Pope Ex Rel. Fisk v. First National Bank in Dallas

658 S.W.2d 764, 1983 Tex. App. LEXIS 4937

• Court: Court of Appeals of Texas
• Decided: September 7, 1983
• Docket: 05-82-00499-CV
• Status: Published

Opinions

SPARLING, Justice.

Appellant, Barbara Pope, as next friend of her son, Michael Fisk, sued appellees, First National Bank, Dian Hays Pingree and Linda Pope Narby Branch, seeking the benefits of a trust. First National was trustee of the disputed trust until its termination by the death of Joe Pope — the beneficiary of the trust. Upon termination, the corpus of the trust was deposited to the account of two additional trusts in which Pingree and Branch are the beneficiaries. A jury determined that Michael Fisk was not the adopted son of Joe Pope. Mrs. Pope claimed that Fisk was Joe Pope’s son — and beneficiary — under the doctrine of adoption by estoppel. In three points of error, appellant alleges that the jury’s verdict is against the great weight and preponderance of the evidence. Appellee avers by counterpoint that even if Michael Fisk was the son of Joe Pope under the theory of adoption by estoppel, that appellees are not bound by the adoption. We agree with appellee’s counterpoint and accordingly affirm.

The trust in dispute was established by the will of Ruby L. Kiest for the benefit of her nephew, Joe Pope. Ruby Kiest also bequeathed two trusts for the benefit of her nieces, appellees Pingree and Branch. Joe Pope’s trust provided that upon his death the income from the trust should be paid to his descendants. It further provided that if Joe Pope should die with no descendants the trust would terminate and all of the funds in the trust would be delivered to the trustee to be equally divided between the Pingree and Branch trusts.

Joe Pope, at the time of his death on February 7, 1976, was living with Barbara Fisk Pope and her son, Michael Fisk. Barbara Pope alleged that while she lived with Joe Pope, he agreed to adopt Michael Fisk and that Michael Fisk gave Joe Pope love and affection in reliance on this promise.

The descriptive phrase, “adoption by estoppel,” is a shorthand method of saying that because of the promises, acts and conduct of an intestate deceased, those claiming under and through him are es-topped to assert that a child was not legally adopted or did not occupy the status of an adopted child. Heien v. Crabtree, 369 S.W.2d 28, 30 (Tex.1963). The doctrine has long been recognized by Texas courts. E.g., Cubley v. Barbee, 123 Tex. 411, 73 S.W.2d 72 (1934); Cheney v. Coffey, 131 Tex. 212, 113 S.W.2d 162 (1938); Jones v. Guy, 135 Tex. 398, 143 S.W.2d 906 (1940). This doctrine is also recognized by statute. The Probate Code defines “child” as: “includes an adopted child, whether adopted by any existing or former statutory procedure or by acts of estoppel,” Tex.Prob.Code Ann. § 3(b) (Vernon 1980) (Emphasis supplied). Texas case law teaches that adoption by estoppel prevents only the adoptive parent and those in privity with him from denying the adoption. Jones v. Guy, 135 Tex. 398, 143 S.W.2d 906 (1940); Pouncy v. Garner, 626 S.W.2d 337, 341 (Tex.App.Tyler 1981, writ ref’d n.r.e.). See Heien v. Crabtree, 369 S.W.2d 28, 31 (Tex.1963), Asbeck v. Asbeck, 362 S.W.2d 891, 893 (Tex.Civ.App.Texarkana) aff’d 369 S.W.2d 915 (Tex.1963).

“Privity," is defined as the legal relationship between parties incident to succession on the part of one party to an estate or interest formerly held by the other. Further, under adoption by estoppel, only the adoptive parents and their privies are estopped to deny the adoption. The estop-pel to deny the adopted status does not operate or work against collateral kindred not in privity with the adoptive parents. A child adopted by estoppel does not inherit from collateral kindred, as there is no privity of estate between such kindred and the adoptive parents. Poucy v. Gardner, 626 S.W.2d at 341, 342 citing Freeman on Judgment § 438; 72 C.J.S. Privity (1951), 34 Tex.Jur.2d Judgments § 402 (1962); Asbeck v. Asbeck, 362 S.W.2d at 893.

In the present case, the alleged adoptive parent, Joe Pope, is dead and his estate is not an issue in this action. The corpus of the disputed trust did not pass by or through the estate of Joe Pope, it merely passed on the occasion of the death of Joe Pope. Thus, Michael Fisk, even if adoption by estoppel was proved, could not recover against any of the appellees because they were not in privity with Joe Pope.¹ We therefore hold that as a matter of law Michael Fisk is not entitled to recover under the doctrine of adoption by estoppel.

All points of error are overruled. Appel-lee’s counterpoint number one is sustained, and the judgment is affirmed.

1 . We do not conclude, as the concurrence infers, that a child adopted by acts of estoppel would not “inherit from and through his intestate adoptive parents the same as would a natural child.”