Present: All the Justices
WILLIAM CHARLES MCGEHEE, ET AL.
v. Record No. 031595 OPINION BY JUSTICE ELIZABETH B. LACY
June 10, 2004
H. ROBERT EDWARDS, ET AL.
FROM THE CIRCUIT COURT OF CLARKE COUNTY
John R. Prosser, Judge
In this appeal, we consider whether the term "direct
lineal descendants" used in certain inter vivos trusts created
prior to 1978 includes adopted persons.
In 1929, 1930, and 1931, the seven children of Dr. and
Mrs. Montfort Jones established eleven inter vivos trusts (the
Jones Family Trusts). Each trust created a class of
beneficiaries described as "direct lineal descendants" of
either the grantor's parents, the grantor's brothers and
sisters, or the named sons of the grantor. There are
presently approximately 142 beneficiaries of the Jones Family
Trusts.
On January 11, 2000, H. Robert Edwards and E. E. Laird,
Jr., the Trustees of the Jones Family Trusts (Trustees), filed
a bill of complaint requesting that the trial court
"adjudicate who are, or may be direct lineal descendants under
each of the above Trusts and specifically whether children
born out of wedlock constitute direct lineal descendants."
Defendant-beneficiary Amy P. Davis filed an answer which
included a request that the court decide whether "direct
lineal descendants" includes children of direct lineal
descendants who are legally adopted by direct lineal
descendants or born to them through "assisted conception" as
defined in Code § 20-156.
The trial court appointed guardians ad litem for persons
adopted by lineal descendants, persons born out of wedlock to
lineal descendants, persons born to lineal descendants through
assisted conception, and legitimate minor beneficiaries and
parties unknown. Davis and the guardians ad litem filed
memoranda of law addressing one or more aspects of the
following question: whether "direct lineal descendants"
includes illegitimate children, adopted children, or children
born by means of "assisted conception" as defined in Code
§ 20-156 et seq. No other beneficiaries filed answers to the
bill of complaint, but various beneficiaries, including two of
the appellants here, filed letters with the court expressing
their position on the meaning of "direct lineal descendants."
After considering the pleadings, memoranda, and the
arguments of counsel and the guardians ad litem, the trial
court ruled that the term "direct lineal descendants" in the
Jones Family Trusts included, inter alia, persons legally
adopted by any direct lineal descendant of an individual
referred to in the subject trusts.
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Thereafter, six defendant-beneficiaries – Donald B.
McGehee; Virginia E. McGehee Friend; Harry M. McMillan,
individually and as guardian for William M. McMillan, an
incapacitated person; Fitzhugh L. J. Jackson; Bernard B.
Jones, III; and William C. McGehee (collectively "McGehee") −
jointly filed a "motion for further consideration" by the
trial court. The trial court heard arguments on McGehee's
motion and issued an order on April 8, 2003 denying further
consideration and restating the conclusions of its prior
ruling. We granted McGehee this appeal.
I.
Initially, we address McGehee's assertion that the trial
court's jurisdiction was limited to consideration of whether
the trusts included children born out of wedlock. Davis
raised the issue of adopted children in her answer but did not
serve her answer on the other defendants or otherwise put them
on notice of this issue. McGehee argues that the failure to
put all defendants on notice deprived these defendants of
their opportunity to be heard on the issue and prevented the
trial court from acquiring "in rem jurisdiction of the adopted
person issue."
After reviewing the pleadings, we conclude that the trial
court had jurisdiction to consider the issue of adopted
children. The Trustees' pleadings asked the trial court to
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determine "who are . . . or may be direct lineal descendants"
under the trusts. Although the pleadings referred to a single
category of potential beneficiaries, answering the question,
"who are . . . or may be direct lineal descendants" requires
the determination of the status of more than just that single
category and therefore did not limit the trial court's
determination to that category alone.
II.
We now turn to the substantive issue in this appeal:
whether the trial court erred in finding that adopted persons
constitute "direct lineal descendants" under the Jones Family
Trusts.
We construe the language in inter vivos trusts to
effectuate the intent of the grantors in light of the
surrounding circumstances. NationsBank v. Grandy, 248 Va.
557, 561, 450 S.E.2d 140, 143 (1994); Horne v. Horne, 181 Va.
685, 691, 26 S.E.2d 80, 83 (1943); Mills v. Embrey, 166 Va.
383, 385, 186 S.E. 47, 48 (1936). As the trial court noted,
the Jones Family Trusts contain no exclusionary language
regarding the phrase "direct lineal descendant," and the
parties introduced no evidence concerning the grantors' intent
in using that phrase.
The trial court stated that its decision was guided by a
presumption purportedly adopted by other jurisdictions that,
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if beneficiaries in a class are to be identified over a period
of time, the grantor intends that changes in the law
subsequent to the execution of the trust be grafted onto
provisions in the trust. See Commerce Trust Co. v. Weed, 318
S.W.2d 289, 297-99 (Mo. 1958), Wheeling Dollar Savings & Trust
Co. v. Hanes, 237 S.E.2d 499, 500-01 (W.Va. 1977). Because
the relevant law in Virginia has evolved since the time the
Jones Family Trusts were executed and Code § 64.1-71.1 now
provides that adopted children are presumptively included in
the terms "descendants" or "issue," the trial court concluded
that the term "direct lineal descendants" in the Jones Family
Trusts includes adopted persons.
We disagree with the trial court. The presumption of a
grantor's intent that the trial court adopted has not been
previously considered in this jurisdiction with regard to
construction of trust language. Such a presumption, however,
clearly does not apply when construing language in a will. We
construe the language in a will as if the testator executed it
immediately before death unless the will shows a contrary
intent. Code § 64.1-62; Yancey v. Scales, 244 Va. 300, 303,
421 S.E.2d 195, 196 (1992); Wildberger v. Cheek, 94 Va. 517,
520, 27 S.E. 441, 442 (1897). Construing wills in this
fashion recognizes that the interests of beneficiaries accrue
at the testator's death and protects those interests.
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Consistent with the rule of construction of wills, unless
the language shows a contrary intent, the language of an inter
vivos trust should be construed according to the law in effect
at the time the trust is executed. Such a rule recognizes
that the interests of the trust beneficiaries accrue when the
trust is executed and protects those interests. Such a rule
is also compelled by Code § 1-16, which mandates that "[n]o
new law shall be construed . . . in any way whatever to affect
. . . any right accrued, or claim arising before the new law
takes effect." Accordingly, because the Jones Family Trusts
exhibit no contrary intent, we will construe the phrase
"direct lineal descendants" consistent with the law in effect
at the time of the execution of the trusts.
At common law, adopted persons were not included within
the term "issue," because that term was limited to the
"natural descendants of a common ancestor," Munday v. Munday,
164 Va. 145, 150, 178 S.E. 917, 919, (1935), was synonymous
with lineal descendant, and connoted a "common blood stream."
Fletcher v. Flanary, 185 Va. 409, 415, 38 S.E.2d 433, 435
(1946).
Although the Jones Family Trusts use the phrase "direct
lineal descendant" rather than "issue," nothing in that phrase
suggests a meaning other than "descendants" or "issue," that
is, those who are the natural descendants of a common ancestor
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or who share a common blood stream. Under the common law,
then, the grantor did not include adopted persons in the
phrase "direct lineal descendants" unless such intent is clear
from other parts of the document. See Langhorne v. Langhorne,
212 Va. 577, 578, 186 S.E.2d 50, 51 (1972).
The General Assembly abrogated the common law when it
enacted Code § 64.1-71.1. That statute presumptively includes
adopted persons in the terms "issue" and "descendants" when
used in wills and trusts. By its own terms, however, Code
§ 64.1-71.1 does not apply to trusts executed before 1978.
Thus, the statute does not alter the conclusion that, at the
time of the creation of the Jones Family Trusts, the phrase
"direct lineal descendants" did not include adopted persons.
The guardian ad litem argues,1 however, that at the time
the Jones Family Trusts were executed, former Code § 5533
placed adoptees in parity with natural descendants and that,
absent specific limiting language in the Trusts, adoptees are
entitled to the same rights as other direct lineal
descendants.2 This argument was explicitly rejected in 1935.
1
The guardian ad litem for persons adopted by lineal
descendants was the only appellee that filed a brief in this
Court.
2
Former Code § 5533 provided that an adopted child was
"to all intents and purposes, the child and heir at law of the
person so adopting him or her, . . . entitled to all the
rights, and privileges . . . of a child of such person
begotten in lawful wedlock." Code § 5333 (1924)(The 1930 Code
carried forward the language from the Code of 1924. The
7
Despite the language of former Code § 5333, "an adopted child
does not inherit from the ancestor of the adopting parent.
. . . The only right of inheritance acquired by an adopted
child . . . is that statutory right to inherit from its
adopting parent." Munday, 164 Va. at 149, 178 S.E. at 918-19.
See also Fletcher, 185 Va. at 414, 38 S.E.2d at 435. While
former Code § 5333 may have granted an adopted child certain
rights of inheritance as an "heir at law" of his or her
adoptive parent, it did not grant that child the status of a
"descendant" or "issue."
For the foregoing reasons, we will reverse that portion
of the trial court's decree holding that "direct lineal
descendants" as used in the Jones Family Trusts included
adopted children.
Reversed and final judgment.
JUSTICE AGEE, with whom JUSTICE KEENAN joins, concurring in
part and dissenting in part.
I agree with Part II of the majority opinion and that the
trial court’s decree should be reversed. However, I write
separately because I conclude the trial court did not have
jurisdiction to address whether adopted children are members
of the class of beneficiaries and would reverse on those
current version of this provision is found in Code § 63.2-
1215.).
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grounds. Therefore, I respectfully dissent from Part I of the
majority opinion.
[A] general prayer will support relief only for
those matters placed in controversy by the
pleadings and, thus, any relief granted must be
supported by allegations of material facts in
the pleadings that will sustain such relief.
This rule reflects the principle that although
the power of an equity court is broad, that
power does not permit a court to adjudicate
claims that the parties have not asserted.
Jenkins v. Bay House Assocs., L.P., 266 Va. 39, 44-45, 581
S.E.2d 510, 513 (2003) (citations omitted).
The Trustees’ bill of complaint exclusively pleads that a
“question” had “arisen as to whether children who were born
out of wedlock to the direct lineal descendants . . . also
constitute direct lineal descendants within the classification
of the beneficiaries of each of the respective Trusts.”* The
Trustees then specifically and solely “petition this Court for
advice and direction as to whether the children born out of
wedlock shall be encompassed in that class of beneficiaries
known as the ‘direct lineal descendants’ of each of the
respective Trusts.” No issue regarding adoption is pled,
mentioned or implied in the bill of complaint and the order of
*
Neither McGehee, or any party below, objected to the
trial court’s adjudication concerning the rights of children
born to direct lineal descendants through “assisted
conception.” I therefore do not address an issue not raised
by the parties.
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publication contained no mention of adoption as a possible
matter for adjudication by the trial court.
It is clear from the bill of complaint that no assertion
was made regarding the status of adopted children.
Accordingly, the generic and general terms of the prayer for
relief within the bill of complaint cannot and do not open the
door for matters not otherwise pled, such as the status of
adopted children. Id.
If a defendant-beneficiary wished to pursue an
adjudication of the status of adopted children under the
Trusts, chancery procedure required it be raised by cross-bill
under Rule 2:13 or 2:14, or in a separate action. The fact
that Davis raised the issue of adoption in her answer does not
confer jurisdiction upon the trial court to adjudicate that
issue unless the trial court enters an order treating the
answer as a cross-bill and requiring compliance with Rules
2:13 and 2:14. Shevel's, Inc. v. Southeastern Assocs., Inc.,
228 Va. 175, 184, 320 S.E.2d 339, 344 (1984). No such order
was entered in this case.
For these reasons, I would hold the trial court did not
acquire jurisdiction to consider whether children adopted by
direct lineal descendants are included as beneficiaries under
the Trusts and I would reverse the trial court’s judgment on
that basis.
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