Simpson v. Simpson

222 S.E.2d 747 (1976)

Mary Helen Newsom SIMPSON and husband, Daryl Simpson, Petitioners, v. Nicholas Carroll SIMPSON et al., Respondents.

No. 757SC813.

Court of Appeals of North Carolina.

March 17, 1976.

*748 Parker, Miles & Hinson by Walter L. Hinson, Wilson, guardian ad litem for Mary Emma Simpson and Virginia Ann Simpson, respondents-appellants.

Narron, Holdford, Babb & Harrison by R. W. Harrison, Jr., Wilson, guardian ad litem for Julian Edward Simpson, respondent-appellee.

MARTIN, Judge.

The sole question presented by this appeal is whether the court erred in concluding as a matter of law that adopted children of the petitioners, Nicholas Carroll Simpson and Julian Edward Simpson, are devisees under the will of L. E. Newsom fully and to the same extent as are the natural-born children, Mary Emma Simpson and Virginia Ann Simpson.

G.S. 48-23 provides, in pertinent part:

"The following legal effects shall result from the entry of every final order of adoption: (1) The final order forthwith shall establish the relationship of parent and child between the petitioners and 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 relating to intestate succession. 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. * * * * * * (3) From and after the entry of the final order of adoption, the words `child,' `grandchild,' `heir,' `issue,' `descendant,' or an equivalent, or the plural forms thereof, or any other word of like import in any deed, grant, will or other written instrument shall be held to include any adopted person, unless the contrary plainly appears by the terms thereof, whether such instrument was executed before or after the entry of the final order of adoption and whether such instrument was executed before or after the enactment of this section."

The express provisions of paragraph (3) of the statute state that in a will the word "child" shall be construed to include any adopted person unless the contrary plainly appears by the terms of the will itself. This rule of construction shall apply whether the will was executed before or after the final order of adoption and whether the will was executed before or after the enactment of the statute. Peele v. Finch, 284 N.C. 375, 200 S.E.2d 635 (1973); Stoney v. MacDougall, 28 N.C.App. 178, 220 S.E.2d 368 (1975).

*749 We find nothing in the devise made by the will of L. E. Newsom to indicate an intention to exclude adopted children.

For the reasons stated, the judgment appealed from is

Affirmed.

BRITT and HEDRICK, JJ., concur.