Thompson v. Waits

• Decision Date: 28 May 1913
• Citation: 159 S.W. 82
• Parties: THOMPSON et al. v. WAITS.
• Court: Texas Court of Appeals

159 S.W. 82

THOMPSON et al. v. WAITS.

Court of Civil Appeals of Texas. Austin.

May 28, 1913.

Rehearing Denied July 5, 1913.

Appeal from District Court, Falls County; Richard I. Munroe, Judge.

Action by P. V. Thompson and others against J. M. J. Waits. From a judgment for defendant, plaintiffs appeal. Reversed and remanded.

Scott & Ross and Spivey, Bartlett & Carter, all of Waco, and Tom Connally, of Marlin, for appellants. O. L. Stribling, of Waco, for appellee.

Findings of Fact.

JENKINS, J.

Appellants brought suit to recover an interest in certain lands in Falls county, Tex., alleging that said lands were formerly owned by J. M. Jackson and wife, Eleanor Jackson; that J. M. Jackson died in 1898, leaving a will, which was duly probated, by which he bequeathed all of his property to his said wife; that Eleanor Jackson died intestate April 8, 1910, leaving surviving as her only heirs her brothers, P. V. and J. M. Thompson, four children of a deceased sister, and one grandchild of said sister, viz., appellee herein; that by reason of said facts appellants P. V. and J. M. Thompson were each entitled to one-third of said land; that the four children of said deceased sister and appellee were each entitled to one-fifteenth thereof. Appellants further alleged that appellee had taken exclusive possession of said land, and was claiming the same in fee simple, by virtue of the following instrument:

"The State of Texas, County of Falls. Know all men by these presents: That we, J. M. Jackson and wife, Eleanor Jackson, of said state and county, have by this instrument adopted J. M. Jackson Waits, the child of C. G. and Ella Waits, now of the age of five years (5) as our legal heir, hereby conferring upon him all the rights and privileges both in law and equity appertaining to this act of adoption. However, it is intended by this instrument, and is the purpose of the said J. M. Jackson and wife in adopting the said J. M. Jackson Waits to make him a coheir with their legal heirs, with the understanding that the said J. M. J. Waits is hereby made an heir to one thousand ($1,000) dollars more of our property than are the others and remainder of our legal heirs, and is hereby expressly provided that the property coming to the said J. M. J. Waits as our adopted heir is, in the case of the death of us, the said J. M. Jackson and wife, or the death of the said J. M. Jackson Waits to be and remain forever free from the possession or control of the said C. G. Waits, father of the said J. M. J. Waits and in the event of the death of said J. M. J. Waits after the death of ourselves, his property to revert to the other of our legal heirs. Witness our hands this 24th day of February, A. D. 1887. J. M. Jackson, Eleanor Jackson."

"The State of Texas, County of Falls. Before me, J. H. Freeman, a justice of the peace and ex officio notary public in and for Falls county, Texas, on this day personally appeared J. M. Jackson and Eleanor Jackson, wife of J. M. Jackson, personally known to me to be the persons whose names are subscribed to the foregoing instrument, and acknowledged to me that they executed the same for the purposes and consideration therein expressed; and the same Eleanor Jackson, wife of the said J. M. Jackson, having been examined by me privily and apart from her husband, and having the same by me fully explained to her, she, the said Eleanor Jackson, acknowledged such instrument to me to be her act and deed, and she declared that she had willingly signed the same for the purposes and consideration therein expressed, and that she did not wish to retract it. Given under my hand and seal of office, this 12th day of April, A. D. 1887. J. A. Freeman, Justice of the Peace and Ex Officio Notary Public, Falls County, Texas."

That no children were ever born to said J. M. and Eleanor Jackson, and that at the time of the execution of said instrument they had reached an age at which they did not expect any children to be born to them. Said instrument was recorded in the office of the county clerk of Falls county April 20, 1887. Appellees excepted to said petition upon the ground that said written instrument showed that appellee was the owner in fee simple and entitled to the possession of the land herein sued for. The court sustained this exception, and, appellants declining to amend, have brought this action of the trial court before us, on this appeal, for review.

Opinion.

1. The law with reference to adoption, in so far as applicable to this case, is as follows (Acts 1849-50, c. 39; R. S. [1895] arts. 1, 2):

"Article 1.—How Heir Adopted.—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.

"Art. 2.—Rights of Adopted Heir.—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."

2. The contentions of appellee, as we gather from the brief and argument of his able counsel, are substantially as follows: (1) The first part of said instrument is a full compliance with our statute with reference to adoption; (2) the subsequent part of said instrument should not be construed as evidencing an intention contrary to the first part, for the reason that it is so vague and uncertain that the intention of the makers cannot be deduced therefrom; (3) looking to the whole instrument, it appears that the controlling purpose of the makers thereof was to adopt appellee, and to "confer upon him all the rights and privileges" provided for in our statute of adoption. These contentions have appealed to us with considerable force, and it is with much hesitancy that we have felt ourselves constrained to reject them.

3. If the appellee was adopted, as provided for in said statute, he is, under the facts of this case, the only heir of Eleanor Jackson, and the owner in fee simple of the land in controversy, the interest of J. M. Jackson in said land having been bequeathed to said Eleanor Jackson. If the first part of said instrument be alone looked to, it constitutes a full compliance with our statute as to adoption.

4. A primary rule of construction of a written instrument is that, if possible, effect must be given to every clause thereof. Hopkins v. Hopkins, 103 Tex. 15, 122 S. W. 16; Hancock v. Butler, 21 Tex. 806; Smith v. Brown, 66 Tex. 545, 1 S. W. 573; Moore v. Waco, 85 Tex. 206, 20 S. W. 61-63. Hence it is our duty not to reject the second clause of said instrument, if under a reasonable construction of the whole instrument both clauses can be given an effect that will harmonize the apparent contradictions. In order to determine whether or not this can be done, we must look to the entire instrument, in the light of the surrounding circumstances. Faulk v. Dashiell, 62 Tex. 642, 50 Am. Rep. 542; Hearne v. Gillett, 62 Tex. 26; Hunt v. White, 24 Tex. 652; McHugh v. Gallagher, 1 Tex. Civ. App. 201, 20 S. W. 1115.

5. Should the apparent contradictions in the second clause be rejected, for the reason that it is manifest that the leading purpose of the makers of said instrument was to adopt appellee as their legal heir, as provided for in our statute? If a contrary purpose is inferable from the second clause, does it appear that such purpose was subsidiary to the main purpose, and therefore should not be given effect? It is a rule of law that where two purposes or intents may be inferred from the language used in a written instrument, and the main purpose of such instrument clearly appears, such main purpose will control. Hancock v. Butler, supra; Parrish v. Mills, 102 S. W. 187, and authorities there cited.

6. But this rule means that where language is used which is...