joined by JUSTICE HAMILTON, dissenting.
I am unable to agree with the holding that Jeffrey Hermann Wessels is not entitled to any part of the three trust estates.
As I see it, the provision for vesting of the trust on the death of John Clark Cutrer leaves a contingent remainder “to *176John Clark Cutrer’s child or children, share and share alike.” Guilliams v. Koonsman, 154 Tex. 401, 279 S.W. 2d 579, 583, 57 A.L.R. 2d 97. This is a vesting of the trust property in existence at the time of the death of John Clark Cutrer in a certain class of people, to wit: “child or children” in existence at the time of his death. The members composing that class are to be determined as of the date of the death of the said John Clark Cutrer. Breckinridge v. Skillman’s Trustee, 330 S.W. 2d 726 (Ct. App., Ky., 1959) Edmands v. Tice, 324 S.W. 2d 491 (Ct. App. Ky., 1959); Commerce Trust Company v. Weed, 318 S.W. 2d 289 (Sup. Ct. Mo., 1958). Prior to his death none of that class had any right to possession or enjoyment of the trust property. At the time the three trusts were created, John Clark Cutrer had no children. If it is construed that those who take were determined as of the date of the execution of the trust then no child or children of John Clark Cutrer could take for the reason that he had no children on such date.
I think that the same law is applicable to these trusts as would be applicable to a will containing the same language. In 44 Tex. Jur. 796, § 228, it is stated that a gift to “heirs” of A should be “taken primarily to mean that the takers are those who correspond with the descriptive term at the time of A’s death.” See authorities cited in support of this proposition.
I think that the words “heirs of the body,” as used in the instrument modifying Trust No. 173 on September 23, 1946, and referring to the heirs of the body of John Clark Cutrer should be construed to mean child or children. Federal Land Bank of Houston v. Little, 130 Texas 173, 107 S.W. 2d 374, and authorities therein cited.
John Clark Cutrer died after the 1951 amendment (46a, § 9, V.A.T.C.S.) to the adoption statute. In my opinion, there is no doubt that the 1951 amendment includes Jeffrey Hermann Wessels as a child and he should therefore take his share.
A study of the legislative history of adoption statutes will show that the Legislature has consistently sought to make the adopted child, or children, occupy exactly the same position m the family as the child, or children, actually born to the adoptive parents, and that the language of the 1951 Act makes no distinction between the adopted child and the natural child.
I would reverse the judgments of both courts below and render judgment allowing Jeffrey Hermann Cutrer to take as a child of John Clark Cutrer.