Greenlee v. Quinn

122 S.E.2d 409 (1961)

255 N.C. 601

Sam GREENLEE et al. v. Dan QUINN.

No. 309.

Supreme Court of North Carolina.

November 8, 1961.

*412 R. W. Wilson, Burnsville, for petitioners appellant.

John C. McBee II, Warren H. Pritchard, Spruce Pine, Anglin & Bailey, Burnsville, for defendant appellee.

WINBORNE, Chief Justice.

This appeal presents the following questions: (1) Did the legitimate children of a deceased mother, the mother having been born out of wedlock and legitimated by the subsequent intermarriage of her parents, inherit any interest in the real property of their maternal grandfather who died intestate in 1928? (2) Did said legitimate children inherit any interest in the real property of a legitimate paternal half-sister of their deceased mother, which half-sister died intestate in 1956 without lineal descendants?

Both questions must be answered in the affirmative.

(1) The record indicates that William Biddix died intestate in 1928 seized of Tracts 1 and 4 described in the petition, and that he was survived by his widow, Emma Biddix; his legitimate daughter, Flossie Gage; and the children and grandchildren of his deceased legitimated daughter, Sallie Carpenter. Accordingly, the rights of the parties in Tracts 1 and 4 must be determined by the laws of descent as they pertained in 1928.

At that time C.S. § 1654 provided as follows: "Rule 3. * * * The lineal descendants of any person deceased shall represent their ancestor, and stand in the same place as the person himself would have done had he been living."

By the express language of this statute, upon the death of William Biddix in 1928 the children of Sallie Carpenter inherited that interest in Tracts 1 and 4 which she herself would have inherited had she been living.

What interest then would Sallie have inherited? The record discloses that she was born out of wedlock prior to 1884; that her father was William Biddix, and her mother was Martha Mattie Hall, and that during the year 1884 William Biddix married Martha Mattie Hall.

In 1917 the General Assembly of North Carolina enacted a statute which in 1928 was C.S. § 279. It provided as follows: "When the mother of any bastard child and the reputed father of such child shall intermarry or shall have intermarried at any time after the birth of such child, the child shall in all respects after such intermarriage be deemed and held to be legitimate and entitled to all the rights in and to the estate, real and personal, of its father and mother that it would have had had it been born in lawful wedlock."

In this connection, the petitioners contend that "At the time William Biddix *413 married Martha the mother of Sallie, the marriage did not legitimate Sallie, and she remained illegitimate until the Act of 1917, which Act gave her the mere right, or possibility of inheritance. She died before her father, and consequently inherited nothing from him." Thus, petitioners argue, all of the lands of which William Biddix was seized at his death descended to his legitimate daughter, Flossie.

We cannot agree with this contention. In Stewart v. Stewart, 195 N.C. 476, 142 S.E. 577, this Court, speaking of C.S. § 279, said: "By its express language, the statute is retroactive as well as prospective." Therefore, a child who was born out of wedlock on 8 July, 1895, and whose mother and reputed father subsequently married on 29 July, 1895, was held to be the heir of the reputed father who died intestate in 1926, even though the legitimation statute, C.S. § 279, had not been enacted at the time of the intermarriage of the parents.

Therefore, in the instant case, had Sallie been living when her father died intestate in 1928 she and her paternal half-sister Flossie would each have inherited, subject to the widow's dower, a one-half undivided interest in all of the lands of which the deceased father died seized in fee. Since, however, Sallie was not living at that time, her lineal descendants, by representation, took that interest which Sallie would have inheriteda one-half undivided interest in Tracts 1 and 4 described in the petition.

(2) Prior to 1955, this Court held that statutes dealing with legitimation and creating rights of succession to property in a legitimated child are in derogation of the common law. Hence, they are strictly construed. In re Estate of Wallace, 197 N.C. 334, 148 S.E. 456, 64 A.L.R. 1121. Thus, in the Wallace case the Court reached the conclusion that since C.S. § 279 did not specifically provide for inheritance by a legitimated child except from his mother and father, such child could not inherit from a maternal uncle dying intestate.

However, in 1955 the Legislature, by Chapter 540, amended the statutes of descent and distribution and the statutes dealing with legitimation, and in each instance provided, in substance, that the legitimated child shall have the same right to inherit by, through, and from his father and mother as if such child had been born in lawful wedlock. G.S. §§ 28-149, 29-1, 49-11, and 49-12 (C.S. § 279), all as amended by Chap. 540, P.L.1955.

By Chap. 813 the Legislature enacted similar amendments to the statutes relating to inheritance by an adopted child. As amended, these statutes provide, in substance, that an adopted child shall be entitled to inherit property by, through, and from his adoptive parents as if he were born the legitimate child of the adoptive parents. G.S. §§ 28-149, 29-1, and 48-23, all as amended by Chap. 813, P.L.1955.

In construing the adoption statutes as amended, this Court, in Bennett v. Cain, 248 N.C. 428, 103 S.E.2d 510, reached the conclusion that an adopted child may inherit from a deceased brother of said child's adoptive parent.

Applying a similar interpretation to G.S. § 29-1 and G.S. § 49-12, as amended by Chap. 540, P.L.1955, we must conclude that the Legislature intended to confer upon the legitimated child the same right to inherit from collateral relations as it would have had had it been born in lawful wedlock.

Thus, had Sallie Carpenter been living in 1956, she would have been the next collateral relation of Flossie Gage, and, as such, she would have inherited all of Flossie's interests in the lands in question on this appeal Tracts 1, 2 and 4 described in the petition. Since Sallie Carpenter was not living at that time, her lineal descendants took such interests by representation, which interests were conveyed to defendant Quinn as stipulated above.

Hence, the judgment of the court below is

Affirmed.