In re Ray Ellison Grandchildren Trust Dated March 9, 1982--Appeal from Probate Court No 1 of Bexar County

DISSENTING OPINION

No. 04-06-00704-CV

IN RE RAY ELLISON GRANDCHILDREN TRUST

From the Probate Court No 1, Bexar County, Texas

Trial Court No. 2003-PC-1699

Honorable Polly Jackson Spencer, Judge Presiding

Opinion by: Karen Angelini, Justice

Dissenting Opinion by: Rebecca Simmons, Justice

Sitting: Catherine Stone, Justice

Karen Angelini, Justice

Rebecca Simmons, Justice

Delivered and Filed: April 2, 2008

In this case, the old adage bad facts make bad law is particularly true. The record paints an unattractive picture of Ray Ellison, Jr. ( Ray Jr. ) and the Lindner boys and the motive surrounding their adoption. The record before the trial court was replete with evidence that the adoption of the adult Lindner boys by Ray Jr. was merely a way in which Ray Jr. could attempt to exercise control over his father s trust. There was evidence that Ray Jr. was not only estranged from his father when the trust was created, but estranged from his daughters and niece, the beneficiaries of the trust. The issue in this appeal is whether we (1) apply the law and reward what could be characterized as unworthy beneficiaries or (2) neglect established precedent and impose our own intent on the inter vivos, irrevocable trust to exclude the unworthy contenders to the Ray Ellison, Sr. fortune. I choose the former and thus, must respectfully dissent.

I agree with much of the majority opinion; we part ways, however, over the status of adopted adults in 1982 and whether the stranger to the adoption rule was in effect in 1982, when the Trust was created. I believe that in 1982, adopted adults were the sons or daughters of their adoptive parents for all purposes, including inheriting from and through the adoptive parents.

The controlling law in effect in 1982, when the Trust was created, provided:

On entry of the decree of adoption, the adopted adult is the son or daughter of the adoptive parents for all purposes, and of the natural parents for inheritance purposes only. However, the natural parents may not inherit from or through the adopted adult.

Acts of 1975, 64th Leg., R.S., ch. 475, 43, 1975 Tex. Gen. Laws 1253, 1270.

The meaning of the statute is clear - that adopted adults are the sons or daughters of their adoptive parents for all purposes. Although Arleene and Darleene Ellison argue that this 1975 amendment did not abrogate the stranger to the adoption rule, the Texas Supreme Court determined otherwise in Lehman v. Corpus Christi Nat l Bank, 668 S.W.2d 687 (Tex. 1984). In Lehman, the question before the court was whether an adopted adult qualified as a descendant of his adoptive father within the terms of his grandfather s will. Id. at 688. The will expressly defined descendants as including the children of the person designated, and the issue of such children, and such children and issue shall always include those who are adopted. Id. (emphasis added). Thus, those adopted as children were unambiguously defined as descendants, but the issue was whether children . . . who are adopted included those adopted as adults. The supreme court reasoned that adopted adults were included because the will s definition of descendants drew no distinction between natural and adopted children, if adopted adults are incapable of taking, adult natural children would likewise be excluded from the class of beneficiaries. Id. The court expressly rejected the stranger to the adoption rule by stating:

Keith Lehman would have us announce a presumption that adopted adults are not included within the beneficiaries of a class gift in a testamentary instrument of someone other than the adoptive parents. We decline to do so. This presumption would be a form of the stranger to the adoption rule, which has now been rejected in Texas, see Vaughn v. Gunter, 458 S.W.2d 523 (Tex. Civ. App. Dallas), writ ref d n.r.e., 461 S.W.2d 599 (Tex. 1970), as well as in a majority of American jurisdictions considering the question. See Elliott v. Hiddleson, 303 N.W.2d 140, 144 (Iowa 1981). Any such presumption would be at best only a rule of construction that would yield to a clear expression of contrary intent. Shriner s Hospital for Crippled Children v. Stahl, 610 S.W.2d 147 (Tex. 1980). Hence, the proposed rule would be ineffective in this case in which the class of beneficiaries unambiguously includes [the adopted adult]. Moreover, such a rule would be contrary to the public policy of this state.

Id. at 688 (emphasis added).

While I agree that the language in Lehman is dicta and that it was decided two years after the Trust was created, I cannot ignore that the supreme court in Lehman interpreted the 1975 statute at issue as having abrogated the stranger to the adoption rule. The supreme court goes on to point out that the stranger to the adoption rule had likewise been rejected in a majority of American jurisdictions and was contrary to the public policy of this state. Id. Although the application of Lehman to this case may seem to cause an inequitable result, the failure to recognize that the stranger to the adoption rule was abrogated in 1975 may have serious unintended consequences. Any practioner reading Lehman prior to this decision would have concluded that the stranger to the adoption rule was abrogated by the 1975 statute and advise her clients accordingly. Yet, under the reasoning of the majority opinion, the stranger to the adoption rule, referred to as bad public policy under Lehman, was not abrogated until some twenty years later, in a recodification of the statute in 1995.[1] Lehman has been the law in this area for the past twenty-five years and I would apply it to this case.

Conclusion

Thus, by using the 1975 statute as a constructive aid, I cannot conclude that Ray Ellison, Sr. intended to preclude adult adoptees as descendants of his son, Ray Ellison, Jr. Therefore, I cannot agree to affirm the trial court s summary judgment. This case presents a very unfortunate family dispute. The record reflects that the Lindner boys were adopted by Ray Jr., in part, to allow Ray Jr. to exercise control over his father s trust. Although the Lindner boys do not look like worthy beneficiaries, I would not change twenty-five years of law to refute their claims.

Rebecca Simmons, Justice

[1] The legislative history suggests no substantive change was made to the 1975 statute, and that it was merely being renumbered. Recodification of the Family Code: Hearing on Tex. H.B. 655 Before the House Committee on Justice & Family Issues; 74th Leg., R.S. (February 8, 1995); Recodification of the Family Code: Hearing on Tex. H.B. 655 Before the Senate Committee on Jurisprudence; 74th Leg., R.S. (April 4, 1995).