Filed 1 February 1963.
1. Wills 42 — As a general rule, a devise in remainder to the child or children of the life tenant does not include a child adopted by the life tenant unless it appears from the instrument itself or the attendant circumstances that testator meant to include adopted children within the class.
2. Wills 27 — The rule that a will speaks as of the time of testator's death relates to the subject matter of disposition only, and the persons who are to take under the will are to be determined in accordance with the intent of testator as ascertained from the language of the instrument considered in the light of the conditions and circumstances existing at the time the will was made.
3. Wills 42 — Adopted child does not take as member of class when there is nothing to indicate that testator so intended. Testator devised the property in question to his son for life, remainder to the son's children, with contingent remainder over in the event the son died without surviving child or children. At the time the will was executed the son was married but childless and there was no statute providing for inheritance by an adopted child from the ancestor of the adoptive parent. After the death of testator the son adopted a child. Held: The adopted child does not take the remainder, there being nothing to indicate that testator intended that a child adopted by his son should take. G.S. 48-23 is not applicable, there being a distinction between the right of an adopted child to take by devise and such right to take by inheritance.
APPEAL by defendant from Carr, J., March Term 1962 of HOKE.
Hostetler McNeill; Seawall Harrell for plaintiffs.
Simons Simons; Clark Braswell for defendant.
HIGGINS, J., dissenting.
PARKER, J., joins in dissent.
This is a civil action instituted pursuant to the provisions of our Declaratory Judgment Act, G.S. 1-253, et seq., to determine the rights of the parties to the action under the provisions of the last will and testament of James C. Thomas, deceased, who died in 1926.
James C. Thomas left surviving him four children, viz., William Marshall Thomas, J. Benton Thomas, Crawford L. Thomas, and Ina Thomas Lentz Paulston.
The testator, James C. Thomas, devised two farms, one consisting of 52 acres and the other 142 acres, both in Hoke County North Carolina, to his son, William Marshall Thomas, "for him to have the use of the same during his natural life, and then to his wife Agnes Thomas, for her to have the use of same during her natural life, if she should survive her husband, and then I give land devise said lands in fee simple to the children of my said son living at the time of his death and to such children of any deceased child of his as may be living at the time of his death, the grandchildren to take such shares as their deceased parent would have taken if living at the time of the death of my said son, and if there should be no such children or grandchildren, then said lands are to go in fee simple to the brothers and sister of my said son, those of the half blood to take equally with those of the whole blood * * *."
The following facts were stipulated: That on 19 May 1949, William Marshall Thomas and wife, Agnes Thomas, adopted for life Harold Stanley Thomas, who was 19 years of age at the time of the adoption; that Agnes Thomas, wife of William Marshall Thomas, died intestate on 7 June 1958, leaving surviving her husband, William Marshall Thomas, land her adopted son, Harold Stanley Thomas; that William Marshall Thomas died 2 May 1961; that there were no natural children born of the marriage of William Marshall Thomas and Agnes Thomas, and that Harold Stanley Thomas was the only adopted child.
The court below held that J. Benton Thomas, Crawford L. Thomas, and Ina Thomas Lentz Paulston, the natural children of James C. Thomas, deceased, and the surviving brothers and sister of William Marshall Thomas, deceased, are the owners as tenants in common of the real property devised in Item 2 of the last will and testament of James C. Thomas, and that the defendant Harold Stanley Thomas has no right, title or interest therein.
Judgment was entered accordingly and the defendant appeals, assigning error.
The question for determination of this appeal is simply this: Where a testator devises real property to a son for life and then to the children of said son living at the time of his death, does a child adopted by the son after the death of the testator, take as though he had been a natural born child of the son?
If the question here were one of inheritance we think G.S. 48-23 would give us the answer. This statute in pertinent part provides: "The final order forthwith shall establish the relationship of parent and child between the petitioners land 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 by, through, and from the adoptive parents in accordance with the statutes of descent and distribution. An adopted child shall have the same legal status, including all legal rights and obligations of any kind whatsoever, as he would have had if he were born the legitimate child of the adoptive parent or parents at the date of the signing of the final order of adoption, except that the age of the child shall be computed from the date of his actual birth."
However, the courts in most jurisdictions still make a distinction between devises and inheritances with respect to the right of an adopted child, even though all distinctions between natural born and adopted children have been abolished by statute.
In the case of Smyth v. McKissick, 222 N.C. 644, 24 S.E.2d 621, this Court held that a child adopted after the effective date of a trust indenture, could not take thereunder. The Court said: "The general rule is that the word `child,' standing alone, when used in a deed as referring to those to take in succession, does not include the adopted child of another, unless it appears from the instrument itself or attendant circumstances that it was so intended. There is nothing in the language of the trust indentures here to indicate that the testator intended to include any others than those of his blood, and there were no extraneous circumstances, existing at the time of or before the execution of the trust indentures, which would lend color to the suggestion that an adoption by Thomas Smyth was anticipated or contemplated."
Likewise, we pointed out in the case of Bradford v. Johnson, 237 N.C. 572, 75 S.E.2d 632, that a testamentary provision for a child or children of a named person, a child adopted by such person after the testator's death does not take. Among the authorities from other jurisdictions in accord with this view, we cite the following: Morgan v. Keefe, 135 Conn. 254, 63 A.2d 148; 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; Belfield v. Findlay, 389 Ill. 526, 60 N.E.2d 403; Orme v. Northern Trust Co., 29 Ill. App.2d 75, 172 N.E.2d 413; Peirce v. Farmers State Bank, 222 Ind. 116, 51 N.E.2d 480; Casper v. Helvie, 83 Ind. App. 166, 146 N.E. 123; Hutchins v. Browne, 253 Mass. 55, 147 N.E. 899; In re Chapple's Estate, 338 Mich. 246, 61 N.W.2d 37; 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; In re Graham's Will, 73 N.Y.S.2d 240; In re Hall's Will, 127 N.Y.S.2d 445; In re Peabody's Will, 17 Misc.2d 656, 185 N.Y.S.2d 591; Albright v. Albright, 116 Ohio St. 668, 157 N.E. 760; Central Trust Co. v. Hart, 82 Ohio App. 450, 80 N.E.2d 920; In re Ware's Estate (1958 Okla.), 348 P.2d 176; In re Puterbaugh's Estate, 261 Pa. 235, 104 A. 601; In re Holton's Estate, 399 Pa. 241, 159 A.2d 883, 86 A.L.R.2d 1; Cochran v. Cochran, 43 Tex. Civ. App. 259, 95 S.W. 731; Murphy v. Slaton, 154 Tex. 35, 273 S.W.2d 588; Trueax v. Black, 53 Wn.2d 537, 335 P.2d 52; Lichter v. Thiers, 139 Wis. 481, 121 N.W. 153; 86 A.L.R.2d Anno: Adopted Child — Rights Under Will, page 58, et seq.
The minority view, permitting children adopted after the testator's death to be included when the word "children" is used to designate a class which is to take under the will, is represented by the following cases: Dyer v. Lane, 202 Ark. 571, 151 S.W.2d 678; In re Stanford's Estate, 49 Cal.2d 120, 315 P.2d 681; Meek v. Ames, 177 Kan. 565, 280 P.2d 957; Edmands v. Tice (1958 Ky.), 324 S.W.2d 491; In re Patrick's Will, 259 Minn. 193, 106 N.W.2d 888.
On the other hand, 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 had 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. Bullock v. Bullock, 251 N.C. 559, 111 S.E.2d 837; Trust Co. v. Green, 239 N.C. 612, 80 S.E.2d 771; Bradford v. Johnson, supra, and cited cases.
It is further pointed out in Trust Co. v. Green, supra: "The dispositive provisions of a will speak as of the death of the testator. G.S. 31-41; Trust Co. v. Waddell, 237 N.C. 342, 75 S.E.2d 151; Ferguson v. Ferguson, 225 N.C. 375, 35 S.E.2d 231; Smith v. McKissick, supra. However, the fact that a will speaks from the death of the testator, `relates to the subject matter of disposition only, and does not in any manner interfere with the construction in regard to the objects of the gift.' Hines v. Mercer, 125 N.C. 71, 34 S.E. 106; Robbins v. Windley, 56 N.C. 286. Consequently, it is well settled in this jurisdiction that the intent of the testator is to be ascertained, if possible, from a consideration of the language used by him, and `the will is to be considered in the light of the conditions and circumstances existing at the time the will was made.' Trust Co. v. Waddell, supra; Trust Co. v. Schneider, 235 N.C. 446, 70 S.E.2d 578; In re Will of Johnson, 233 N.C. 570, 65 S.E.2d 12; Cannon v. Cannon, 225 N.C. 611, 36 S.E.2d 17; Heyer v. Bulluck, 210 N.C. 321, 186 S.E. 356; Scales v. Barringer, 192 N.C. 94, 133 S.E. 410; Raines v. Osborne, 184 N.C. 599, 114 S.E. 849; Herring v. Williams, 153 N.C. 231, 69 S.E. 140."
In the instant case, the defendant Harold Stanley Thomas was not born when the testator died. In fact, the testator executed his last will and testament on 13 March 1926 and died sometime later in that same year, 23 years before the defendant was adopted. Moreover, at the time the testator executed his will, an adopted child was incapable of inheriting from the ancestor of the adoptive parents. In fact, our first statute that authorized an adopted child to take from and through the adoptive parents was not enacted until 1941, fifteen years after the death of the testator. Grimes v. Grimes, 207 N.C. 778, 178 S.E. 573; Phillips v. Phillips, 227 N.C. 438, 42 S.E.2d 604; Wilson v. Anderson, 232 N.C. 212, 59 S.E.2d 836. Consequently, at the time the testator executed this will, there was nothing in our statutes of descent and distribution or in our adoption laws, or in the will itself, as executed, to indicate that the testator had any idea that in leaving real estate to his son for life, then in fee simple to his children living at his death, if any, would or could include any child except a child or children of the blood of the ancestor.
In 95 C.J.S., Wills, section 653, page 954, et seq., it is said: "Ordinarily, an adopted child is not actually a child of the adopting parent, and does not come within the usual meaning of `children,' was used in 3 will to designate beneficiaries. However, whether the term `children' as so used in a will includes adopted children as well as children of the blood of the person designated depends on the intention of the testator, which must govern, and such intention is to be ascertained from the reading of the will, in the light of all the surrounding circumstances; it will not include an adopted child in the absence of circumstances clearly showing that the testator so intended, but an adopted child will be deemed included in the term when the intention of the testator is clear.
"If the testator knows and approves of the adoption, as where the adoption occurs before the execution of the will, or a considerable time before the death of the testator, after the execution of the will but prior to the testator's death, or before or after the execution of the will, but prior to the death of the testator, an adopted child will be included in the word `children.' An adoption after the testator's death, there being no indication that the testator knew that the adoption was contemplated, indicates that the adopted child was not intended to be included. * * *"
Likewise, in 57 Am. Jur., Wills, section 1365, page 904, et seq., we find the following statement: "In the absence of a contrary context, it is generally held that the word `child' or `children' as used in a will should not be construed as including adopted children, especially where the adoption took place after the death of the testator or was for other reasons unknown to him, or the statutes relating to adoptions impose some restrictions on the rights of adoptees to inherit from or through their adopting parents; but where it is clear that the testator intended that the terms should include adopted children, that intention will be respected. * * * Among the indicia which have been relied upon as showing that a particular testator intended that the term `child' or `children,' as used by him, should include adopted children are the circumstance that the testator knew and approved of the adoption, and the effect of the applicable statutes relating to adoptions to make an adopted child the equivalent of a legitimate natural child for purposes of succession."
In the case of Belfield v. Findlay, supra, Sarah Findlay executed a will in 1916. She died in 1930. She devised her real property to her son for life and on his death "the said land to go to his children, or if he leaves no children surviving him, then said land is to go to my daughters." The son adopted a child, Nelson Findlay, in 1939. The adopted child was born in 1933. Upon the death of the adoptive parent in 1940, the identical question was raised that is presented in the instant case. The Supreme Court of Illinois said: "Here, defendant, the adopted child, was not born until seventeen years after the execution of the will of Sarah Findlay and, we note again that she died three years prior to defendant's birth and nine years before he was adopted. It follows that, under the law established by applicable decisions, defendant is not the owner of the property in controversy. Arthur Findlay, at his death, not having been survived by any child or children or other lineal descendants, within the meaning of his mother's will, the land devised by her became the property of plaintiffs, and title was properly quieted in them. Our conclusion is in accord with the great weight of authority. Indeed, `It is almost universally agreed that where a provision is made in a will for children of some person other than the testator, an adopted child is presumed not to be included unless there is language in the will, or there are circumstances surrounding the testator at the time he made the will, which make it clear that the adopted child was intended to be included.' 70 A.L.R. 621."
The case of Headen v. Jackson, 255 N.C. 157, 120 S.E.2d 598, has no bearing on the question presented on this appeal. The question there was one which involved the interpretation of our antilapse statute, G.S. 31-42.1, in light of the provisions of G.S. 48-23.
Under the law in this jurisdiction, the plaintiffs, the brothers and sister of William Marshall Thomas, are the owners of the lands involved as tenants in common, and the judgment entered below is