Allen v. Allen

260 N.C. 431 | N.C. | 1963

Per Curiam.

On 15 December 1922 A. .E. Newton executed and ¡delivered to his daughter, Maggie Newton Allen, a deed conveying a tract of land “to Maggie Newton Allen, during her life, .and at her ■death to her children.” At the time of the execution and delivery of the deed Maggie Newton Allen was married ¡and had three young •children, the plaintiff® in -this action. The grantor, A. E. Newton, died in 1943. On December 20,1959, Maggie Newton Allen and her husband legally adopted Joyce Newton Allen, the defendant in this action. Joyce Newton (Allen) is the natural niece of Maggie Newton Allen and the natural granddaughter of A. E. Newton — ¡at ¡the time of her adoption her natural father was dead and her natural mother inoom-patent. Maggie New.ton Allen died intestate on 11 March 1962 leaving surviving ber the plaintiffs, who are her natural 'children, and the defendant, her adopted child.

The complaint present® only one question for decision: “Doss the defendant, who is a 'child adopted after the execution 'and delivery of the . . . deed, fall within the term ‘children’ .as used in said deed?”

The facts, as set out above, were stipulated by the parties. The court adjudged that the plaintiffs “are the owners in fee simple of the property described in . . . the complaint . . ., and that the defendant, Joyce Newton Allen, ha;s no right, title or interest therein -by virtue of the . . . deed.”

The judgment of the court below i® affirmed under authority of Thomas v. Thomas, 258 N.C. 590, 129 S.E. 2d 239. See also Smyth v. McKissick, 222 N.C. 644, 24 S.E. 2d 621. The iseoond sentence of G.S. 48-23 (a) wais not enacted' until 1955, and ha® no application to this deed executed in 1922.

Affirmed.