Johnson v. Johnson

Supreme Court of North Carolina

Johnson v. Johnson

124 S.E.2d 172, 256 N.C. 485, 1962 N.C. LEXIS 474

CourtSupreme Court of North Carolina

DecidedMarch 7, 1962

StatusPublished

Cited by3 cases

This text of 124 S.E.2d 172 (Johnson v. Johnson) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Johnson v. Johnson, 124 S.E.2d 172, 256 N.C. 485, 1962 N.C. LEXIS 474 (N.C. 1962).

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Opinion

Higgins, J.

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 [487]*487testator’s estate as it would be entitled to if the testator had died intestate, unless (1) the testator made some provision in the will for the child; (2) it is apparent from the will itself that the testator intentionally did not make specific provision therein for the child.”

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.

WiNboene, C.J., not sitting.

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Higgins, J.

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 [487]*487testator’s estate as it would be entitled to if the testator had died intestate, unless (1) the testator made some provision in the will for the child; (2) it is apparent from the will itself that the testator intentionally did not make specific provision therein for the child.”

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.

WiNboene, C.J., not sitting.

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124 S.E.2d 172, 256 N.C. 485, 1962 N.C. LEXIS 474, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-johnson-nc-1962.

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