Brown v. Brown

• Decision Date: 24 September 1951
• Docket Number: No. 6173,6173
• Parties: BROWN et al. v. BROWN et al.
• Court: Texas Court of Appeals

Page 995

245 S.W.2d 995

BROWN et al. v. BROWN et al.

No. 6173.

Court of Civil Appeals of Texas, Amarillo.

Sept. 24, 1951.

Rehearing Denied Nov. 5, 1951.

McNees & McNees, Dallas, for appellants.

Sanders, Scott, Saunders & Smith, Adkins, Folley, Adkins, McConnell & Hankins, and Lewis Jeffrey, Amarillo, for appellees.

LUMPKIN, Justice.

This appeal is from an order dismissing a suit in which Earl Richardson Brown and Viola Richardson Brown Blankenship and husband, Donald B. Blankenship, are plaintiffs, and Albert William Brown and the other beneficiaries under the will of William H. Brown, deceased (some 22 in number), are the defendants.

The plaintiffs pleaded that William H. Brown was married twice, first to Nellie Gray Brown, who died in 1894. To this union were born three children: Alfred Oliver Brown, Albert William Brown and Florence Cornelia Brown. Only the defendant, Albert William Brown, was living at the time this suit was filed. William H. Brown's second wife was Mary F. Brown. No children were born to this marriage.

On May 21, 1915, the plaintiffs, Earl Richardson Brown and Viola Richardson Brown Blankenship, orphan children, seven and six years old respectively, were living in the Brown home located on a ranch near Dumas, Texas. On that day the following instrument, properly acknowledged, was filed in the Deed Records of Moore County:

'State of Texas

'County of Moore

Know All Men By These Presents:

'That we, Wm. H. Brown and wife, Mary F. Brown, of the County and State aforesaid, hereby adopt Earl Richardson and Viola Richardson, orphan children now in my home, placed there by the Texas Children's Home and Aid Society, said children to hereafter be known as Earl Richardson Brown and Viola Richardson Brown. We adopt said children under the laws of the State of Texas, and pledge ourselves to be to said children kind and affectionate parents and to accord to them all the opportunities in life that our means and standing entitles them to. We pledge ourselves to be to said children the same parents as if they was (sic) our own children by nature, and to see that their intellectual and moral training is well cared for. The said children shall share our property as provided for by the laws of Texas.

'Witness our hands this 21st day of May, 1915.

'Wm. H. Brown

'Mary F. Brown.'

According to the plaintiffs' allegations, Mary F. Brown died on July 18, 1926. Her will, probated on February 21, 1927, bequeathed all of her property to her husband. When William H. Brown died on January 12, 1941, he owned real estate of the approximate value of $1,000,000 and personal property valued at about $50,000. By the terms of his will, probated on February 3, 1941, most of his estate was placed in trust. It made certain provisions for his natural children and a niece and provided that after their deaths, the estate should pass to his grandchildren. It gave $5 to each of the plaintiffs which they refused to accept.

The plaintiffs pleaded that on or about September 3, 1949, the defendants had entered upon and dispossessed them of their rights in the William H. Brown estate. They prayed for title and possession of a share of the estate. The trial court dismissed the case, and the plaintiffs have duly perfected their appeal to this court.

The plaintiffs predicate their appeal upon this single point of error: 'The error of the court in sustaining the * * * motion to dismiss, because the appellants do have title to the various interests as provided by the Statutes of Descent and Distribution in their deceased adoptive parents' estate, which title was created by the irrevocable deed and contract of adoption which contained the provision, 'The said children shall share our property as provided for by the laws of Texas.''

In our opinion the instrument dated May 21, 1915, and filed in the Deed Records of Moore County, is nothing more, and was intended to be nothing more, than a simple deed of adoption as provided for by the statutes then in effect. It vested no property rights in the plaintiffs either by deed or contract.

The statute under which the plaintiffs were adopted in 1915, Article 1, Vernon's Sayles' Texas Civil Statutes, 1914, reads as follows: 'Any person wishing to adopt another as his legal heir may do so by filing in the office of the clerk of the county court of the county in which he may reside a statement in writing, by him signed and duly authenticated or acknowledged, as deeds are required to be, which statement shall recite, in substance, that he adopts the person named therein as his legal heir, and the same shall be admitted to record in said office.'

The rights granted an adopted person are set forth in Article 2 of the statute: 'Such statement in writing, signed and authenticated or acknowledged, and recorded as aforesaid, shall entitle the party so adopted to all the rights and privileges, both in law and equity, of a legal heir of the party so adopting him; provided, however, that if the party adopting such heir have, at the time of such adoption, or shall thereafter have, a child begotten in lawful wedlock, such adopted heir shall in no case inherit more than one-fourth of the estate of the party adopting him.'

In construing these statutes our courts have held that the primary effect of an adoption was to create the legal relation of ancestor and heir and not to create the status of parent and child. Eckford v. Knox, 67 Tex. 200, 2 S.W. 372; Preusse v. McLerran, Tex.Civ.App., 282 S.W. 293; Bell v. Thomsen, 116 Tex. 325, 273 S.W. 1109. To effect an adoption under the statute, the instrument, or deed of adoption, had to declare in substance that the adopter made the adopted his full legal heir, Thompson v. Waits, Tex.Civ.App., 159 S.W. 82, and without condition, Preston v. Mayo, Tex.Civ.App., 238 S.W. 1008, else the one to be adopted did not become the legal heir of the adopter. The Supreme Court in the case of Eckford v. Knox, supra (67 Tex. 200, 2 S.W. 372), construed...