Martinez v. Gutierrez, 1394-6009.

• Decision Date: 30 December 1933
• Docket Number: No. 1394-6009.,1394-6009.
• Citation: 66 S.W.2d 678
• Parties: MARTINEZ et al. v. GUTIERREZ et al.
• Court: Texas Supreme Court

66 S.W.2d 678

MARTINEZ et al. v. GUTIERREZ et al.

No. 1394-6009.

Commission of Appeals of Texas, Section B.

December 30, 1933.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Suit by Brigido Gutierrez and others against Isidro Martinez and others. Judgment in favor of the defendants, sustaining a general demurrer to the petition and dismissing the suit, was reversed by the Court of Civil Appeals [37 S.W.(2d) 833], and the defendants bring error.

Judgment affirmed, and cause remanded in accordance with opinion.

Mann, Neel & Mann, of Laredo, for plaintiffs in error.

W. W. Winslow and Gibson & Blackshear, all of Laredo, for defendants in error.

SMEDLEY, Judge.

Defendants in error sued to establish their ownership of an undivided one-fourth interest in a tract of land situated in Zapata county, Tex., containing 5,280.7 acres, known as the Blas Maria grant, which was originally titled by Spain to Antonio Martinez Gutierrez, and for partition. After alleging in general terms their ownership of such undivided interest, defendants in error particularly alleged that they acquired the interest claimed by them as the children and sole heirs of one Jose Encarnacion Gutierrez, who acquired his interest as the adopted child and sole heir of Gregoria Martinez, the daughter of Antonio Martinez Gutierrez, the original grantee. The petition alleges that said Jose was adopted as the child of Gregoria Martinez and her husband in the city of Guerrero, state of Tamaulipas, Mexico, in the year 1851, in accordance with the laws with reference to adoption then in force in said state.

The trial court sustained a general demurrer to the petition and dismissed the suit. The Court of Civil Appeals held that the petition was not subject to general demurrer, and reversed and remanded the cause.

The important question in the case is whether or not one adopted in conformity with the laws in effect in Mexico in the year 1851 may inherit from the adopting parent land in Texas under and in accordance with the Texas laws of descent, that is, in the same way and to the same extent that a child adopted in Texas inherits. It is the contention of plaintiffs in error that the courts of this state will not recognize such adoption in Mexico because the laws then in effect in Mexico, both with reference to the method of adoption and with reference to the rights of the adopted child to inherit, were fundamentally different from the laws and policies of Texas.

The only Texas case which appears to bear directly upon the question presented is McColpin v. McColpin's Estate (Tex. Civ. App.) 75 S. W. 824; Id. (Tex. Civ. App.) 77 S. W. 238. There the petitioner, Mrs. Cummins sought in probate court to establish a right to inherit the property of C. A. McColpin, claiming that she had been legally adopted by him in the state of Kentucky in accordance with the laws of that state. In its first opinion the Court of Civil Appeals held that it was not necessary for it to decide whether or not the adoption in Kentucky would be effective in Texas and make Mrs. Cummins McColpin's heir, because the evidence did not show that Mrs. Cummins had been adopted by McColpin in the state of Kentucky and in conformity with the statute of that state. On rehearing, however, the Court of Civil Appeals decided this question, and remanded the case for trial of the issue whether the contract of adoption was or was not executed in the manner required by the Kentucky law. The court's decision of the question is thus stated by Judge Key: "While we have found no case in which the question has been decided in this state, the weight of authority seems to support the doctrine that the adoption of a child in one state, in accordance with the laws thereof, will entitle such child to inherit property left by the adopter in another state. 1 Am. & Eng. Ency. Law (2d Ed.) p. 733, and cases there cited. Ross v. Ross, 129 Mass. 243, 37 Am. Rep. 321, is the leading case on the subject, and holds that adoption, like marriage, fixes a status, and establishes the fact that the person adopted is, in law, as to the subject of inheritance, a child of the adopter. While there are authorities to the contrary, we accept that doctrine."

Application for writ of error to the Supreme Court was dismissed for want of jurisdiction.

The doctrine thus stated and accepted by Judge Key is the generally accepted doctrine, and is, as he says, supported by the great weight of authority, including a number of carefully considered later decisions.

Texas Jurisprudence cites the case of McColpin v. McColpin's Estate, as holding that the adoption of an heir in another state according to the laws of such state will entitle such heir to inherit property left by the adopter in this state. The reference to that decision is then followed by the following statement: "The true doctrine is announced to be, that adoption, like marriage, fixes a legal status and establishes the fact that the person adopted is, in law, an heir of the adopter." 1 Tex. Jur. p. 745.

Wharton on Conflict of Laws (3d Ed.) § 251a, after referring to some of the conflicting decisions, thus states the general rule: "There is, however, no doubt as to the general principle that the status acquired by adoption in a state or country having jurisdiction will be recognized both for the purpose of the descent of real, and the distribution of personal, property in other states or countries, at least in those whose laws provide for adoption." See, also, Minor's Conflict of Laws, § 101, p. 223; 1 C. J. pp. 1402, 1403; and see many authorities cited and discussed in extended note in 73 A. L. R. page 964 and following.

It is not believed that the right of the child adopted in a foreign jurisdiction to inherit land in Texas is affected by the fact that the method of adoption under the law of the foreign state may have been radically different from the method under the Texas statute. In Mexico, according to the allegations in the petition, adoption was accomplished through proceedings before a judge, while under the Texas statute enacted in 1850 the method of adoption was the execution by the adopting parent and filing for record of an instrument in the nature of a deed. Acts 3d Leg. c. 39, p. 36, 3 Gammel's Laws, p. 474. The particular form prescribed by law for adoption is of no real consequence. The method is left to the legislative department. It may make the ceremony simple, as it was under the original Texas statute, by requiring no more than the executing and recording of an instrument like a deed, or it may make it more formal by requiring a hearing before, and an order or decree by, a judge or a court. Generally, one of these two methods is prescribed. 1 R. C. L. p. 598. The decisions that have to do with the effect of the law of the state of the adoption upon the right of the adopted child to inherit land in another state concern themselves but little with differences in the method of adoption.

A more difficult question is raised by the contention of plaintiffs in error that the child adopted in Mexico was not entitled to inherit land in Texas because rights of inheritance given by the law of Mexico to children adopted there were radically different from, and more restricted than, the rights of inheritance given to adopted children by the Texas statute.

This position is supported to an extent by such decisions as Shaver v. Nash, 181 Ark. 1112, 29 S.W.(2d) 298, 73 A. L. R. 961, and Sunderland's Estate, 60 Iowa, 732, 13 N. W. 655. Those decisions treat the law as to what the adopted child may or may not inherit as being a qualification of the capacity to inherit rather than as a part of the law of inheritance and a limitation or restriction of the right to inherit. Such decisions run counter to the ancient and well-settled doctrine that real estate, its ownership, conveyance, and descent, are exclusively subject to the laws of the state or nation in which it is situated. See 9 Texas Jurisprudence, p. 359; Story on Conflict of Laws (8th Ed.) §§ 424—463; Wharton on Conflict of Laws (3d Ed.) § 274 and following; Minor's Conflict of Laws, § 11.

Other, and it is believed better reasoned, decisions permit a child adopted in a foreign state to inherit land in accordance with the laws of the state where the land lies, although the adopted child may be given thereby greater rights of inheritance than were accorded by the law of the state of his adoption. See Anderson v. French, 77 N. H. 509, 93 A. 1042, L. R. A. 1916A, 660, Ann. Cas. 1916B, 89; In re Reimann's Estate, 124 Kan. 539, 262 P. 16.

The basis for the decisions last referred to is that they recognize as two separate and distinct things, first, the status created by adoption with its incidental capacity to inherit, which is controlled and determined by the law of the place of adoption, and, second, the right to inherit property which is fixed and measured as to realty by the law of the place where the land lies, and as to the personalty by the law of the domicile of the owner.

This principle is best expressed by Chief Justice Gray in the leading case of Ross v. Ross, 129 Mass. 243, 37 Am. Rep. 321, where he says:

"It is a general principle, that the status or condition of a person, the relation in which he stands to another person, and by which he is qualified or made capable to take certain rights in that other's property, is fixed by the law of the domicil; and that this status and capacity are to be recognized and upheld in every other State, so far as they are not inconsistent with its own laws and policy. Subject to this limitation, upon the death of any man, the status of those who claim succession or inheritance in his estate is to be ascertained by the law under which that status was acquired; his personal property is indeed to be distributed according to the law of his domicil at the time of his death, and his real estate descends according to the law of the place in...