WACHOVIA BANK & TRUST COMPANY v. McKee , 260 N.C. 416 ( 1963 )

132 S.E.2d 762 (1963) 260 N.C. 416

WACHOVIA BANK & TRUST COMPANY, Executor of the Will of Ernest Lyndon McKee, Jr., Deceased,
v.
Ernestine N. McKEE, Ann McKee, Minor, Ernest Lyndon McKee, III, Minor, and Arthur William McKee, Minor.

No. 89.

Supreme Court of North Carolina.

October 30, 1963.

Francis J. Heazel, Asheville, attorney and guardian ad litem for defendants Ernest Lyndon McKee, III, and Arthur William McKee, minors, appellant.

Adams & Adams, by J. G. Adams, Jr., Asheville, for defendant Ernestine N. McKee, appellee.

HIGGINS, Justice.

A will takes effect and speaks as of the date of the testator's death. Vandiford v. Vandiford, 241 N.C. 308, 84 S.E.2d 278. Ernest Lyndon McKee executed his will on January 28, 1949. He died on April 9, 1961. His will in unmistakable terms gave all his property and belongings to his wife, Ernestine N. McKee. On the day the will was executed the testator and his wife had one child, a daughter Ann, then three years and eight months of age. Four days after the execution of the will, Ernest Lyndon McKee, III, was born. Less than two years thereafter, another son, Arthur William McKee, was born.

The law in effect at the testator's death provided: "A will shall not be revoked by the birth of a child * * * after the execution of the will, but any such after-born * * * child shall be entitled to such share in testator's estate as it would be entitled to if the testator had died intestate unless: (1) The testator made some provision in the will for the child, whether adequate or not, or (2) It is apparent from the will itself that the testator intentionally did not make specific provision therein for the child." G.S. § 31-5.5; Johnson v. Johnson, 256 N.C. 485, 124 S.E.2d 172.

In simple terms, a child born after the will is executed takes as in case of intestacy, unless (1) provision is made for it in the will, or (2) it appears from the will itself that the testator's failure to make provision was intentional. Certain it is, that the testator in the will did not make provision for any afterborn child. It is equally certain the will itself does not disclose whether this failure was intentional or unintentional. Afterborn children, in fact all children, are ignored in the will. Hence we cannot say the will discloses an intent to exclude afterborn children. We are limited to the will as the source from which intent to exclude must appear. Such intent does not appear from the will. The law is so written. We must so apply it.

It appears from the foregoing analysis that the judgment of the Superior Court must be reversed and the case remanded for judgment that the two afterborn children take as in case of their father's intestacy.

The members of the Court enter with reluctance a judgment which excludes Ann from sharing in her father's estate. The mother in all likelihood will see to it that Ann's disadvantage is more apparent than real.

Reversed.