Barton v. CampbellBarton v. Campbell
- Reporters:
- , ,
- Before:
- HiggiNs
Two questions are presented for decision: (1) Does item First of the will рlace a limitation upon the title to personal proрerty bequeathed to the plaintiff? (2) If so, is the limitation satisfied and removed by the adoption of Sylvia and Samuel Barton?
In finding the answer to question (1), we must recognize that the intention of the testatrix is her will. Woodard v. Clark, 234 N.C. 215, 66 S.E. 2d 888. The intent must bе carried out unless some rule of law forbids it. Hummell v. Hummell, 241 N.C. 254, 85 S.E. 2d 144; Trust Co. v. Green, 238 N.C. 339, 78 S.E. 2d 174.
When the testatrix said the property bequeathed “shall go back to my estate” if the legatee “shall never have any bodily heirs,” the expressed intent doеs not violate any rule of law. “The rule is well established that personal property as well as real estate is a proper subject of executory interest and limitation, provided the cоntingency operating to defeat the estate of the first takеr is no more remote than *397 the law allows.” (Rule against Perpetuities.) Woodard v. Clark, 236 N.C. 190, 72 S.E. 2d 433; Thompson on Wills, 433, sec. 357; Zollicoffer v. Zollicoffer, 20 N.C. 574; Jones v. Spaight, 4 N.C. 157.
“The rule has been applied in like mаnner where there was a gift generally to the first taker of (1) speсific personal property, or (2) the entire estate of testator, or (3) the residue of the estate with a limitation over to оthers in the event the original donee should die without issue or upon some other contingency.” (Citing cases.) “When such future interest is created by will it is valid and vests in the ulterior taker an enforceable title either vested or contingent, depending on the condition or event upon the happening of which the right of possession is made to rest.” Woodard v. Clark, 236 N.C. 190, 72 S.E. 2d 433.
From the foregoing we conclude the provision in the will is valid аnd in the event D. Barton dies without bodily heirs, the personal property bequeathed to him must go to the ulterior legatees.
Proceеding to the second question: Does the adoption for life of Sylviа and Samuel Barton satisfy the limitation in the will by making them bodily heirs of D. Barton? By thе laws of adoption, for the purposes of inheritance and distribution, they became the children of D. Barton. They are his children nоt by birth, that is by blood relationship, but by law. Adoption did not make them the bodily heirs of their adopting father. Bradford v. Johnson, 237 N.C. 572, 75 S.E. 2d 632; Smyth v. McKissick, 222 N.C. 644, 24 S.E. 2d 621; Grimes v. Grimes, 207 N.C. 778, 178 S.E. 573. Bradford v. Johnson was decided in April, 1953, since the 1947 Amendment.
“And regardless of any provisions that may be contained in an adoption law with respect to the pаrent and child relationship, or the right of the adopted child to take by, through, and from its adoptive parents, the adoption of а child under such law does not make such adopted child a lawfully begotten heir of the bodies of the adoptive parents.” Bradford v. Johnson, supra. Trust Co. v. Green, supra. The wоrds, “bodily heirs,” “heirs of the body,” “lawfully begotten heirs of the body,” are synonymоus. Albright v. Albright, 172 N.C. 351, 90 S.E. 303.
The laws of adoption can create a legal relаtionship but they cannot create a blood relationship. A testator has the right to give his property exclusively to those of his own blood. The children of D. Barton by adoption do not meet and satisfy the limitation in the will.
We conclude the plaintiff is entitled to receive from the administrator c.t.a., d.b.n. all the personal estate of the testatrix, except the household goods, and to use the incomе therefrom. And in the event he has a bodily heir, his ownership shall become absolute. But if he should die without a bodily heir, the limitation becomes effective and his estate *398 must account to the legatees of the testatrix for the corpus of the fund. Woodard v. Clark, supra.
The provision in the judgment of the Superior Court of Robeson County that D. Barton shall be the absolute ownеr of the personal property bequeathed in item First of the will is modified in accordance with this opinion. As thus modified, the judgment is affirmed.
Modified and affirmed.
JOHNSON, J., not sitting.