Lange v. Schulte

276 S.W.2d 889

• Court: Court of Appeals of Texas
• Decided: January 11, 1954
• Docket: 6357
• Status: Published

Opinions

MARTIN, Justice.

This opinion, originally conceived as a dissenting opinion, being adopted 'by each associate justice is rendered as the majority opinion of the court.

Appellee, Martha Bridget Schulte, formerly Bridget Lynch, joined by her husband, Ray Schulte, brought this suit against appellants, Herman Lange and Ester Noble, independent executors of the will of Henry Lange, deceased, and The New Subiaco Abbey, a corporation, and Elizabeth Lange and Mary Lange, sisters of Henry Lange, deceased, devisees under the will of Henry Lange, deceased. Appellee, Martha Bridget Schulte, was originally placed in the home of Henry Lange and wife, Barbara Lange, by the New York Foundling Hospital, under a written indenture. Appel-lees’ cause of action is founded on the theory that under this written indenture Martha Bridget Schulte was entitled to receive all of the property of Henry Lange and wife, Barbara Lange, on their death. Such theory is based on appellees’ contention that the indenture provided Bridget Lynch should receive a natural child’s part of the Lange estate and such part would be all of the estate of the Langes as she was by adoption their only child. From a judgment decreeing specific performance of such indenture or contract and divesting all the estate of Henry Lange out of appellants and investing the same in appellee, Martha Bridget Schulte, appellants perfected an appeal.

Appellants’ Point 1 asserts that the contract in issue in this cause shows upon its face that in the event the Langes legally adopted appellee, Bridget Lynch, before she reached the age of eighteen years, they did not contract to devise their property to her, and it being admitted that they did so ■adopt her, the trial court erred in overruling appellees’ Special Exception No. 1 and entering judgment awarding the property •of the Langes to her. This point is well taken and the exception should have been ■sustained in the trial court under the principles hereinafter set forth.

The language of the contract, or indenture, is plain and unambiguous and the law involving the construction of such instrument is as follows: “ ‘Through all the rules governing construction of instruments, there runs the central thought of ascertaining the real intention of the parties.’ ⅜ * * the intention, ‘if possible,’ should be gathered from the instrument itself.” Brown v. Payne, 142 Tex. 102, 176 S.W.2d 306, 308.

It will not be necessary to quote the •entire contract or indenture. The first seven numbered provisions of the contract will be passed over briefly with the observation that such paragraphs reveal clearly that the intent of the parties to the contract was merely to secure to the minor child the same care, education, and treatment as if she were in fact the child of Henry Lange and Barbara Lange. In the paragraphs dealing with the care of the child during minority there is not a single provision as to securing to the minor any property right. As the issue on this appeal as to property rights arises out of the construction of Paragraph VIII of the indenture, the same will be quoted:

“VIII. And the parties of the second part further agree, that, if said child be not returned to the party of the first part when she attains the age of Eighteen years, or shall not have been so returned before she shall have attained such age and this Agreement of Indenture be duly cancelled and annulled by the consent of both parties, or if said child be not legally adopted by said parties of the second part before said child attain such age then the parties of the second part, in consideration of this Indenture and of being permitted by the party of the first part to keep such child, shall be deemed to have elected to keep, treat and maintain said child as if it were their own natural and legitimate child. And the parties of the second part further agree that, if the parties of the second part shall die intestate, said child shall inherit and succeed to such share of the property, real and personal, of which the parties die seized and possessed as would have descended or would have been distributed to said child if she had been the natural and legitimate child of the parties of the second part; and that if the parties of the second part shall die leaving a last will and testament, such will shall contain a provision or provisions, giving, bequeathing and devising to said child at least as large a share of the estate, real and personal, of the testator, as she would have received if said testator had died intestate and said child had been the natural and legitimate child of the parties of the second part.”

It should be first observed that Bridget Lynch was adopted by the Langes when she was seven years of age and that the indenture does not even purport to deal with the rights of an adopted child in any respect. Nor is there any provision in the contract that even tends to express a requirement that the Langes either keep or adopt Bridget Lynch. Paragraph VIII, under correct rules as to composition, deals with only one subject — the rights of Bridget Lynch “if said child be not returned” and “if said child be not legally adopted”. The parties executed the indenture to assure to Bridget Lynch the status of a natural and legitimate child of the Langes and her right to a portion of their estate in the event she was not returned to the hospital and was not adopted by the Langes. It would be a strained judicial construction to decree that Paragraph VIII embodies two separate and distinct subjects and that the provisions in the paragraph as to property 'had no relation whatever to the principal subject therein, to wit: The rights of the child “if said child was not returned * * * or if said child be not legally adopted”. The language of the provisions as to property cannot reasonably be construed as unconditionally binding the Langes to devise all, or any part of, their property to Bridget Lynch in the event of her adoption by the Langes.

Although the contract must be construed solely from the plain and unambiguous language used therein it will not be amiss to examine the indenture in the light of the construction placed thereon by all the parties at interest. “In this instance the acts of the parties indicated the construction mutually placed upon the contracts at the time, including the acts done in their performance, and same are entitled to great if not controlling weight.” Henshaw v. Texas Natural Resources Foundation, 147 Tex. 436, 216 S.W.2d 566, 570.

The indenture was executed on the 7th day of August, 1922. Thereafter, on the 2nd day of July, 1934, Barbara Lange duly executed a will disposing of her estate as follows, “I give all my estate, both real and personal, or mixed, and whereever situated to my beloved husband, Henry Lange.” This will evidences the fact Barbara Lange did not recognize that she had contracted to devise her entire estate, or any part thereof, to Bridget Lynch Schulte. The record reveals that following the death of Barbara Lange on or about August 9, 1949, her will was admitted to probate and there is no evidence that appellees contested the probate of the will. Nor did appel-lees contest the title to the realty vested in Henry Lange under the will on the theory that Barbara Lange had executed the indenture binding her to devise her estate to Bridget Schulte. Following the probate of this will, appellees accepted a warranty deed to 320 acres of the estate from Henry Lange, a single man who executed the deed of conveyance to appellees “individually and as independent executor and sole dev-isee under the will of Barbara Lange, deceased.” Following these transactions,, Henry Lange also revealed his interpretation of the indenture. He did not understand the indenture as binding him to devise his entire estate to the adopted child as he devised his estate to the Abbey and to his. two sisters and his will contained the following provision: “I have heretofore given to my children certain property during their lifetime and I, therefore, intentionally omit them from this, my last will and testament except that which may be inherited or descend to them in the event my sisters,, above named, predecease_ me.”

The above undisputed facts should be enough to conclude the issue as to the construction of the indenture and the intent of the parties thereto. In fact, appellees should be concluded,¹ if not estopped, by the acceptance of the warranty deed alone. But, appellees’ principal contention is that the following quoted provision as to property has no relation to the indenture provision contained in the same paragraph, to wit: “if said child be not legally adopted”. This issue will be discussed briefly. Ap-pellees’ contention is that the following clause applies unconditionally and is not contingent upon any other provision of the contract, “And the parties of the second part further agree, that if the parties of the second part shall die intestate, said child shall inherit and succeed to such share of the property, real and personal, of which the parties die seized and possessed as would have descended or would have been distributed to said child if she had been the natural and legitimate child of the parties of the second part; * * ” Bridget Schulte was adopted by the Langes and as a matter of law would have inherited, under the Statutes of Descent and Distribution, that part of the estate as would have been distributed to a legal heir of the Langes. Harle v. Harle, 109 Tex. 214, 204 S.W. 317, Syl. 4. When the Langes adopted Bridget Lynch, the clause as quoted was therefore mere surplusage and had no application under the proven facts in the record. The parties are deemed to have contracted with knowledge of the law and it is a sound conclusion that the provision as to Bridget Lynch’s rights in and to the property if the Langes died intestate had reference solely to the contingency “if said child be not legally adopted”. At least, it is an inescapable conclusion that when Barbara Lynch was adopted by the Langes any necessity for the above quoted provision as to her right of inheritance should the Langes die intestate ceased to be of any importance in securing any right to Bridget Lynch not already possessed under the laws of the State of Texas. Of like application is the provision as to the execution of a will by the Langes. The provisions of the Statutes of Texas as to adoption have never prevented anyone from disposing of his property by will nor are the Statutes of Descent and Distribution operative where property is devised by a valid will.

Under the interpretation of the contract, as above outlined, it must be conceded that appellee, Bridget Lynch Schulte, would receive all the rights of a natural and legitimate child of the Langes if adopted. Bridget Lynch was adopted and thereby was fully protected by the laws of adoption as to her right of inheritance from the Langes. If she had not been adopted it was intended by the parties that she would be protected by the indenture. In re Steven’s Will, 192 Misc. 179, 78 N.Y.S.2d 868, affirmed 274 App.Div. 1024, 86 N.Y.S.2d 480.

A brief survey should be made of the rights of the parties under the construction given the indenture in the trial court and as asserted by appellees on this appeal. Under such construction, Barbara Lange could not have left any part of her estate to her surviving husband in their declining years nor could her husband have left any part of his estate to her but each was required, upon executing a will, to devise all of his or her estate to the adopted child. Therefore, the rights of the adopted child were superior even to the rights of the surviving wife or husband. Further, under such construction, the adopted child, had any children been born to the Langes, would have had a superior right to the estate of the Langes over such natural children. The Langes were not required to devise by will any property to a natural child of the marriage nor would a natural child take under the Statutes of Descent and Distribution in the event a will had been executed by the Langes. Thus the adopted child was secured in her inheritance in any event by the indenture if the above construction is accepted.

Under the construction given the indenture as discussed in the preceding paragraph, few husbands or few wives would be willing to execute such an indenture whereby they agreed to devise all their property to an adopted child and thereby wholly disregard any right of the surviving wife or husband. Homeless children would have little hope of adoption under an indenture that gave an adopted child paramount rights over the surviving husband or wife and also over the natural children born to the marriage. Nor would the family relationship exist long under such unnatural conditions. Such a situation “tends, to the destruction of one of the finest relations of human life, to the subversion of the family tie”. Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 1118, 15 A.L.R. 216.

The construction placed on the indenture in the trial court not only brings into effect the results as above detailed but also attributes to the foundling hospital a penurious and grasping nature on behalf of the-adopted child that is not born out by the indenture in any respect. The hospital in no manner sought to secure to the child any property rights whatsoever during minority and the Langes had the free right to-return the child on or before she attained the age of eighteen years. It is not a reasonable construction of the indenture that the hospital intended to secure to the child on maturity greater rights than in minority. Further, there is not a single provision ini the indenture binding the Langes to either keep or adopt the child — the hospital wisely left this contingency to the love and affection developing between the parties. The wisdom of the contract is proven by the fact of adoption and by the further fact that Henry Lange conveyed to the adopted child 320 acres of land prior to the execution of his will. - .

In conclusion, a further material issue should be discussed. At the tim$ the contract was drawn, the foundling hospital had the legal right as to the full custody, control, and care of Bridget Lynch— when Bridget Lynch • was adopted by the Langes such right of custody, control, and care of the child passed from the hospital to the Langes under the provisions of the laws of Texas as to adoption. It is a sound conclusion that when the full right of care, custody, and control of Bridget Lynch passed from the hospital to the Langes under the provisions of the laws of Texas as to adoption that such child’s rights as to inheritance likewise became fixed by the same laws. It was never the intention of the parties to the indenture that the Langes should have the full care, control, and custody of Bridget Lynch on adopting her as their child while the property of the Langes and the adopted child’s right of inheritance to the same were governed solely by the indenture executed by the Langes with the foundling hospital. At least, such intention was never evidenced 'by any action of .the parties in regard to the indenture prior to this suit.

Appellants’ Point 1 presenting the issue 'hereinabove discussed is sustained and the judgment of the trial court is reversed and judgment rendered for appellants with the result that the estate of Henry Lange shall •pass to The New Subiaco Abbey and to his .surviving blood sisters as legally provided by his will duly filed for probate.

1 . Funk & Wagnalls New Standard Dictionary (1927), “conclude”, Page 549, Sec. 5.