Adopted child waited too long to claim inheritance, justices rule

By The SE Texas Record | Jul 23, 2009

Constance Bordages Freuden waited a few years too long to claim a portion of her grandmother's estate, appeals judges in Beaumont decided on July 16.

Three Ninth District judges agreed that a statute of limitations ran out on Freuden's bid for a place in the will of Maria Bordages.

They affirmed Jefferson County District Judge Bob Wortham, who granted summary judgment to Hibernia National Bank as trustee of the estate.

Freuden alleged in 2004 that Hibernia violated its fiduciary duty by failing to recognize her as a beneficiary, but her right to sue expired in the last century.

Texas law sets a four-year limit on claims against fiduciaries, and Hibernia started handling the estate in 1994.

"Freuden knew or should have known of the trustee's alleged wrongdoing within a year after Maria's will was probated," Ninth District Chief Justice Steve McKeithen wrote.

Phillip Bordages, one of Maria's 13 children, adopted 6-year-old Constance and her brother Sidney in 1971 after marrying their mother.

Phillip died in 1973. His adopted children and two biological children, Thomas and Claire, survived him.

Maria Bordages prepared a will stating that Phillip pre-deceased her and left Thomas and Claire as survivors.

The will created a trust of real property and directed the trustee to allocate a portion to each child and to the "living issue of the deceased child."

The will defined "issue" as children legally adopted under age 8.

Maria died in 1994 and Hibernia started distributing the trust.

When Freuden sued, Hibernia responded that she didn't qualify as a beneficiary.

Even if she qualified, the bank argued, the statute of limitations had run out.

Freuden claimed it didn't run out because she discovered the wrongdoing later.

She claimed each breach of fiduciary duty gave rise to a new cause of action.

She argued that the will was ambiguous about whether she was a beneficiary.

In a deposition she testified that she knew Maria died and she attended the funeral.

Freuden said that a year or so after Maria's death her mother mentioned that Thomas and Claire inherited some money.

She said she had a "passing thought" about whether she was a beneficiary.

Judge Wortham ruled in Hibernia's favor and the Ninth District affirmed him.

"Freuden admits that she had constructive notice of the contents of Maria's will," McKeithen wrote.

The statute of limitations started running when she knew Thomas and Claire received payments, he wrote.

"Each distribution by the trustee to the beneficiaries did not create a separate cause of action and a new statute of limitations for Freuden," he wrote.

Justices Charles Kreger and David Gaultney agreed.

Gaultney wrote in a concurring opinion that Freuden acquiesced in the bank's construction of the will.

"Appellant's silence over many years would ordinarily be understood as agreement with the construction of the will followed by the trustee," he wrote.

Scott Mann Jr. and Jerae Carlson represented Hibernia. George Chandler and Darrin Walker represented Freuden.

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