Bradford v. Johnson , 237 N.C. 572 ( 1953 )

75 S.E.2d 632 (1953) 237 N.C. 572

BRADFORD et al.
v.
JOHNSON et al.

No. 451.

Supreme Court of North Carolina.

April 29, 1953.

J. Francis Paschal, guardian ad litem, appellant.

Joyner & Howison, Raleigh, for Marion F. Wyatt, Jr., appellee; W. T. Joyner, Jr., Raleigh, guardian ad litem, appellee; Joseph C. Moore, Jr., Raleigh, guardian ad litem, appellee; James H. Pou Bailey, Raleigh, guardian ad litem, appellee.

Mitchell, Capron, Marsh, Angulo & Cooney, New York City, and Joseph B. Cheshire and Joseph B. Cheshire, Jr., Raleigh, for plaintiff, appellee.

DENNY, Justice.

The plaintiff seeks the advice and instruction of the Court as to the rights and interests of all persons, born and unborn, in the residuary trusts created by the will of John M. W. Hicks, particularly as to the rights therein of any child heretofore or hereafter adopted by any of the nieces or nephews of the testator, or of any child heretofore or hereafter adopted by any child of any of the nieces or nephews of the testator. This advice and instruction is sought not only for the guidance of the trustee in distributing the corpus of the trust which was terminated by the death of John Hicks Johnson, but in order that the trustee may be able to distribute the corpus of the eleven remaining trusts as they terminate, without the necessity for further litigation with respect to questions raised in this action. Therefore, we think the appeal properly presents for determination these questions:

(1) Is Marion F. Wyatt, Jr., the child of Marion F. Wyatt (a nephew of the testator), within the meaning of the word "children" as used in Item Seven of the testator's will and, therefore, a member of the class designated to take per capita in the distribution of the corpus of the trust which terminated upon the death of John Hicks Johnson?

(2) Was it the intent of the testator to include any child or children who might be adopted by any of his nieces or nephews after his death, within the class designated as the surviving children of his nieces and nephews, and thus enable such adopted child or children to take per capita in the distribution of the corpus of the respective trusts terminating after the adoption of such child or children?

(3) Does the word "issue" as used in Item Seven of the will include Mary Rennie Newbold and her issue and any other child who may hereafter be adopted for life by any child of any of the testator's nieces or nephews and its issue?

The statute under which Marion F. Wyatt, Jr., was adopted provided that the order of adoption should have "the effect forthwith to establish the relation of parent and child between the petitioner and the child during the minority or for the life of such child, according to the prayer of the petition, with all the duties, powers and rights belonging to the relationship of parent and child, and in case the adoption be for the life of the child, and the petitioner die intestate, such order shall have the further effect to enable such child to inherit the real estate and entitle it to the personal estate of the petitioner in the same manner and to the same extent such child would have been entitled to if such child had been the actual child of the person adopting him." C.S. § 185.

The status of an adopted child with respect to the inheritance of real property and the distribution of personal property has been changed substantially by Chapter 832 of the Session Laws of 1947, G.S. § 29-1, Rule 14, Chapter 879 of the Session Laws of 1947, G.S. § 28-149 (10), and Chapter 300 of the Session Laws of 1949, G.S. § 48-23. The pertinent portion of the 1949 Act, codified as G.S. § 48-23, reads as follows: "The final order forthwith shall establish the relationship of parent and child between the petitioners and the child, and, from the date of the signing of the final order of adoption, the child shall be entitled, to inherit real and personal property from the adoptive parents in accordance with the statutes of descent and distribution." And our present statute of distribution, G.S. § 28-149(10), provides that, "An adopted child shall be entitled by succession, inheritance or distribution of personal property * * * by, through, and from its adoptive parents the same as if it were the natural, legitimate child of the adoptive parents." Likewise, our statute of descents, G.S. § 29-1, Rule 14, provides, "An adopted child shall be entitled by succession or inheritance to any real property by, through, and from its adoptive parents the same as if it were the natural, legitimate child of the adoptive parents."

However, the above statutes have no bearing on the questions presented on this appeal except in so far as they establish and define the parent and child relationship between the adoptive parents and the adopted child. Whether an adopted child is entitled to take under a will is usually dependent upon whether such child comes within a particular class designated by the testator as "children," "issue," "descendants," or "heirs of the body," etc., of a designated person or persons. And whether an adopted child comes within such class must be determined by ascertaining the intent of the testator. 57 Am.Jur., Wills, section 1174, page 768.

The intent of a testator is ordinarily to be ascertained from an examination of his will from its four corners. Even so, it is permissible, when necessary in order to ascertain such intent, for the court to consider the will in light of the testator's knowledge of certain facts and circumstances existing at the time of or after the execution of the will. Wachovia Bank & Trust Co. v. Waddell, 237 N.C. 342, 75 S.E.2d 151; In re Will of Johnson, 233 N.C. 570, 65 S.E. 2d 12; Wachovia Bank & Trust Co. v. Bd. of National Missions, 226 N.C. 546, 39 S.E. 2d 621; Cannon v. Cannon, 225 N.C. 611, 36 S.E.2d 17; Heyer v. Bulluck, 210 N.C. 321, 186 S.E. 356.

It seems to be the general rule that where no language showing a contrary intent appears in a will, a child adopted either before or after the execution of the will, but prior to the death of the testator, where the testator knew of the adoption in ample time to have changed his will so as to exclude such child, if he so desired, such adopted child will be included in the word "children" when used to designate a class which is to take under the will. Smyth v. McKissick, 222 N.C. 644, 24 S.E.2d 621; Munie v. Gruenewald, 289 Ill. 468, 124 N.E. 605; Beck v. Dickinson, 99 Ind.App. 463, 192 N.E. 899; Mooney v. Tolles, 111 Conn. 1, 149 A. 515, 70 A.L.R. 608; Isaacs v. Manning, 312 Ky. 326, 227 S.W.2d 418; In re Upjohn's Will, 304 N.Y. 366, 107 N.E.2d 492. Cf. Phillips v. Phillips, 227 N.C. 438, 42 S.E.2d 604, and Wilson v. Anderson, 232 N.C. 212, 59 S.E.2d 836, Id., 232 N.C. 521, 61 S.E.2d 447, 18 A.L.R.2d 951, in which the rights of adopted children were determined by the construction of statutes, not testamentary provisions.

In the case of Smyth v. McKissick, supra, Ellison A. Smyth created an irrevocable trust agreement in 1932 for the benefit of certain named beneficiaries. Thereafter, in 1934 he executed a will under the terms of which the remainder of his estate was put in trust for the benefit of the same beneficiaries named in the trust indenture. The final distribution of the corpus of the trust under the will was directed to be made "upon the death of all", [222 N.C. 644, 24 S.C. 2d 624] the testator's children and the death or remarriage of his daughter-in-law, but in no event earlier than 1944. The estate was then to be distributed to the children of his deceased children. Thomas Smyth, one of the children of James Adger Smyth (a son of the testator who died prior to the execution of the will), and a grandson of the testator, Ellison A. Smyth, was married in November 1932 to Frances Thrower Smyth. Having no children born to them, in 1938, they adopted for life, David Hutchinson Smyth. It was admitted that the testator knew and approved of the adoption. He treated this child as he did the children born to his other grandchildren, giving him presents and keeping a photograph of him in his home. Thomas Smyth died in April 1941, leaving a last will and testament by which he disposed of all his property to his widow. The testator, Ellison A. Smyth, died 3 August, 1942.

This Court, in passing upon the interest of the adopted child in the irrevocable trust which was created in 1932, held that the trust indenture was effective from the date of its execution and the adopted child took nothing thereunder. But, since the will did not become effective until the death of the testator and the testator knew and approved of the adoption, the adopted child took under the provisions of the will. The Court, in speaking through Devin, J. (now Chief Justice), said: "The will of Ellison A. Smyth spoke from his death in 1942. At that time Thomas Smyth was dead, leaving an adopted child. David Hutchinson Smyth had become in law the child of Thomas Smyth and Frances Thrower Smyth, as respects them, as much so as if he had been born to them by natural law. While his adoption did not constitute him an heir of Ellison A. Smyth (Grimes v. Grimes, 207 N.C. 778, 178 S.E. 573), yet as the lawful child of Thomas Smyth he was entitled to take in substitution and as representative of his adopting father. He was then qualified in every legal aspect, as the ``child' of Thomas Smyth, to step into his father's shoes, and as the son of his father take property rights which had been set aside for his father." Cf. Tankersley v. Davis, 195 N.C. 542, 142 S.E. 765.

In the instant case the testator knew of the adoption of Marion F. Wyatt, Jr., and recognized him as a child of his nephew, Marion F. Wyatt. Each Christmas he gave him a present similar to that given to each natural-born child of his nieces and nephews. But, it is argued, since Marion F. Wyatt, Jr., was not included as a beneficiary under the trust created by the testator in 1941, and all 31 of the surviving natural-born children of his nieces and nephews were included, that this fact should negative any intent on the part of the testator to include Marion F. Wyatt, Jr., in his will. We do not think that the failure to include Marion F. Wyatt, Jr., as a beneficiary under the terms of the 1941 trust agreement perforce excludes him from the will. It might be argued that the reason he was not included in the 1941 trust agreement was because he was included in the will. Furthermore, the testator made considerable changes in his will in 1935 by the execution of a codicil thereto. This codicil was executed more than six years after the adoption of Marion F. Wyatt, Jr., and the testator inserted no provision therein indicating an intent to exclude him as a member of the class he had designated to take the corpus of these trusts as they terminate. Hence, we concur in the ruling of the court below with respect to the right of Marion F. Wyatt, Jr., to take under the provisions of the will.

As to the second question before us, it seems to be well settled that under a testamentary provision for children of a named person, a child adopted by such person after the testator's death does not take. To hold otherwise would make it possible for property of a testator to be diverted to strangers of his blood without his knowledge or consent. Therefore, in our opinion this question should be answered in the negative and we so hold. Among the opinions from other jurisdictions in accord with this view, we cite the following: In re Fisler, 131 N.J.Eq. 310, 25 A.2d 265; Moffet v. Cash, 346 Ill. 287, 178 N.E. 658; Comer v. Comer, 195 Ga. 79, 23 S.E.2d 420, 144 A.L.R. 664; Everitt v. LaSpeyre, 195 Ga. 377, 24 S.E.2d 381; In re Nelson's Estate, 143 Misc. 843, 258 N.Y.S. 667; Sanders v. Adams, 278 Ky. 24, 128 S.W.2d 223; In re Corr's Estate, 338 Pa. 337, 12 A.2d 76; Wildman's Appeal, 111 Conn. 683, 151 A. 265; In re Puterbaugh's Estate, 261 Pa. 235, 104 A. 601, 5 A.L.R. 1277; Lichter v. Thiers, 139 Wis. 481, 121 N.W. 153; Casper v. Helvie, 83 Ind.App. 166, 146 N.E 123; Melek v. Curators of University of Missouri, 213 Mo.App. 572, 250 S.W. 614; Parker v. Carpenter, 77 N.H. 453, 92 A. 955; Cochran v. Cochran, 43 Tex.Civ.App. 259, 95 S.W. 731.

What we have heretofore said is sufficient to require a negative answer to the third question posed for decision. Nevertheless, there is another impelling reason why this question should be so answered.

The testator provided in his will that, "the living issue of any predeceased child of any of my nephews and the living issue of any predeceased child of any of my nieces to take the share which he, her or their parents would have taken if living and the same to be divided among them, per stirpes and not per capita." This necessitates a consideration of what the testator meant by the use of the word "issue." Nothing else appearing, it will be presumed that he used it in its generally accepted legal sense.

The word "issue" when used in a will is generally construed as a word of limitation and means "lawfully begotten heirs of the body." Harrell v. Hagan, 147 N.C. 111, 60 S.E. 909, 125 Am.St.Rep. 539; Ford v. McBrayer, 171 N.C. 420, 88 S.E. 736; Bowden v. Lynch, 173 N.C. 203, 91 S.E. 957; Love v. Love, 179 N.C. 115, 101 S.E. 562; Edmundson v. Leigh, 189 N.C. 196, 126 S.E. 497. Or its meaning may be expressed as inclusive of all persons descended from a common ancestor. 1 Bouvier Law Dict., Rawle's Third Rev., 1686. Likewise, the natural and ordinary meaning of the word "issue" is understood to include only a child or children born of the marriage of the ancestor or their descendants. And regardless of any provisions that may be contained in an adoption law with respect to the parent and child relationship, or the right of an adopted child to take by, through, and from its adoptive parents, the adoption of a child under such law does not make such adopted child a lawfully begotten heir of the bodies of the adoptive parents.

Hence, we hold that Mary Rennie Newbold and her issue and any other child who may hereafter be adopted by any of the testator's nieces or nephews and its issue may not take under the provisions of the last will and testament of John M. W. Hicks.

The judgment of the court below will be modified in accord with this opinion.

Modified and affirmed.