Opinion
Filed 16 June, 1961.
Adoption 6: Wills 47, 65 — Where the adoptive parent is named a legatee in the will of her mother but dies prior to the mother's death, the adoptive child takes the personalty bequeathed his adoptive mother under G.S. 3142.1, since under the provisions of G.S. 48-23 the adopted child has the same standing as though he had been born to his adoptive parent.
APPEAL by defendant Hamilton B. Tatum from Olive, J., January 1961 Civil Term, GUILFORD Superior Court — Greensboro Division
Douglas, Ravenel, Josey Hardy, for plaintiffs, appellees.
Morgan, Byerly, Post Van Anda, for defendant Tatum, appellant.
WINBORNE, C.J., dissenting.
PARKER, J., joins in dissent.
Civil action by the executors to have the court determine, by declaratory judgment, the rights of Hamilton B. Tatum under the will of Nancy E. Bencini. The pertinent facts are stipulated. In substance they are: Nancy E. Bencini executed her will on October 22, 1948. She died on March 6, 1960. The estate consists entirely of personalty. The will did not contain a residuary clause. Item First disposed of the entire estate: "I give, devise and bequeath all of my property, both real and personal, wherever situate, to my four children, Robert E. Bencini, Robah B. Tatum, Grace B. Headen, Margaret B. Walker, and my granddaughter, Betty Bencini Jackson (the daughter of my deceased son, R. Banks Bencini) share and share alike."
Robah B. Tatum, daughter of testatrix, died on June 26, 1959. In 1924 she adopted for life the defendant, Hamilton B. Tatum. He survives as her only child. Among the facts stipulated are the following:
"7. From the date of the adoption of Hamilton B. Tatum by Robah B. Tatum in 1924, and until her death, the said Nancy E. Bencini, testatrix, treated the said Hamilton B. Tatum in the same manner and with the same apparent regard and affection as her natural grandchildren."
The court entered judgment in pertinent part:
"1. The Court finds that the defendant Hamilton B. Tatum, although lawfully adopted for life by the legatee, Robah B. Tatum, and did survive the testator, was not the issue of the legatee under the provisions of G.S. 31-42.1.
"2. That the legacy to Robah B. Tatum lapsed and the said Hamilton B. Tatum does not share in the estate of Nancy E. Bencini."
The appellant excepted to the conclusions and the judgment, and appealed.
The testatrix, Nancy E. Bencini, executed her will in 1948. She gave her daughter, Robah B. Tatum, one fifth of her estate which consisted entirely of personalty. The will did not contain a residuary clause. Robah B. Tatum died in June, 1959, leaving Hamilton B. Tatum, the appellant, whom she adopted in 1924 as her only child. The testatrix died in March, 1960. Does the legacy given to Robah B. Tatum go to the defendant, Hamilton B. Tatum, or does it lapse? The court held that the legacy lapsed and the adopted child does not share in the estate. The question here involves the property rights of an adopted child.
Three of our cases give the step-by-step history of an adopted child's property rights as they have been changed from time to time by legislative enactments: Wilson v. Anderson, 232 N.C. 212, 59 S.E.2d 836, decided June 9, 1950; Bradford v. Johnson, 237 N.C. 572, 75 S.E.2d 632, decided April 29, 1953; and Bennett v. Cain, 248 N.C. 428, 103 S.E.2d 510, decided May 21, 1958. The Bennett case was decided since the change in the adoption laws made by Chapter 813, Session Laws of 1955, now codified, in part, as G.S. 48-23, 1959 Cumulative Supplement. The Act became effective July 1, 1955. Among other things, it provided: The adopted child shall have the right "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." The Act further provides that after the adoption the natural parents cannot take from the adopted child, who likewise cannot take from the natural parents, either under the laws of descent or distribution.
The faculty of the University of North Carolina Law School and the student editors reviewed and summarized the legal effect of Chapter 813, Session Laws of 1955:
"Here is a simple and clear rule which eliminates all doubt as to the standing and rights of an adopted child. For all legal purposes he is in the same position as if he had been born to his adoptive parents at the time of the adoption. There is no need for any learned and complicated interpretations. Whatever the problem is concerning an adopted child, his standing and his legal rights can be measured by this clear test: `What would his standing and his rights be if he had been born to his adoptive parents at the time of the adoption?' If lawyers and courts will look to this plain language of the statute, and avoid making exceptions not made in this statutory statement, persons adopting children in North Carolina can legally realize what they have hoped for, namely that the child they adopt will become their child, theirs fully, just as if he had been born to them, and without any exceptions and qualifications imposed by law to thwart their purpose."
Chapter 813, Session Laws of 1955 is made retroactive to obviate the objection raised in Wilson v. Anderson, supra. "The provisions of this Act shall apply to adoptions, whether granted before or after the effective date of the Act, and Section 9 declared the effective date 1 July 1955. Here then is explicit language by the Legislature that the right of an adopted child to take property as a result of intestacy occurring subsequent to 1 July 1955, should be governed and controlled by the statutes of descent and distribution." Bennett v. Cain, supra.
The appellees have argued that Hamilton B. Tatum is not issue of the legatee Robah B. Tatum and, therefore, the legacy lapsed under G.S. 31-42.1. Even if it be conceded the adoption statute does not repeal all inconsistent provisions of law, as it provides, and does not in effect constitute the adopted child issue, (and we make no such concession) nevertheless, his rights to claim the legacy and prevent its lapse is protected by the alternative provision of the section. . . "or would have been a distributee of the estate of the testator if the legatee had survived the testator and there had been no will." (emphasis added)
Any provision of law which prevented an adopted child from sharing in property by descent or distribution in the same manner and to the same extent as a natural born child, was swept away by the repealing clause in Chapter 813, Session Laws of 1955. In language too clear for misunderstanding, the Legislature has provided that an adopted child from the date of its adoption shall have the same property rights as a natural born child from the date of its birth. In order to implement this legislative command, we must hold that Hamilton B. Tatum is entitled to receive the share given to his adoptive mother in the will of Nancy E. Bencini. Nothing in the will indicates any intent to the contrary.
The judgment of the Superior Court of Guilford County is
Reversed.