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McGehee v. Edwards

Court: Supreme Court of Virginia
Date filed: 2004-06-10
Citations: 597 S.E.2d 99, 268 Va. 15
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6 Citing Cases

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

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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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