Stoney v. MacDougall

230 S.E.2d 592 (1976) 31 N.C. App. 678

Mary Kistler STONEY et al.
v.
Roderick M. MacDOUGALL, Trustee under the Will of Andrew M. Kistler, et al.

No. 7625SC495.

Court of Appeals of North Carolina.

December 15, 1976. Certiorari Denied January 31, 1977.

Hudson, Petree, Stockton, Stockton & Robinson by H. G. Hudson, Winston-Salem, for plaintiff appellees; Everett, Everett, Creech & Craven by James B. Craven, III, Durham, for defendant appellees, Mary Kistler Stahl and all other adult defendants who are members of the family of Andrew M. Kistler and Hattie Harwood and all other adult members of the Harwood family.

Wayne W. Martin, Morganton, for the guardian ad litem for infant, unborn and unknown, defendant appellants.

Certiorari Denied by Supreme Court January 31, 1977.

CLARK, Judge.

G.S. 48-23(3) states that

"From and after the entry of the final order of adoption, the words ``child,' ``grandchild,' ``heir,' ``issue,' ``descendant,' or an equivalent, or the plural forms thereof, or any other word of like import in any deed, grant, will or other written instrument shall be held to include any adopted person, unless the contrary plainly appears by the terms thereof, whether such instrument was executed before or after the entry of the final order of adoption and whether such instrument was executed before or after the enactment of this section."

Appellant argues that in two terms of the will the contrary intent of the testator plainly appears. Appellant first argues that at the time the will was drafted and at testator's death, the word issue did not include adopted children, and therefore merely by its use at that time an intent contrary to the provisions of G.S. 48-23(3) plainly appears in Article Eight. Were this argument to be adopted it would vitiate the effect of G.S. 48-23(3) on all instruments drafted before its enactment, contrary to the clearly expressed intent of the legislature. It is well established that the cardinal principle in the construction of a will is to give effect to the intent of the testator as it appears from the language used in the instrument itself, subject to the limits imposed by statute or decision. Olive v. Biggs, 276 N.C. 445, 173 S.E.2d 301 (1970). G.S. 48-23(3) has not changed this principle, but merely has provided the courts with a clear and certain rule of construction to be applied unless a contrary intent plainly appears from the terms of the instrument. Peele v. Finch, 284 N.C. 375, 200 S.E.2d 635 (1973). We hold that the mere use of the word issue in an instrument drafted prior to the enactment of G.S. 48-23(3) does not plainly reveal the contrary intent required by the statute. Peele v. Finch, supra; Stoney v. MacDougall, 28 N.C.App. 178, 220 S.E.2d 368 (1975), cert. denied, 289 N.C. 302, 222 S.E.2d 702 (1976).

Appellant also relies upon Article Fourteen of the will, which states that

"My sister, Hattie Harwood, for whom I have made provision if certain contingencies shall occur is not my sister by blood but by adoption and I mention this fact in order that no complication may arise on account of this relationship."

We fail to see how this provision plainly reveals an intent to exclude all adoptives from the will. Quite to the contrary, this provision reveals a heartfelt desire that there be no discrimination against testator's adopted sister. To deduce an intent to exclude all adoptives from a provision expressing a clear desire to include one adoptive is a step in logic this court is not prepared to take.

The recent case of Crumpton v. Crumpton, 290 N.C. 651, 227 S.E.2d 587 (1976), held that in a proceeding for a private sale of land under G.S. 41-11, it would be premature to determine the ultimate disposition of the sale proceeds in the hands of the Clerk by deciding whether a contingent interest of children of a deceased son of the life tenant had been destroyed by virtue of their adoption from the deceased son.

"A close examination of the statute reveals that its purpose is not to obtain predictive declarations of future rights of the parties inter se, but rather to promote the interest of all the parties by allowing the sale of desirable land free from the restrictions imposed by the presence of uncertainties as to whom the land will ultimately belong. . . ." 290 N.C. at 655, 227 S.E.2d at 591. (Emphasis added).

The decision in Crumpton has no application to the case before us. This action was brought under the Uniform Declaratory Judgment Act, G.S., Chap. 1, Art. 26. G.S. 1-254 provides that: "Any person interested under a . . . will . . . or whose rights, status or other legal relations are affected by a statute . . . may have determined any question of construction or validity arising under the instrument, statute . . . and obtain a declaration of rights, status, or other legal relations thereunder. . . ." The determination of the status of the adopted children is clearly within the purpose of the Act. Trust Co. v. Green, 238 N.C. 339, 78 S.E.2d 174 (1953); Little v. Trust Co., 252 N.C. 229, 113 S.E.2d 689 (1960); Gregory v. Godfrey, 254 N.C. 215, 118 S.E.2d 538 (1961).

The judgment is

Affirmed.

MORRIS and ARNOLD, JJ., concur.