sued done The workmanlike manner. and substantial response jury found in second them that the special issue submitted to cellar construction of a storm cost May would be $750. constructed. storm cellar $2,000. original lien was upon jury’s findings under the Based court, testimony produced before appellant entitled was not court found appellees against on judgment upon lien contract sued mechanic’s have declared appellant was appellees. property of the upon the lien that the work claimed find extra He actually by plaintiff was been done to have