Mealy v. First Nat. Bank & Trust Co. of Tulsa

• Decision Date: 24 September 1968
• Docket Number: No. 41641,41641
• Citation: 445 P.2d 795
• Parties: John Byron MEALY, Plaintiff in Error, v. The FIRST NATIONAL BANK AND TRUST COMPANY OF TULSA, as Trustee under the Last Will and Testament of S. R. Mealy, Deceased, Richard Brent Mealy, Max B. Mealy, George B. Mealy, Virginia Dare Mealy and the surviving issue of Richard B. Mealy, Deceased, Defendants In Error.
• Court: Oklahoma Supreme Court

Page 795

445 P.2d 795

1968 OK 134

John Byron MEALY, Plaintiff in Error, v. The FIRST NATIONAL BANK AND TRUST COMPANY OF TULSA, as Trustee under the Last Will and Testament of S. R. Mealy Deceased, Richard Brent Mealy, Max B. Mealy, George B Mealy, Virginia Dare Mealy and the surviving issue of Richard B. Mealy, Deceased, Defendants In Error.

No. 41641.

Supreme Court of Oklahoma.

Sept. 24, 1968.

Syllabus by the Court

Under circumstances of this case, provision of will making devise to 'surviving issue of each deceased child' of testator did not include child adopted by deceased devisee subsequent to testator's death.

Appeal from District Court of Tulsa County; Robert D. Simms, Judge.

Action by trustee, under statutory authority, seeking construction of will. Trial court's judgment excluded deceased devisee's adopted son from participation in estate. Affimed.

Harry M. Crowe, Jr., Crowe, Thieman & Froeb, Tulsa, for plaintiff in error.

Hayden E. Weaver, Tulsa, Guardian Ad Litem for Richard Brent Mealy, a minor, Bradford & Weaver, Tulsa, for defendant in error, Richard Brent Mealy.

BERRY, Justice.

Defendant in error brought this action as Trustee to construe certain trust provisions of the will of S. R. Mealy, executed July 29, 1948, and admitted to probate January 10, 1949, in Tulsa County. Plaintiff bank was named Trustee under a will which created two trust estates and provided eventual disposition of testator's entire estate. Trust 'A' was created solely for benefit of testator's wife and is of no concern herein.

Trust 'B' was for benefit of the wife for life and at her death was to be divided in equal shares between testator's surviving children, or the surviving issue of a deceased child. In pertinent part, the provision was:

'The net income from TRUST B shall be paid in convenient installments, preferably monthly, to my wife, GERTRUDE L. MEALY, during her lifetime. Upon the death of my said wife or upon my death, if she should predecease me, TRUST B shall be divided into equal shares or separate trusts for my children, MAX B. MEALY, RICHARD B. MEALY and GEORGE B. MEALY, one share or separate Trust for each living child and one share or separate Trust per stirpes for the surviving issue of each deceased child, and administered as follows: * * *'

At death testator was survived by three sons, one of whom was Richard B. Mealy. On March 13, 1961, Richard B. Mealy and his wife adopted John Byron Mealy, then 13 years of age, by appropriate proceedings in the Seminole County Court. The adoptive father died December 24, 1962, survived by his natural son, Richard Brent Mealy, and by his adopted son, plaintiff in error herein. Testator's surviving wife died February 2, 1964.

Plaintiff's petition, under authority of 60 O.S.1961, § 175.1 et seq., asked appointment of guardians ad litem for both minor trust beneficiaries, and for the court to take jurisdiction and construe Article IV paragraph 3 of the will to determine whether 'issue' as used therein included John Byron Mealy, and to adjudicate the individual identity of all persons who were surviving issue of Richard B. Mealy and entitled to participate in distribution of Trust B on the date of Gertrude L. Mealy's death.

Answers filed in behalf of both minor sons joined in the prayer for construction of the will. Plaintiff in error further alleged he was the beneficiary and entitled to half interest in the trust estate held for benefit of the issue of Richard B. Mealy, deceased.

The trial court determined the only question was whether plaintiff in error, the adopted son, was included in the term 'issue' as used in the will, and entitled to participate as issue of Richard B. Mealy. The case was presented upon oral arguments and briefs, and then taken under advisement by the trial court. After determining jurisdiction of the subject matter and parties and validity of the trust, the court decreed the term 'issue' did not include the adopted son, and plaintiff in error therefore had no interest in, and was not entitled to share in Trust B, and the natural son of Richard...