256 N.C. 485 | N.C. | 1962
The appellant makes two contentions: First: That Fanida Cale Johnson, an after-born child, is entitled to share in her father's estate, no provision having been made for her in his will. Second, if the court should hold the will manifests the testator’s intent that the after-born child should not share in his estate, nevertheless the will creates a trust, and that Christine C. Johnson holds as trustee for the benefit of herself and of any children in esse at the date of the testator’s death.
The controlling statute is G.S. 31-5.5: “A will shall not be revoked by the birth of a child ... to the testator after the execution of the will, but any such after-born . . . child shall be entitled to such share in
Mr. Johnson knew his will would take effect at his death. In plain and simple language he gave his estate to his wife in fee — nothing to Elizabeth Ann Johnson, his only child, then two years of age. Obviously he intended that any after-born child or children should fall in the same category as Elizabeth Ann and should not share in the estate. The use of the words “our children” is conclusive of this intent. The testator in the will assigned two reasons for the gift in fee to the wife: (1) “Knowing full well she will use the same for the benefit of herself and our children.” (2) “I do this in order that she may carry on any business that I may own without the necessity of a sale of any part of my property.” Sheppard v. Kennedy, 242 N.C. 529, 88 S.E. 2d 760.
Nothing in the will indicates any intent to create a trust. On the contrary, the testator gives his property to his wife, not in trust, not charged with any burden, but in fee, “knowing full well” how she will use it. Clark v. Connor, 253 N.C. 515, 117 S.E. 2d 465; Morris v. Morris, 246 N.C. 314, 98 S.E. 2d 298; Andrew v. Hughes, 243 N.C. 616, 91 S.E. 2d 591.
The judgment entered in the Superior Court of Bertie County is
Affirmed.
