Stoney v. MacDougall

220 S.E.2d 368 (1975)

28 N.C. App. 178

Mary Kistler STONEY et al. v. Roderick M. MacDOUGALL, Trustee under the Will of Charles E. Kistler, et al.

No. 7525SC523.

Court of Appeals of North Carolina.

December 17, 1975.

Certiorari Denied February 3, 1976.

*369 Hudson, Petree, Stockton, Stockton & Robinson by H. G. Hudson, Winston-Salem, for plaintiff-appellees.

Everett, Everett, Creech & Craven by James B. Craven, III, Durham, for defendant-appellees.

Simpson, Martin, Baker & Aycock by Wayne W. Martin, Morganton, for defendant-appellants.

Certiorari Denied by Supreme Court February 3, 1976.

MARTIN, Judge.

The question presented by this appeal is whether the court erred in finding as a fact and concluding as a matter of law that the adopted children of Andrew M. Kistler, II, and their issue, are and will be issue of Charles E. Kistler under Article Ten, Paragraph 2(h) of the will of Charles E. Kistler, and, as such issue, whether they have the rights of beneficiaries under the said will in the same manner and with the same effect as if they were natural legitimate issue of Charles E. Kistler.

The adopted children of Andrew Kistler, II, were not born when Charles E. Kistler died. Moreover, at the time Charles E. Kistler executed his will, an adopted child was incapable of inheriting from the ancestor of the adoptive parents. Consequently, at the time Charles E. Kistler executed his will, there was nothing in our statutes of descent and distribution or in our adoption laws to indicate that he had any idea that by creating a trust providing that upon its termination the principal was to be distributed to "my issue", he would or could include any child except a child or children of his blood.

After having been amended and rewritten from time to time following the death of Charles E. Kistler, the statute was again rewritten in 1963, and now under the designation of G.S. § 48-23 provides, in its pertinent parts:

"The following legal effects shall result from the entry of every final order of adoption: . . . . . (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."

Clearly, the express provision of the statute is that in any will, the word "issue" *370 shall be held to include any adopted person, unless the contrary plainly appears by the terms of the will itself. It is also expressly provided by the statute that such rule of construction shall apply whether the will was executed before or after the final order of adoption and irrespective of 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).

Appellants contend that by using the phrase "my issue", the testator intended to exclude adopted persons from distribution of the principal upon termination of the trust. The use of the words, "my issue" is not a plain indication of a contrary intent by the terms of the will sufficient to prevent the adopted children of Andrew M. Kistler, II from sharing in the distribution of the principal upon termination of the trust.

For the reasons stated, the judgment appealed from is

Affirmed.

MORRIS and PARKER, JJ., concur.