Bullock v. Bullock , 251 N.C. 559 ( 1960 )

111 S.E.2d 837 (1960) 251 N.C. 559

Albert BULLOCK and George Bullock; and Charles William Bullock, Georgia Ann Bullock and Linda Marie Bullock, minors, by their next friend, Delphia B. Bullock,
v.
Lila Faye BULLOCK and Martha Joy Bullock.

No. 738.

Supreme Court of North Carolina.

January 14, 1960.

Britt, Campbell & Britt, Fairmont, for plaintiffs.

F. L. Adams, Rowland, and Hackett & Weinstein, Lumberton, for defendants.

DENNY, Justice.

The primary question to be determined on this appeal is whether or not it was the intent of the testator to include any child or children who might be adopted by any one or more of his sons named in Item 3 of his last will and testament, as ultimate taker or takers of a fee simple estate thereunder.

If the testator had devised his 106-acre farm to his four sons named in Item 3 of his last will and testament, during the term of their natural lives, to be equally divided among them, and after their death to their children in fee simple, and if any one or more of them died without children then to the children of the other sons named in his will, there would be no question about these adopted children taking under such provisions. Smyth v. McKissick, 222 N.C. 644, 24 S.E.2d 621; Bradford v. Johnson, 237 N.C. 572, 75 S.E.2d 632.

However, the testator went further, and in a sense interpreted what he meant by the children of his sons. He devised the 106-acre farm to his four sons named in Item 3 of his will "during the term of their natural lives, to be equally divided among them." Then he continued by adding, "to have and to hold, the same unto them, during the term of their natural lives and after their death to their children in fee simple, but in case either of my sons should die without leaving children capable of inheriting said lands, then in that event the part of said land that would go to such a one, or more than one, shall be and belong to the children of the one or those who remain"; the testator further revealed his intent by saying, "it being my desire and intention to so convey (devise) this property that my said sons shall have the full benefit of their own several use during their natural lifetime, and, after their death, that my grandchildren shall have the use of same during their life, that is, my grandchildren from my said sons." (Emphasis added.)

We think by the use of the phrase, "but in case either of my sons should die without leaving children capable of inheriting said lands," the testator intended to restrict the fee simple takers under Item 3 of his will to the legitimate issue of his said four sons; and an adopted child is not the issue of its adoptive parents. Bradford v. Johnson, supra.

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. Wachovia Bank & Trust Co. v. Green, 239 N.C. 612, 80 S.E.2d 771; Bradford v. Johnson, supra; and cited cases.

It seems to be equally true that when a testator makes a devise to the children of his children in fee simple, subject to the life estates of his children, and then states it to be his desire and intention that after the death of his children, the life tenants, his grandchildren are to take the property, an adopted child or children of a child who was devised a life estate will not be construed to be included as a grandchild or grandchildren. In other words, the grandchildren of a testator, nothing else appearing, does not include an adopted child of a son or daughter of the testator. Fidelity Union Trust Co. v. Hall, 125 N.J.Eq. 419, 6 A.2d 124; Dulfon v. Keasbey, 111 N.J.Eq. 223, 162 A. 102; In re Olmsted's Will, 277 App.Div. 1092, 101 N.Y.S.2d 152; In re Loghry's Will, Sur.1952, 113 N.Y.S.2d 301; In re Conant's Estate, 144 Misc. 743, 259 N.Y.S. 885; Comer v. Comer, 195 Ga. 79, 23 S.E.2d 420, 144 A.L.R. 664; 95 C.J.S. Wills § 663, p. 973. Cf. Barton v. Campbell, 245 N.C. 395, 95 S.E.2d 914.

It is said in Fidelity Union Trust Co. v. Hall, supra [125 N.J.Eq. 419, 6 A.2d 129], "The will * * * was executed prior to the adoption, and by a stranger to the adoption. Under these circumstances, an adopted child of a child of the testator * * * does not take under a gift to ``grandchildren' of the testator * * * unless there be other evidence in the instrument or the surrounding circumstances sufficient to show an intent by the testator that he should take."

In Dulfon v. Keasbey, supra, [111 N.J. Eq. 223, 162 A. 105] where the testator had devised property to his "grandchildren," the Court said: "* * * he meant his sons' children begot, as in Genesis; those of his loins, the stock of which he was the ancestor; and not children artificially created by law."

In In re Conant's Estate, supra, [144 Misc. 743, 259 N.Y.S. 886] the New York Court said: "There is no such person as a grandchild by adoption."

In the case of Comer v. Comer, supra, [195 Ga. 79, 23 S.E.2d 424] the child involved was adopted after the death of the testator by a daughter of the testator. The plaintiff in the case was the adopted child; by his guardian he was seeking to secure a share in the testator's estate under a devise to the "grandchildren" of the testator. The Court said: "* * * no act of the testator's daughter in adopting a child, whether before or after his death, could have created any relationship between such child and the testator, so as to make that child his own grandchild, upon whom he might naturally desire to bestow a bounty * * *."

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 the light of the testator's knowledge of certain facts and circumstances existing at the time of or after the execution of the will. Bradford v. Johnson, supra; 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. Board 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.

The testator herein executed his will in 1936, and the defendants, the adopted children of Clifford Bullock, were not adopted until some six or eight years prior to the death of the testator on 25 February 1957. Moreover, there is nothing in the record to indicate whether or not the testator knew of these adoptions, or whether or not his mental and physical capacities were such that he would have been capable of changing his will after these defendants were adopted, if he had so desired.

In our opinion, the defendants herein took nothing under the terms and provisions of Item 3 of the last will and testament of W. B. Bullock, deceased, and we so hold. Therefore, (1) upon the death of Ray Bullock, Charles William Bullock, Georgia Ann Bullock and Linda Marie Bullock became fee simple owners, as tenants in common, share and share alike, in a one-fourth undivided interest in the lands devised in Item 3 of said will. (2) That upon the death of Clifford Bullock, Charles William Bullock, Georgia Ann Bullock and Linda Marie Bullock became the fee simple owners, as tenants in common, share and share alike, in an additional one-fourth undivided interest in the aforesaid lands. (3) That Charles William Bullock, Georgia Ann Bullock and Linda Marie Bullock, as children of George Bullock, are the fee simple owners of a one-fourth undivided interest in said lands, subject to the life estate of their father, George Bullock, and subject to further children being born to said George Bullock.

The judgment entered below is hereby modified to the extent pointed out herein otherwise it is affirmed.

Modified and affirmed.