Pearsall, Mack B.

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Wills -- Anti-Lapse Statutes -- Adopted Children as Issue

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NORTH CAROLINA LAW REVIEWVolume 40 | Number 3 Article 204-1-1962Wills -- Anti-Lapse Statutes -- Adopted Children asIssueMack B. PearsallFollow this and additional works at: http://scholarship.law.unc.edu/nclrPart of the Law CommonsThis Note is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina LawReview by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact law_repository@unc.edu.Recommended CitationMack B. Pearsall, Wills -- Anti-Lapse Statutes -- Adopted Children as Issue, 40 N.C. L. Rev. 650 (1962).Available at: http://scholarship.law.unc.edu/nclr/vol40/iss3/20NORTH CAROLINA LAW REVIEWthe agent of the father if it is a motorboat instead of an auto-mobile, even though the motorboat be furnished for the pleas-ure of the son. When one considers contradictions such asthis, it becomes apparent that the Family Purpose Doctrine isnot as much an extension of the principles of master and serv-ant as an attempt to fix liability on one able to meet it.1 2Perhaps it would have been better if liability under the doctrinehad never been based on the theory of agency. If the courts hadfrankly stated that public policy required the adoption of the doctrine,they would not be haunted today by the inconsistency of their logicwhen refusing to apply the doctrine to new instrumentalities. Butsince social and economic considerations do not require an extensionof the doctrine to motorboats, it is submitted that the decision of theNorth Carolina court in the principal case is correct.However, it appears inconsistent to insist on legislative actionbefore extending the doctrine to other instrumentalities in light ofthe fact that the doctrine was first adopted by the court.13 The courtdid not require such action when it was faced with the great socialimpact brought about by the advent and ever increasing use of theautomobile. Certainly, if the social and economic demands, oncepresented by the automobile, should call for an extension of the doc-trine to other instrumentalities, the court should not fail to heedthis call.SAMUEL S. WOODLEY, JR.Wills-Anti-Lapse Statutes-Adopted Children as IssueIn Headen v. Jackson' testatrix bequeathed all her property,which consisted solely of personalty, to her four children and hergranddaughter, share and share alike. One of the children pre-deceased testatrix and left as her only survivor an adopted child.After the testatrix's death the question arose whether theadopted child could be substituted as beneficiary in his mother's placeand thereby prevent any lapse of the bequest. In a declaratory judg-ment action to determine the adopted child's rights, the lower courtSare v. Stetz, 67 Wyo. 55, 74-75, 214 P.2d 486, 493 (1950), citingNote, 16 No=E DAmE LAW. 394, 396 (1941)."8 The court in the principle case stated: "In this State [the doctrine] isnot the result of legislative action, but is a rule of law adopted by the Court."254 N.C. at 571, 119 S.E.2d at 787.1255 N.C. 157, 120 S.E.2d 598 (1961).[Vol. 40NOTES AND COMMENTSconcluded that the child was not an "issue" within the meaning ofG.S. § 31-42.12 which provides,Unless a contrary intent is indicated by the will, where alegacy of any interest in personal property not terminable ator before death of the legatee is given to a legatee who pre-deceases the testator, such legacy does not lapse but passes tosuch issue of the legatee as survive the testator in all caseswhere the legatee is issue of the testator or would have beena distributee of the testator if the legatee had survived thetestator and there had been no will.On appeal the supreme court held that the adopted child was an"issue" within the meaning of the statute; therefore, the gift to hismother did not lapse.' In reaching this decision the court reliedprimarily upon the portion of the adoption statute which reads, "Anadopted child shall have the same legal status, including all legalrights and obligations of any kind whatsoever, as he would have hadif he were born the legitimate child of the adoptive parent orparents . .. ."IThe court set out a clear test5 by which the rights of adoptedchildren should be governed and adhered to the plain-meaning rule,6'N.C. GEN. STAT. § 31-42.1 (Supp. 1961). (Emphasis added.)'The majority of the court seems to have misconstrued the provisions ofG.S. § 31-42.1 which provide that there should be no lapse i the bequest wasto child or other issue of the testator, or if the legatee would have been adistributee had the testator died intestate. In its opinion, the court indicatedthat even if the adopted child did not come within the term issue he couldstill take the share bequeathed his mother because he would have been adistributee of the testator had the testator died intestate. A careful readingof the statute discloses that this provision is applicable only to the originallegatee and not to the person to be substituted. This fact was pointed out bythe dissent.'N.C. GEN. STAT. §48-23(a) (Supp. 1961)."Whatever the problem is concerning an adopted child, his standing andhis legal rights can be measured by this clear test: 'What would his standingand his rights be if he had been born to his adoptive parents at the time ofthe adoption?' If lawyers and courts will look to this plain language of thestatute, and avoid making exceptions not made in this statutory statement,persons adopting children in North Carolina can legally realize what theyhave hoped for, namely that the child they adopt will become their child,theirs fully, just as if he had been born to them, and without any exceptionsand qualifications imposed by law to thwart their purpose." A Survey ofStatutory Changes in North Carolina in 1955, 33 N.C.L. Rxv. 521, 522(1955), quoted with approval in the principal case. 255 N.C. at 159, 120S.E.2d at 599-600.8 "[I]f, in any case, the plain meaning of a provision, not contradictedby any other provision in the same instrument, is to be disregarded, becausewe believe the framers of that instrument could not intend what they say, it19621NORTH CAROLINA LAW REVIEWin concluding that the statute left no room for interpretation otherthan that the adopted child was meant to be included within the term"issue" as found in the statute.The result reached by our court was certainly salutary and it doesnot appear to be out of line with what other jurisdictions have donewhen faced with the same problem. A review of those jurisdictionshaving the term "issue" in their anti-lapse statutes indicates that fourhave allowed the adopted child to be included ;" three have not ;8 andin twelve the question has never arisen.' Thus, the Headen casealigns North Carolina with the majority of those jurisdictions whichhave decided this precise question.This interpretation also seems to be in accord with the generalview today that an adopted child should be included within theterms child,' ° descendant," or heir," found in anti-lapse statutes.For many years, however, the view was that the adopted childmust be one in which the absurdity and injustice of applying the provisionto the case, would be so monstrous, that all mankind would, without hesita-tion, unite in rejecting the application." Sturges v. Crowninshield, 17 U.S.(4 Wheat.) 122, 202-03 (1819).Flynn v. Bredbeck, 147 Ohio St. 49, 68 N.E.2d 75 (1946); IndustrialTrust Co. v. Taylor, 69 R.I. 153, 32 A.2d 269 (1943); Craft v. Blass, 8Tenn. App. 498 (1928) ; In re Holcombe's Estate, 259 Wis. 642, 49 N.W.2d914 (1951).8 McLeod v. Andrews, 303 Ky. 46, 196 S.W.2d 473 (Ct. App. 1946);Arnold v. Helmer, 327 Mass. 722, 100 N.E.2d 886 (1951); In re Russell'sEstate, 284 Pa. 164, 130 Atl. 319 (1925)." Colorado, Connecticut, Delaware, Georgia, Kansas, Michigan, Minne-sota, Nebraska, South Carolina, Vermont, Virginia and West Virginia." Dean v. Smith, 195 Ark. 614, 113 S.W.2d 485 (1938) ; In re McEwan'sEstate, 128 N.J. Eq. 140, 15 A.2d 340 (Prerogative Ct. 1940); Smallwoodv. Smallwood, 121 N.J. Eq. 126, 186 Atl. 775 (Ct. Ch. 1936); In re Carle-ton's Will, 3 Misc. 2d 677, 151 N.Y.S.2d 338 (Surr. Ct. 1956); In re Hor-vath's Estate, 155 Misc. 734, 279 N.Y. Supp. 189 (Surr. Ct. 1935); In reFoster's Estate, 108 Misc. 604, 177 N.Y. Supp. 827 (Surr. Ct. 1919). Con-tra, Crawford v. Arends, 351 Mo. 1100, 176 S.W.2d 1 (1943); In re Martin'sWill, 133 Misc. 80, 230 N.Y. Supp. 873 (Surr. Ct. 1928), holding theadopted child did not qualify; however, in the case of In re Walter's Estate,270 N.Y. 201, 200 N.E. 786 (1936), the court said that the holding wasinconsistent with its views and did not meet its approval. See generallyMechem, Some Problems Arising Under Anti-Lapse Statutes, 19 IowA L.REv. 1, 5-6 (1933)."in re Tibbetts' Estate, 48 Cal. App. 2d 177, 119 P.2d 368 (Dist. Ct.App. 1941); Ii re Moore's Estate, 7 Cal. App. 2d 722, 47 P.2d 533 (Dist.Ct. App. 1935); In re Harmount's Estate, 336 Ill. App. 322, 83 N.E.2d 756(1949); Warren v. Prescott, 84 Me. 483, 24 Atl. 948 (1892); Hoellinger v.Molzhon, 77 N.D. 108, 41 N.W.2d 217 (1950); In re Buell's Estate, 167Ore. 295, 117 P.2d 832 (1941); See generally Annot., 19 A.L.R.2d 1159(1951). Contra, Raunch v. Metz, 212 S.W. 357 (Mo. 1919)."2 Clark v. Clark, 76 N.H. 551, 85 Atl. 758 (1913).[Vol. 40NOTES AND COMMENTSshould not be included within any of these terms.' 3 The principalreason for the earlier result seems to have been the concept thatadoption created a kinship only between the parties; therefore, theadopted child could not inherit from the collateral relatives of theadoptive parents.14 Some courts, however, refused to adopt thisrationale on the ground that this limitation on the child's inheritancewas applicable only to intestacy. 5 Others concluded that the childdid not seek to take by representation, but rather by the anti-lapsestatute itself which created in the child an original right to take.16If successful in meeting the limited inheritance argument, a courtconstruing the term issue would perhaps be confronted with theproblem that the blood relationship, which the term seems to connote,cannot be artificially created by statute.'7 The jurisdictions" whichnow include the adopted child within the term issue appear to have" See Gammons v. Gammons, 212 Mass. 454, 99 N.E. 95 (1912) (issue);Raunch v. Metz, 212 S.W. 357 (Mo. 1919) (lineal descendants); In reMartin's Will, 133 Misc. 80, 230 N.Y. Supp. 734 (Surr. Ct.), aff'd, 224 App.Div. 873, 230 N.Y. Supp. 873 (1928) (child); Phillips v. McConica, 59 OhioSt. 1, 51 N.E. 445 (1898) (issue); In re Russell's Estate, 284 Pa. 164, 130Atl. 319 (1925) (issue)."This argument would no longer appear to be tenable under modemadoption statutes, which have equated the adopted and natural child withrespect to the lineal and collateral relatives of the adoptive parents. For anexcellent comparative study of inheritance rights of adopted children in allAmerican jurisdictions, see Note, 25 BRooxLYN L. REv. 231, 242-46 (1959).See generally for the North Carolina view Hanft, Thwarting Adoptions, 19N.C.L. REv. 127, 149-51 (1941)."° In re Moore's Estate, 7 Cal. App. 2d 722, 47 P.2d 533 (Dist. Ct. App.1935) (lineal descendants) ; In re Foster's Estate, 108 Misc. 604, 177 N.Y.Supp. 827 (Surr. Ct. 1919) (child or descendant). Contra, In re Russell'sEstate, 284 Pa. 164, 130 Atl. 319 (1925) (issue). The court here held thatbecause the decedent had died testate, the status conferred upon the adoptedchild under intestate circumstances could not be used to bring the child withinthe term "issue" in the anti-lapse statute." In re Harmount's Estate, 336 Il. App. 322, 83 N.E.2d 756 (1949)(descendant) ; Warren v. Prescott, 84 Me. 483, 24 Atl. 948 (1892) (linealdescendants); Hoellinger v. Molzhon, 77 N.D. 108, 41 N.W.2d 217 (1950)(lineal descendant)."? Crawford v. Arends, 351 Mo. 1100, 176 S.W.2d 1 (1943) (lineal de-scendants) ; Phillips v. McConica, 59 Ohio St. 1, 51 N.E. 445 (1898) (issue).The dissenting opinion in the Headen case argued that "issue" in its ordinarymeaning meant a blood relationship existed. Accord, Barton v. Campbell,245 N.C. 395, 95 S.E.2d 914 (1957); Bradford v. Johnson, 237 N.C. 572,75 S.E.2d 632 (1953)."Flynn v. Bredbeck, 147 Ohio St. 49, 68 N.E.2d 75 (1946), overrulingPhillips v. McConica, 59 Ohio St. 1, 51 N.E. 445 (1898), which has arisenunder an earlier adoption statute; Harrison v. Hillegas, 13 Ohio Op. 523(P. Ct. 1939); Graves v. Graves, 155 N.E.2d 540 (Ohio P. Ct. 1956); In-dustrial Trust Co. v. Taylor, 69 R.I. 153, 32 A.2d 269 (1943) ; Craft v. Blass,8 Tenn. App. 498 (1928); In re Holcombe's Estates, 259 Wis. 642, 49N.W.2d 914 (1951).1962]NORTH CAROLINA LAW REVIEWabandoned strict adherence to the common law contruction of thatterm. Evidently they have concluded that legislatures have powerto fix the legal status of individuals and the manner in which theyshall be treated with respect to the devolution of property.Taking cognizance of the legislature's power in this respect,courts faced with the question of the inclusion of adopted childrenunder anti-lapse statutes have relied upon adoption statutes to de-termine what status has been bestowed upon such children. Oncestatus has been determined, the courts then look to the anti-lapsestatute to determine if the child has the status required by thatstatute. If it is determined that the adoption statute equates thenatural and adopted child in all respects, the courts conclude that theadopted child must be allowed the same privilege of being substitutedfor the predeceasing beneficiary as would a natural child.", Courtsfollowing this procedure to determine an adopted child's rights to sub-stitution necessarily consider legislative intent. In so doing, however,they do not limit their investigation solely to the intent behind theuse of the particular term in the anti-lapse statute. Rather they con-strue the legislative intent in the adoption statute in conjunctionwith the use of the particular term used in the anti-lapse statute todetermine what individuals were intended to be included therein.20The majority in the Headen case adhered to the above approachby first determining the adopted child's status under the adoptionstatute and applying this determination to the anti-lapse statute.Thus, the court refused to draw an arbitrary line of distinction be-tween the adopted and natural child when the legislature's expresslanguage was to the effect that no discrimination should exist.This type of judicial attitude would seem to be clearly in accordwith the legislative intent evidenced in the adoption statute ;21 thepurpose of adoption was to give the adoptive parents a child thatwould be a duplicate in all respects to a child which perhaps they" E.g., Flynn v. Bredbeck, 147 Ohio St. 49, 68 N.E.2d 75 (1946) ; Indus-trial Trust Co. v. Taylor, supra note 18; In re Holcombe's Estate, supranote 18. Contra, Arnold v. Helmer, 327 Mass. 722, 100 N.E.2d 886 (1951);Gammons v. Gammons, 212 Mass 454, 99 N.E. 95 (1912); In re Russell'sEstate, 284 Pa. 164, 130 Atl. 319 (1925). These cases were decided on thebasis that the adoption created a relation solely between the parties to theadoption or that the adoption statute did not sufficiently spell out that theadopted and natural child were to be equals in all respects.20 Cf. Craft v. Blass, 8 Tenn. App. 498 (1928) (the two statutes being inpari materia must be read together)." N.C. GEN. STAT. § 48-23 (Supp. 1961).[Vol. 40NOTES AND COMMENTScould not naturally bear. This desired equivalence cannot be achievedif the courts draw a line of distinction between the adopted andnatural child in the present situation.It is hoped that the court will continue to apply the test set out inthe Headen case whenever the rights of an adopted child are inquestion.22 However, in order to eliminate any further need forjudicial interpretation on the subject, it is submitted that the legis-lature incorporate this test into the adoption statute.Such action would be a clear indication that the legislature in-tended to include an adopted child within the term issue wheneverused by it in any statute. It is doubtful whether the court wouldforce this construction of the term when found in a will.2" Fear oftrespassing on the testator's intent would be a logical basis for re-fusing to construe the term to include an adopted child in such case.If this fear be a deterrent, there are yet two other alternatives whichmight solve the problem.The simplest of the two would be to replace the term "issue,"now in the anti-lapse statute, with the term "child." It wouldappear that the problem could be solved by this change in view ofthe express language in the present adoption statute to the effectthat the relation of parent and child is created by the adoption,24and recent cases holding that an adopted child comes within the term22 Notwithstanding the fact that the decision in the Headen. case was fiveto two, the dissenting Justices argued that past decisions of the court hadconcluded that as far as defining the term issue in will cases the term meantlawfully begotten heirs only. Accord, Barton v. Campbell, 245 N.C. 395,95 S.E.2d 914 (1957); Bradford v. Johnson, 237 N.C. 572, 75 S.E.2d 632(1953). They further argued that since there had been a recent change inthe adoption statutes but no corresponding change in the anti-lapse statutethe legislature had not intended the adopted child to be allowed the benefit ofthe latter.2' In view of relatively late cases holding that the term issue in a willdoes not include an adopted child, Barton v. Campbell, supra note 22, andBradford v. Johnson, supra note 22, it seems doubtful that the Headen deci-sion will affect the term in will cases. In both of the above cases the courtconcluded that, as found in a will, the term issue in its natural and ordinarymeaning meant lawfully begotten heirs of the body and that, notwithstandingthe fact an adopted child could inherit by, through and from its adoptiveparents, adoption could create only a legal relation and not one by blood.The Headen case dealt solely with the legislative intent behind the term ina statute and was in no way concerned with the intent of a testator. In ananalogous situation the Wisconsin Supreme Court, having previously heldthat an adopted child came within the term issue as used in the anti-lapsestatute, it re Holcombe's Estate, 259 Wis. 642, 49 N.W.2d 914 (1951), re-fused to include an adopted child within the same term found in a will. It reBreese's Estate, 7 Wis. 2d 422, 96 N.W.2d 712 (1959)."N.C. GEN. STAT. § 48-23(a) (Supp. 1961).1962]NORTH CAROLINA LAW REVIEWchildren found in a will.25 Alternatively, an amendment could bemade to the present anti-lapse statute which would provide that anadopted child is to be considered within the term "issue" as usedtherein. In making such a change, the legislature would merelyindulge the presumption that the testator would have desired theadopted child to receive equal treatment with the natural child of theoriginal beneficiary. In view of the fact that the anti-lapse statutehas as its basis a legislative presumption 26 that the testator wouldhave made provision for the predeceasing beneficiary's issue had heknown of the beneficiary's death, indulgence of this further presump-tion would not appear to be out of line with what has already beendone.MACK B. PEARSALL"E.g., Bullock v. Bullock, 251 N.C. 559, 111 S.E.2d 837 (1960); Wa-chovia Bank & Trust Co. v. Green, 239 N.C. 612, 80 S.E.2d 771 (1954)."' "These statutes are said to be based upon the presumption that testatorwould have made provision for certain relatives of the deceased beneficiary,if his intention [sic] had been called to the death of the beneficiary, and hehad had the opportunity to make such provision." 4 PAGE, WILLS § 1422, at176 (Lifetime ed. 1941).[Vol. 40

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Wills -- Anti-Lapse Statutes -- Adopted Children as Issue

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