Gibbons v. Cole , 132 N.C. App. 777 ( 1999 )

513 S.E.2d 834 (1999)

Virginia GIBBONS, Alberta G. Covington, Bridget Gibbons McNair and Kathleen Gibbons Shue, Plaintiffs-Appellants,
v.
Dawn Royston COLE, Philip Royston, Wachovia Bank of North Carolina, N.A., Trustee of the John P. Gibbons Trust, and Mary Elizabeth Gibbons Sutherland, now deceased, Defendants-Appellees.

No. COA98-764.

Court of Appeals of North Carolina.

April 6, 1999.

Shipman & Associates, L.L.P. by Gary K. Shipman and C. Wes Hodges, Jr., Wilmington, for plaintiff-appellants.

Etheridge, Moser, Garner & Bruner, P.A. by Terry R. Garner and Christopher N. Heiskell, Laurinburg, for defendant-appellees.

Hunton & Williams, by Albert Diaz, Raleigh, for defendant Wachovia.

Thigpen & Jenkins, L.L.P. by James H. Jenkins, Southern Pines, for defendant Mary Elizabeth Gibbons Sutherland (deceased).

EAGLES, Chief Judge.

The primary issue before us is whether, pursuant to G.S. 48-1-106(e), the two adopted children of Gibbons' daughter, Virginia Gibbons Royston, are entitled to take as "issue" or "descendants" under the terms of the irrevocable inter vivos trust created by Gibbons in 1935. G.S. 48-1-106(e) provides:

In any deed, grant, will, or other written instrument executed before October 1, 1985, the words "child," "grandchild," "heir," "issue," "descendant," or an equivalent, or any other word of like import, shall be held to include any adopted person after the entry of the decree of adoption, unless a contrary intention plainly appears from the terms of the instrument, whether the instrument was executed before or after the entry of the decree of adoption. The use of the phrase "hereafter born" or similar language in any such instrument to establish a class of persons shall not by itself be sufficient to exclude adoptees from inclusion in the class. In any deed, grant, will, or other written instrument executed on or after October 1, 1985, any reference to a natural person shall include any adopted person after the entry of the decree of adoption unless the instrument explicitly states that adopted persons are excluded, whether the instrument was executed before or after the entry of the decree of adoption.

G.S. 48-1-106(e) (1996). As its text clearly indicates, G.S. 48-1-106(e) must be applied retroactively and gives adopted children the same rights as natural children to share in property conveyed through deeds, grants, wills, or other written instruments, unless the instruments expressly exclude them. Plaintiffs argue that G.S. 48-1-106(e) should not apply to defendants. Plaintiffs first contend that to allow defendants to share in the distribution conflicts with the intent of the settlor Gibbons. Plaintiffs contend that Gibbons' intent not to include defendants is evidenced by the "substantial gift of stock" that Gibbons purportedly gave to the defendants' mother for the benefit of the defendants. Plaintiffs argue that when the trust was executed in 1935 (before enactment of G.S. 48-1-106(e) in 1996), adopted children were presumptively excluded from taking as "issue" or "descendants" under the trust unless the terms of the trust clearly indicated an intent to include them. Plaintiffs contend that Gibbons wanted to provide equally for Gibbons' natural and adopted grandchildren and that he gave the stock to Virginia Gibbons Royston after she adopted the children on his assumption that they could not take as "issue" or "descendants" under the trust. According to plaintiffs, "the trial court's strict application of [G.S. 48-1-106(e) ] ignores the circumstances existing at the time of the creation of the Trust, the intent of the settlor, and results in a windfall to the appellees, which clearly was not intended by the General Assembly in enacting the adoption statutes."

Plaintiffs' argument fails. The terms of the statute are clear and unambiguous. Accordingly, we must give G.S. 48-1-106(e) its plain and definite meaning. We are without power to create provisions and limitations not contained in the language of the statute itself. State v. Green, 348 N.C. 588, 596, 502 S.E.2d 819, 824 (1998). Here, the irrevocable inter vivos trust created in 1935 was clearly a "written instrument executed before October 1, 1985," and no intention to exclude the adopted grandchildren plainly appears from the terms of the instrument. Accordingly, we are required by G.S. 48-1-106(e) to conclude that the defendants are entitled to share in the distribution of the trust as "issue" or "descendants" of their adoptive mother, Virginia Gibbons Royston. In Peele v. Finch, 284 N.C. 375, 383, 200 S.E.2d 635, 641 (1973), the Supreme Court construed G.S. 48-23(3), the predecessor to 48-1-106(e), concluding that an adopted child was entitled to take under a will as "issue" of the testator's children pursuant to the statute. The Peele Court stated:

Clearly, the purpose of the Legislature in adding to G.S. 48-23[3], [now G.S. 48-1-106(e) ] enacted almost immediately after the decision of this Court in Thomas v. Thomas, supra, was to change the law as there declared. The express provision of the statute is that in any will the word ``issue' shall be held to include any adopted person, unless the contrary plainly appears by the terms of the will itself. It is also expressly provided by the statute that such rule of construction shall apply whether the will was executed before or after the final order of adoption and irrespective of whether the will was executed before or after the enactment of the statute.

Peele v. Finch, 284 N.C. 375, 381-82, 200 S.E.2d 635, 640 (1973). See also Wachovia Bank and Trust Co. v. Chambless, 44 N.C.App. 95, 105, 260 S.E.2d 688, 695 (1979); and Stoney v. MacDougall, 31 N.C.App. 678, 681, 230 S.E.2d 592, 593 (1976), cert. denied, 291 N.C. 716, 232 S.E.2d 208 (1977).

We recognize that the application of G.S. 48-1-106(e) may cause arguably unfair results. However,

[t]he terms of the statute being clear, no construction of its provisions by this Court is required. In such event, it is our duty to apply the statute so as to carry out the intent of the Legislature, irrespective of any opinion we may have as to its wisdom or its injustice to the deceased testator, unless the statute exceeds the power of the Legislature under the Constitution.

Peele v. Finch, 284 N.C. 375, 382, 200 S.E.2d 635, 640 (1973) (citations omitted) (holding that G.S. 48-23 [now G.S. 48-1-106(e) ] does not exceed the power of the legislature under the Constitution).

We also conclude that the trial court did not err in granting defendants' motion to strike plaintiffs' allegations regarding the purported gift of stock since G.S. 48-1-106(e) precludes us from looking beyond the terms of the trust instrument in determining whether defendants share in the distribution of the trust.

We next address whether the trial court erred when it ruled on defendants' motion for attorneys fees pursuant to G.S. 6-21(2) after plaintiffs gave notice of appeal to this Court from the trial court's judgment on the pleadings. G.S. 1-294 (1996). G.S. 6-21(2) governs attorneys fees in this case and provides in pertinent part:

Costs in the following matters shall be taxed against either party, or apportioned among the parties, in the discretion of the court:

...

2) Caveats to wills and any action or proceedingwhich may require the construction of any will ortrust agreement, or fix the rights and duties of parties thereunder;....

G.S. 6-21(2) (1997). Plaintiffs contend that the trial court erred in granting defendants' motion for fees because the court was without jurisdiction to proceed on the motion after appellants filed an appeal in this Court. We agree. The record shows that the trial court granted defendants' motion for judgment on the pleadings on 3 April 1998. On 27 April 1998, plaintiffs gave notice of appeal from the trial court's entry of judgment on the pleadings. On 1 June 1998, the trial court held a hearing on defendants' motion for attorneys fees. On 27 July 1998, the trial court entered a final order granting defendants' motion. G.S. 1-294 provides in pertinent part:

When an appeal is perfected as provided by this Article it stays all further proceedings in the court below upon the judgment appealed from, or upon the matter embraced therein; but the court below may proceed upon any other matter included in the action and not affected by the judgment appealed from....

G.S. 1-294 (1996). In the final order granting defendants' motion for attorneys fees, while defendants appeal from judgment on the pleadings was pending, the trial court stated: "[T]he action of the plaintiffs was without merit. It would be inappropriate in such a matter to tax attorneys fees and costs against the trust corpus. In this matter, costs, including the defendants' reasonable attorneys fees, should be taxed against the plaintiffs." Here, the trial court's decision to award attorneys fees was clearly affected by the outcome of the judgment from which plaintiffs appealed. Accordingly, the appeal by plaintiffs from the judgment on the pleadings deprived the superior court of the authority to make further rulings in the case until it returns from this Court. G.S. 1-294. Oshita v. Hill, 65 N.C.App. 326, 330, 308 S.E.2d 923, 927 (1983). We vacate the trial court's award of attorneys fees and we remand to the trial court for further consideration regarding attorneys fees as the circumstances require.

We need not address plaintiffs' remaining assignments of error.

Affirmed in part and vacated and remanded in part.

Judges WYNN and EDMUNDS concur.