Cutrer v. Cutrer

• Decision Date: 06 April 1960
• Docket Number: No. 13581,13581
• Citation: 334 S.W.2d 599
• Parties: Charlotte CUTRER, Individually and Guardlan of the Estate and Person of Jeffrey Hermann Cutrer, a Minor, Appellant, v. John Clark CUTRER, Jr., et al., Appellees.
• Court: Texas Court of Appeals

Page 599

334 S.W.2d 599

Charlotte CUTRER, Individually and Guardlan of the Estate and Person of Jeffrey Hermann Cutrer, a Minor, Appellant, v. John Clark CUTRER, Jr., et al., Appellees.

No. 13581.

Court of Civil Appeals of Texas, San Antonio.

April 6, 1960.

Rehearing Denied April 27, 1960.

Lang, Byrd, Cross, Ladon & Oppenheimer, San Antonio, for appellant.

Schweppe, Schweppe & Allison, Stahl & Sohn, San Antonio, for appellees.

BARROW, Justice.

Charlotte Cutrer as guardian of the estate of Jeffrey Hermann Cutrer, a minor, plaintiff below and appellant here, sued Ruby Henderson, guardian of the estate of John Clark Cutrer, Jr., a minor, and the National Bank of Commerce of San Antonio, defendants below and appellees here, to enforce the claim of Jeffrey Hermann Cutrer to an undivided interest in three trusts. Ruby Henderson, as guardian aforesaid, duly answered, and National Bank of Commerce of San Antonio, Trustee, answered by bill of interpleader and tendered the trust estate into court.

The trial was to the court and judgment was rendered denying completely the claim of Jeffrey Hermann Cutrer. John Clark Cutrer, Jr., will be referred to as John C. Cutrer, Jr., and his father, John Clark Cutrer, will be referred to as John C. Cutrer.

The controlling facts, as appear from appellees' brief, are as follows:

Stella Cook Herff was a settlor and plaintiff's main witness in the case. Her first marriage was to John Cutrer. Two children were born of this marriage,--John Clark Cutrer and Stella Cook Cutrer. John Clark Cutrer was born on December 18, 1921.

Stella Cook Herff next married Dr. Andrew Wessels in 1932; this marriage terminated in 1950, and she is presently the wife of Dr. Ferdinand Herff.

Her daughter, Stella Cook Cutrer, married and is now Stella Cook Meyer.

Her son, John Clark Cutrer, married Barbara Lucille Steussy on June 10, 1945. They had a son, John Clark Cutrer, Jr., born on May 24, 1947. Barbara Lucille Steussy Cutrer was divorced from John Clark Cutrer on January 20, 1949 and died on January 6, 1958.

Charlotte Wessels (no relation to Dr. Andrew Wessels above), the mother of Jeffrey Hermann Wessels who was born November 1, 1945, married John Clark Cutrer on May 19, 1954. John Clark Cutrer adopted Jeffrey Hermann Wessels on May 24, 1955.

John Clark Cutrer died on May 7, 1958. Ruby Henderson, the maternal grandmother of John Clark Cutrer, Jr., was appointed guardian of his estate on December 9, 1958, and said child is now in her custody.

The Three Trusts

Trust No. 53. This trust was executed by Stella Cook Wessels on December 29, 1937. Under its terms she deposited $5,000.00 with the National Bank of Commerce, as Trustee, with powers of investment. Her son, John Clark Cutrer, was named as principal beneficiary. Paragraph III provided:

'that the Trust hereby created is a gift and shall be and remain irrevocable insofar as I am concerned;'

In paragraph V, she provided for monthly payments to John Clark Cutrer,

'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.'

Trust No. 79. This trust was executed by Dr. Andrew B. Wessels on May 6, 1941. He was the then husband of Stella Cook Wessels. Under its terms, he deposited $6,000.00 with the National Bank of Commerce, as Trustee. In every other respect it is word for word identical with Trust No. 53. It appears on the face of this instrument, that aside from depositing $6,000.00, instead of $5,000.00, Andrew B. Wessels merely copied the terms of Trust No. 53, executed by Stella Cook Wessels on December 29, 1937.

Trust No. 173. It appears that in 1923 F. W. Cook, the father of Stella Cook Herff, placed $10,000.00 with the San Antonio Loan & Trust Company, to be administered as a 'Trust Estate.' Under date of January 31, 1942, this trust estate was acknowledged to be in the sum of $22,389.19, and was carried by the San Antonio Loan & Trust Company as 'Trust Estate of John Cutrer and Stella Cutrer, Minors.' On that date Mrs. Stella Cook Herff, then Stella C. Wessels, joined by her then husband Andrew B. Wessels, and her children, Stella Cook Cutrer and John Clark Cutrer (only nineteen years of age) executed an instrument by the terms of which Stella Cook Wessels was to have 'full, sole and exclusive control of the said fund' until her death, or January 1, 1952, whichever date shall first occur, with the right to leave the funds with San Antonio Loan & Trust Company. Upon her death, or January 1, 1952, one-half of the undisbursed fund was to belong to her son John Clark Cutrer and the other one-half to her daughter Stella Cook Cutrer.

On September 23, 1946, the same parties executed another instrument, cancelling the instrument of January 31, 1942, and acknowledging that the San Antonio Loan & Trust Company had possession of funds under an account styled 'Trust Estate of John Cutrer and Stella Cutrer Meyer' (the daughter having married), with the termination date extended to January 1, 1960, or the death of Stella C. Wessels, whichever shall first occur; Stella Cook Wessels had the right to change Trustees. Paragraphs 11 and 12 of this instrument provided:

'11th: The equitable owners of the 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 the 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 die before the 'Date of the 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 Curter 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.'

On December 26, 1946, Stella C. Wessels exercised her authority to direct the transfer of this Trust Estate out of the possession of the San Antonio Loan & Trust Company into the possession of the National Bank of Commerce.

Trust No. 53 will be referred to as the Stella Wessels Trust; Trust No. 79, as the Andrew Wessels Trust, and Trust No. 173, as the Cook Trust.

Appellant predicates her appeal primarily upon the right of Jeffrey Hermann Cutrer, the adopted child, to participate as a remainderman in the three trusts involved in the case. Appellant contends that, having been legally adopted in May, 1955, under the provisions of Article 46a, Vernon's Ann.Civ.Stats., as amended in 1951, Jeffrey Hermann Cutrer became, under Section 9 thereof, a child of John C. Cutrer as fully as though naturally born to said parent in lawful wedlock, and that under such statute he became an heir of the body of John C. Cutrer, as applied to the trust known as Trust No. 173.

We shall first consider the Stella Wessels Trust and the Andrew Wessels Trust. Inasmuch as the provision of these two trusts are identical, we will discuss only the Stella Wessels Trust.

This trust was executed by Stella Cook Wessels, joined pro forma by her then husband, Andrew Wessels. Under the terms of this written trust she deposited in the National Bank of Commerce of San Antonio, as trustee, the sum of $5,000.00, with power of investment. Her son, John C. Cutrer, was named as principal beneficiary. The trust provided for monthly payments to him, and then provided:

'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 * * *.'

The trust instrument then provided for other alternative beneficiaries in the event her son should die leaving no children. By its terms, the trust is made irrevocable.

Appellant takes the position that because of the passage of Article 46a, Sec. 9, Vernon's Ann.Civ.Stats., 1931 Session Laws, Ch. 177, p. 300, the adopted child, Jeffrey Hermann Cutrer, became the child of John Cutrer for every purpose, and, therefore, he became one of the beneficiaries of the Stella Cook Wessels Trust as well as the Andrew Wessels Trust. We do not agree with that contention. We believe, under the authorities construing Article 46a, Sec. 9, the term 'child or children' is not so broad as to include an adopted child when used by private persons in private transactions, unless the language used clearly indicates that the parties so intended, or is required by statutory definition. Murphy v. Slaton, 154 Tex. 35, 273 S.W.2d 588, Id., Tex.Civ.App., 273 S.W.2d 893; 95 C.J.S. Wills Sec. 653 p. 954; 1 Am.Jur. 665, Adoption of Children, Sec. 64. The rule has been stated in 95 C.J.S. Wills Sec. 653, p. 954, as follows:

'Ordinarily, an adopted child is not actually a child of the adopting parent, and does not come within the usual meaning of 'children,' as used in a will to designate beneficiaries. However, whether the term 'children' as so used in a will includes adopted children as well as children of the blood of the person designated...