Cutrer v. Cutrer

• Decision Date: 19 April 1961
• Docket Number: No. A-7889,A-7889
• Citation: 345 S.W.2d 513,162 Tex. 166,86 A.L.R.2d 105
• Parties: , 86 A.L.R.2d 105 Charlotte CUTRER, Guardian of the Estate of Jeffrey Hermann Cutrer, a Minor, Petitioner, v. John Clark CUTRER, Jr., and the National Bank of Commerce of San Antonio, Trustee, Respondents.
• Court: Texas Supreme Court

Page 513

345 S.W.2d 513

162 Tex. 166, 86 A.L.R.2d 105

Charlotte CUTRER, Guardian of the Estate of Jeffrey Hermann Cutrer, a Minor, Petitioner, v. John Clark CUTRER, Jr., and the National Bank of Commerce of San Antonio, Trustee, Respondents.

No. A-7889.

Supreme Court of Texas.

April 19, 1961.

Rehearing Denied May 10, 1961.

Lang, Byrd, Cross, Ladon & Oppenheimer, Stanley D. Rosenberg, San Antonio, with above frim, for petitioner.

Stahl & Sohn, Schweppe, Schweppe & Allison, San Antonio, for respondent John Clark Cutrer, Jr.

Cox, Patterson & Smith, San Antonio, for respondent Nat'l Bank of Commerce of San Antonio, trustee.

WALKER, Justice.

The principal question to be decided in this case is whether Jeffrey Hermann Cutrer, the adopted child of John Clark Cuter, is one of the 'children' or 'heirs of the body' of John Clark Cutrer within the meaning of those terms as used in three trust instruments.

Stella Cook, the daughter of F. W. Cook, was first married to John Cutrer. In 1932 she married Dr. Andrew Wessels, but this marriage terminated in 1950 and she is now the wife of Dr. Ferdinand Herff. Two children were born to her first marriage: John Clark Cutrer, who was born December 18, 1921, and Stella Cutrer, who is now the wife of John Edward Meyer.

John Clark cutrer married Barbara Lucille Steussy on June 10, 1945, and they had one child, John C. Cutrer, Jr., who was born May 24, 1947. They were divorced in 1949, and John Clark Cutrer married Charlotte Wessels about five years later. The latter, who is not related to Dr. Andrew Wessels, had one child born of a former marriage. That child, Jeffrey Hermann Wessels, was born on November 1, 1945, and was adopted by John Clark Cutrer on May 24, 1955.

The Three Trusts

Trust No. 53: This trust, which was created by Stella Cook Wessels on December 29, 1937, is governed by an instrument executed by the settlor on that date. Under its terms she deposited $5,000 with the National Bank of Commerce as trustee and directed that the income be accumulated and added to the principal until John Clark Cutrer reached the age of twenty-five. It was stipulated that all income thereafter accruing should be paid to John Clark Cutrer in monthly installments, and that 'such monthly payments shall continue until the death of my son, John Clark Cutrer, at which time this Trust shall terminate and shall descend to his child or children, share and share alike; but should the said John Clark Cutrer die leaving no children, then this trust estate shall pass to and vest in his sister, Stella Cook Cutrer, or her surviving child or children; and in the event the said Stella Cook Cutrer predeceases her brother and leaves no issue, then this trust estate shall be paid over to some Episcopal Church of the City of San Antonio in Bexar County, Texas, to be selected by the Trustee herein.' The trust was expressly made irrevocable.

Trust No 79: This trust was created by Dr. Andrew B. Wessels on May 6, 1941, and the trust instrument is identical in all respects with the one covering Trust No. 53 except that $6,000 was deposited by the settlor with the National Bank of Commerce as trustee.

Trust No. 173: In 1923 F. W. Cook placed $10,000 with the San Antonio Loan & Trust Company to be administered as a trust. On September 23, 1946, John Clark Cutrer and Mrs. Stella Meyer, who were the beneficial owners of the trust estate, joined by Mrs. Stella C. Wessels, Andrew B. Wessels and John Edward Meyer, executed an instrument stipulating that 'Date of Final Disbursement' means January 1, 1960, and providing that the trust property would be delivered by the trustee to the beneficiaries entitled thereto on that date. Paragraphs 11 and 12 of this instrument are as follows:

'11th: The equitable owners of said Trust Estate are as follows: One-half thereof belongs to John Cutrer, and the remaining one-half thereof belongs to Stella Cutrer Meyer. Should John Cutrer die before the 'Date of Final Disbursement', his portion of the Trust Estate remaining undistributed shall thereafter belong to the heirs of his body, and should he not be survived by any heirs of his body, then his portion shall belong to Stella Cutrer Meyer. Should Stella Cutrer Meyer did before the 'Date of Final Disbursement', her portion of the Trust Estate remaining undistributed shall thereafter belong to the heirs of her body, and should she not be survived by any heirs of her body, then her portion shall belong to John Cutrer.

'12th: Should both John Cutrer and Stella Cutrer Meyer die before the disbursement of the Trust Estate, and should neither be survived by the heirs of the body of either of them, then the equitable owners of the Trust Estate shall be Stella Cook Wessels, and should she not be living, then the equitable owners of the Trust Estate shall be the heirs of F. W. Cook.'

The National Bank of Commerce was later substituted for the San Antonio Loan & Trust Company as trustee of Trust No. 173. John Clark Cutrer died on May 7, 1958. Several months after his death the present suit was instituted by Charlotte Cutrer, guardian of Jeffrey Hermann Cutrer, petitioner, against John C. Cutrer, Jr., respondent, and the National Bank of Commerce, trustee, to establish a claim to an undivided one-half interest in Trusts Nos. 53 and 79, and an undivided one-fourth interest in Trust No. 173. The trustee answered with a bill of interpleader and tendered the trust assets to the court. After a trial by the court without a jury, judgment was entered denying petitioner's claims, and the Court of Civil Appeals affirmed. 334 S.W.2d 599. We affirm the judgment of the Court of Civil Appeals.

In jurisdictions where the adoption statutes do not require a different approach, it is generally held that an adopted child is not entitled to property conveyed or devised to the 'children' of the adoptive parent unless a contrary intent is disclosed by additional language or circumstances. See Huxley v. Security Trust Co., 27 Del.Ch. 206, 33 A.2d 679; Peck v. Green, 266 Ala. 321, 96 So.2d 169; In re Chapple's Estate, 338 Mich. 246, 61 N.W.2d 37; Restatement of the Law of Property § 287; 43 Mich.L.Rev. 705, 901. This rule has always prevailed in Texas, at least with respect to instruments which became effective before the 1931 adoption statute was enacted. Murphy v. Slaton, 154 Tex. 35, 273 S.W.2d 588; Cochran v. Cochran, Tex.Civ.App., 43 Tex.Civ.App. 259, 95 S.W. 731 (no writ). According to the authors of the Restatement, the rationale of the presumption is that 'historically, the word 'children' did not include anyone except issue of the body of the designated parent. No legal method for adoption of children existed. Consequently the question as to whether the term 'children' should be construed to include adopted children could not be raised. This historically derived restriction upon the inclusiveness of the term continues, except when a 'contrary intent of the conveyor is found from additional language or circumstances.' This continuance finds justification in the obvious fact that the conveyor normally does not desire the designated parent to have power, by adopting any person he may choose, in effect to appoint the subject matter of the conveyance to such person.'

Petitioner does not question the Murphy and Cochran decisions. She points out, however, that the courts were there construing instruments in the light of the 1850 adoption statute, which did nothing more than make an adopted child the legal heir of the adopter. See Article 43, Tex.Rev.Civ.Stat.1925; Gammel's Laws of Texas, Vol. 3, p. 474; Eckford v. Knox, 67 Tex. 200, 2 S.W. 372; Harle v. Harle, 109 Tex. 214, 204 S.W. 317, 15 A.L.R. 1261; Taylor v. Deseve, 81 Tex. 246, 16 S.W. 1008; State ex rel. Walton v. Yturria, 109 Tex. 220, 204 S.W. 315, L.R.A.1918F, 1079. The 1931 statute provided, among other things, that a child adopted in accordance with its provisions should '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.' Acts 1931, 42nd Leg., p. 300, ch. 177, § 9, Vernon's Ann.Civ.St. art. 46a, § 9. Since the trust instruments in the present case were executed while this statute was in in effect, petitioner argues that Jeffrey is to be regarded for all purposes as the natural son of John Clark Cutrer and is therefore included within the classes identified as 'children' and 'heirs of his body.' We do not agree.

The 1931 statute did not have the sweeping effect suggested by the language quoted above. Its caption failed to indicate that an adopted child was to inherit from a natural child of the adopter or be given the status of a natural child for all purposes. The provision in Section 9 for inheritance by natural and adopted children from and through each other was accordingly held to be in contravention of Article III, Section 35, of the Texas Constitution, Vernon's Ann.St. Eck v. Eck, Tex.Civ.App., 145 S.W.2d 231 (wr. dis. judg. cor.). That decision was expressly approved in Hock v. Hoch, 140 Tex. 475, 168 S.W.2d 638, 641, where we stated with some emphasis that the legal relationship established by the 1931 Act was effective only 'as between the adopting parent and the adopted child.' It was pointed out that the statute did not intend or purport to go any further except in providing for inheritance by natural and adopted children from each other, and that the latter provision was unconstitutional.

Where the adopting parent or his estate was concerned, a child adopted under the provisions of the statute had all of the rights of a natural child. The adoptive father could be required by the district court to support such child in accordance with the provisions of Article 4639a. ¹ Ex Parte Goldsmith, 155 Tex. 605, 290 S.W.2d 502. A child adopted after the execution of the adopter's will was held to be a pretermitted child and entitled to inherit under the terms of Articles 8292...