Armstrong v. Hixon

• Decision Date: 26 October 2006
• Docket Number: No. 13-05-320-CV.,13-05-320-CV.
• Citation: 206 S.W.3d 175
• Parties: Lucie Carr ARMSTRONG, Jr., et al., Appellants, v. Sarita Storey Armstrong HIXON, et al., Appellees.
• Court: Texas Court of Appeals

206 S.W.3d 175

Lucie Carr ARMSTRONG, Jr., et al., Appellants, v. Sarita Storey Armstrong HIXON, et al., Appellees.

No. 13-05-320-CV.

Court of Appeals of Texas, Corpus Christi-Edinburg.

October 26, 2006.

Rehearing Overruled November 30, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Barry Snell, Bayne, Snell & Krause, San Antonio, for appellants.

Jeffrey T. Knebel, Osborne & Helman, Austin, Linda J. Rhodes Schauer, Audrey Mullert Vicknair, Lance K. Bruun, Corpus Christi, Howard P. Newton, Cox Smith Matthews, Inc, San Antonio, Jill S. Williams, Kingsville, for appellees.

Before Justices HINOJOSA, YAÑEZ, and CASTILLO.

OPINION

Opinion by Justice CASTILLO.

Appellants Lucie Carr Armstrong, Jr., and her adult-adopted daughter, Katherine Poulis (collectively "Lucie"), raise seven issues challenging the trial court's judgment granting summary judgment in favor of appellees (collectively "Hixon"),¹ and denying summary judgment in favor of Lucie. We affirm.

I. Background

Basic facts of this case are not in dispute. Tom Armstrong was married to Henrietta R.K. Armstrong, who predeceased him. He had no children. Tom died on March 3, 1986, leaving a written will dated April 30, 1964, as well as a first codicil dated March 22, 1977, and a second codicil dated March 31, 1997 (the "Will"). The 1964 will provides that the remainder of the estate shall be held in trust for the surviving children of Tom's brother, Charles Armstrong ("Charles"), or that child's descendants. The first codicil states it was drafted because, at that time, Tom feared the original copy of the 1964 will could not be located. The codicil expressly states the 1964 will is not revoked; all terms of the will are reaffirmed, and a copy is attached.² The second codicil³ includes the following statement: "It is my hope that the Armstrong Ranch will be held together and operated as a unit as long as reasonably possible."

Tom's residuary estate (the "Residuary Trust") passed to his brother Charles's then-living children, John, Tobin, and Lucie. Tobin was appointed under the Will as the sole trustee of the Residuary Trust, which would terminate upon the death of the last survivor of Charles's children. If one of the children died prior to termination of the trust, that child's share of the income would pass to that child's descendants. John is now deceased, survived by his children and grandchildren. Tobin is still living and has both children and grandchildren. Lucie is still living, but has never married or had a natural child. Recently, Lucie adopted an adult woman, Katherine Poulis.

Subsequent to the adoption, some of the descendants ("Hixon") brought suit on January 2, 2004, to declare that the adopted adult, Katherine Poulis, was not entitled to take as a descendant under the Will. Tobin, Trustee of the Residuary Trust, similarly sought a court interpretation of the term "descendant," and of whether Lucie could take as a beneficiary under the Residuary Trust. In a counterclaim, Lucie requested a declaration that the term descendant did include Katherine Poulis, the adult-adoptee.

The parties filed competing motions for summary judgment. On April 11, 2005, the trial court entered two orders. The first order grants summary judgment in favor of Hixon and denies Lucie's motion.⁴ The court declares that "Katherine Poulis, and any other person adopted as an adult . . . is not and cannot be a remainder or contingent beneficiary of the Trust." A second order issued that same date finds "that the Will of Tom Armstrong is unambiguous," sustains Lucie's objections to Hixon's exhibits 4, 13, and 14, and overrules Lucie's objections as to Hixon's exhibits 5-12, 15, and 16. This appeal ensued.

II. Issues Presented

Lucie brings seven issues for review. Issues one and two challenge the trial court's granting of Hixon's motion for summary judgment, denial of Lucie's motion, and its declaration that Lucie, as an adopted adult, is not a remainder or contingent beneficiary under the Trust. In issue three, Lucie challenges the trial court's decisions regarding attorney fees. In issues four through seven, Lucie challenges the court's failure to sustain Lucie's objections to all extrinsic evidence. We consider the issues in the order presented.

III. Will Construction in the Context of the Declaratory Judgments Act

A. Standards of Review

Suits for declaratory judgment are intended to determine the rights of parties when a controversy has arisen, before any wrong actually has been committed. Montemayor v. City of San Antonio Fire Dep't, 985 S.W.2d 549, 551 (Tex.App.-San Antonio 1998, pet. denied). A declaratory judgment is appropriate if a justiciable controversy exists as to the rights and status of the parties, and the declaration sought will resolve the controversy. Tex. Dep't of Pub. Safety v. Moore, 985 S.W.2d 149, 153 (Tex.App.-Austin 1998, no pet.); see also TEX. CIV. PRAC. & REM.CODE ANN. § 37.003(c) (Vernon 1997).

We review declaratory judgments under the same standards as other judgments and decrees. TEX. CIV. PRAC. & REM.CODE ANN. § 37.010 (Vernon 1997); Guthery v. Taylor, 112 S.W.3d 715, 720 (Tex.App.-Houston [14th Dist.] 2003, no pet.); Roberts v. Squyres, 4 S.W.3d 485, 488 (Tex. App.-Beaumont 1999, pet. denied). We look to the procedure used to resolve the issue at trial to determine the standard of review on appeal. Guthery, 112 S.W.3d at 720; Roberts, 4 S.W.3d at 488. Here, the trial court determined the declaratory judgment issue through summary judgment proceedings.

The function of summary judgment is to eliminate patently unmeritorious claims and defenses, not to deprive litigants of the right to a jury by trial. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex.2004) (citing Casso v. Brand, 776 S.W.2d 551, 556 (Tex. 1989)); Alaniz v. Hoyt, 105 S.W.3d 330, 344 (Tex.App.-Corpus Christi 2003, no pet.). We review de novo a trial court's grant or denial of a traditional motion for summary judgment. Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816 n. 7 (Tex. 2005) (citing Schneider Nat'l Carriers, Inc. v. Bates, 147 S.W.3d 264, 290 n. 137 (Tex. 2004)); Alaniz, 105 S.W.3d at 345. The movant bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. TEX.R. CIV. P. 166a(c); Alaniz, 105 S.W.3d at 345; Mowbray v. Avery, 76 S.W.3d 663, 690 (Tex.App.-Corpus Christi 2002, pet. denied). Where, as here, both parties move for summary judgment and the trial court grants one motion and denies the other, we review both parties' motions for summary judgment and determine whether the trial court erred in its decision. Dow Chem. Co. v. Bright, 89 S.W.3d 602, 605 (Tex.2002); Parker v. Parker, 131 S.W.3d 524, 530 (Tex.App.-Fort Worth 2004, pet. denied).

B. Will Construction

Our primary concern in construing a will is to ascertain the true intent of the testator as expressed in the instrument. San Antonio Area Found. v. Lang, 35 S.W.3d 636, 639 (Tex.2000); Shriner's Hosp. For Crippled Children of Tex. v. Stahl, 610 S.W.2d 147, 151 (Tex.1980). If a will itself is unambiguous, we do not go beyond its specific terms in search of the testator's intent. Lang, 35 S.W.3d at 639; Frost Nat'l Bank v. Newton, 554 S.W.2d 149, 154 (Tex.1977). We construe a will as a whole, giving effect to all its parts. Gee v. Read, 606 S.W.2d 677, 680 (Tex.1980); see Sharp v. Broadway Nat'l Bank, 761 S.W.2d 141, 143-45 (Tex.App.-San Antonio 1998), aff'd, 784 S.W.2d 669 (Tex.1990) (per curiam). Absent ambiguity, the construction of a will is a matter of law. Penland v. Agnich, 940 S.W.2d 324, 326 (Tex.App.-Dallas 1997, no writ).

C. Adoption and Inheritance

The original adoption act of 1850 created the relation of ancestor and heir, or parent and child, as between the adopter and the adopted. Fletcher v. Persall, 75 S.W.2d 170, 170 (Tex.Civ.App.-Austin 1934, writ ref'd). The adopted had no right of inheritance except from the estate of the party adopting him or her. Id. In 1931, the legislature amended the adoption statute as to minors, providing that "all adopted children shall inherit from the adopted as well as its natural parents;" further, "said child shall thereafter be deemed and held to be, for every purpose, the child of its parent or parents by adoption as fully as though born of them in lawful wedlock." Act of May 21,1931, 42nd Leg., R.S., ch. 177, 1931 Tex. Gen Law 300, 302. Despite the language "for every purpose," the 1931 adoption statute did not enlarge the rights of the adopted child so as to give it the right to inherit "through" the adoptive parent, and thus from collateral kindred of the adoptive parent. See Hoch v. Hoch, 140 Tex. 475, 168 S.W.2d 638, 641 (1943); Pylman v. First Nat'l Bank of Beaumont, 247 S.W.2d 580, 583 (Tex.Civ.App.-Beaumont 1952, writ ref'd n.r.e.).

In 1947, the Legislature passed an act to permit the adoption of adults. Act of June 2, 1947, 50th Leg., R.S., ch. 428, 1947 Tex. Gen. Laws 1009. Section 5 of this act provides that all adopted persons shall inherit "from" the adoptive parents as well as the natural parents as if a natural-born child. Id. § 5 at 1010. Other language parallels that used for the adoption of minor children. Id.

In 1951, the adoption statute relating to minors was modified to expressly provide that minors were entitled to inherit both "from and through" the adoptive parents. Act of May 7, 1951, 52nd Leg., R.S., ch. 249, § 9, 1951 Tex. Gen. Laws 388, 390. The inheritance rights of adopted adults continued to be governed by the 1947 Act until it was repealed and the adoption statutes were transferred into the family code in 1973. Acts of 1973, 63rd Leg., R.S., ch. 543, § 16.09, 1973 Tex. Gen. Laws 1411, 1431 (dealing with adoption of minors and providing for inheritance "from and through" the adoptive parents); § 16.55, 1973 Tex. Gen. Laws at 1432 (providing the adopted adult is the "son or daughter of the adoptive parents,...