DeNNY, J.
The appellant seriously contends that in order to ascertain whether the testator intended to include the adopted children of Ottis
Green, Jr., and bis wife, Virginia E. Green, as ultimate beneficiaries under paragraph 4, Item X of bis will tbe trial court should have permitted her to introduce evidence bearing upon such intention.
Tbe record discloses that tbe court below, upon a consideration of tbe allegations in tbe complaint and the answers thereto, including tbe will of Gay Green, and after bearing and considering tbe arguments of counsel for tbe respective parties, held that “no issue or incidental questions of fact arise therefrom necessary to tbe determination of tbe controversy before us.”
The appellant contends, however, that it was not necessary for this Court to remand tbe case when it was beard on tbe former appeal, unless we intended to give her an opportunity to introduce evidence and to have tbe court find tbe facts and enter its conclusions of law thereon, citing G.S. 7-11;
Mining Co. v. Mills Co.,
181 N.C. 361, 107 S.E. 216;
Knight v. Little,
217 N.C. 681, 9 S.E. 2d 377;
Suddreth v. Charlotte,
223 N.C. 630, 27 S.E. 2d 650.
Ordinarily, upon appeal to this Court we do not pass upon questions raised but not ruled upon in tbe court below. See
Woodard v. Clark,
234 N.C. 215, 66 S.E. 2d 888, in which
Barnhill, J.,
now
Chief Justice,
discussed tbe reason for remanding such cases. Furthermore, tbe mere fact that occasionally this Court, in its discretion, considers tbe merits involved in a case although not properly presented, as it did in
Suddreth v. Charlotte, supra,
does not bind us to follow that course in all such cases.
Tbe appellant is relying principally upon our decisions in
Bradford, v. Johnson,
237 N.C. 572, 75 S.E. 2d 632, and
Smyth v. McKissick,
222 N.C. 644, 24 S.E. 2d 621. In our opinion tbe facts in those cases are clearly distinguishable from those in tbe instant case.
In
Smyth v. McKissick, supra,
Ellison A. Smyth created an irrevocable trust agreement in 1932 for the benefit of certain named beneficiaries. Thereafter, in 1934, be executed a will under the terms of which the remainder of bis estate was put in trust for the benefit of the same beneficiaries named in the trust indenture. Tbe final distribution of the
corpus
of the trust under the will was directed to be made “upon the death of all,” the testator’s children and the death or remarriage of bis daughter-in-law, but in no event earlier than 1944. Tbe estate was then to be distributed to the children of bis deceased children. Thomas Smyth, one of the children of James Adger Smyth (a son of the testator who died prior to the execution of the will), and a grandson of the testator, Ellison A. Smyth, was married in November, 1932, to Frances Thrower Smyth. Having no children born to them, in 1938 they adopted for life David Hutchinson Smyth. It was admitted that the testator knew and approved of the adoption. He treated the child as be did the children born to bis other grandchildren, giving him presents
and keeping a photograph of him in his home. Thomas Smyth died in April, 1941, leaving a last will and testament by which he disposed of all his property to his widow. The testator, Ellison A. Smyth, died 3 August, 1942.
This Court, in passing upon the interest of the adopted child in the irrevocable trust which was created in 1932, held that the trust indenture was effective from the date of its execution and the adopted child took nothing thereunder. But, since the will did not become effective until the death of the testator and the testator knew and approved of the adoption, the adopted child took under the provisions of the will. The Court, in speaking through
Devin, J.,
later
Chief Justice,
said: “The will of Ellison A. Smyth spoke from his death in 1942. At that time Thomas Smyth was dead, leaving an adopted child. David Hutchinson Smyth had become in law the child of Thomas Smyth and Frances Thrower Smyth, as respects them, as much so as if he had been born to them by natural law. While his adoption did not constitute him an heir of Ellison A. Smyth
(Grimes v. Grimes,
207 N.C. 778, 178 S.E. 573), yet as the lawful child of Thomas Smyth he was entitled to take in substitution and as representative of his adopting father. He was then qualified in every legal aspect, as the ‘child’ of Thomas Smyth, to step into his father’s shoes, and as the son of his father take property rights which had been set aside for his father.”
Of. Tankersley v. Davis,
195 N.C. 542, 142 S.E. 765.
The case of
Bradford v. Johnson, supra,
was heard upon the pleadings and certain facts agreed upon and set out in the judgment. The testator, John M. W. Hicks, established twelve equal and separate residuary Trusts for certain of his nieces and nephews for and during their respective lives. Each separate Trust was to cease and determine at the death of the life beneficiary thereunder. Upon the termination thereof the
corpus
of the Trust was to be divided so far as practicable in kind among the surviving children of the life beneficiary under that particular Trust. The property, which consisted altogether of personalty, was to be transferred and paid over to them absolutely and free from any Trust, and in equal shares, ■share and share alike,
per capita
and not
per stirpes.
The will of John M. W. Hicks was executed on 8 December, 1926, and .a codicil thereto was executed on 1 March, 1935. The testator died on 17 March, 1944. A nephew, Marion E. Wyatt, who was a life beneficiary under one of the twelve Trusts, adopted a child on 2 December, 1929, for life. We held that this adopted child, Marion E. Wyatt, Jr., was included in the word “children,” used to designate the class which is to take under the will upon the termination of the Trust under which Marion E. Wyatt is the life beneficiary.
Tbe general rule is that where no language showing a contrary intent appears in a will, a child adopted either before or after the execution of the will, but prior to the death of the testator, where the testator knew of the adoption in ample time to have changed his will so as to exclude such child if he so desired, such adopted child will be included in the word “children” when used to designate a class which is to take under the will.
Bradford v. Johnson, supra,
and cited cases.
The dispositive provisions of a will speak as of the death of the testator. G.S. 31-41;
Trust Co. v. Waddell,
237 N.C. 342, 75 S.E. 2d 151;
Ferguson v. Ferguson,
225 N.C. 375, 35 S.E. 2d 231;
Smyth v. McKissick, supra.
However, the fact that a will speaks from the death of the testator, “relates to the subject matter of disposition only, and does not in any manner interfere with the construction in regard to the objects of the gift.”
Hines v. Mercer,
125 N.C. 71, 34 S.E. 106;
Robbins v. Windly,
56 N.C. 286.
Free access — add to your briefcase to read the full text and ask questions with AI
DeNNY, J.
The appellant seriously contends that in order to ascertain whether the testator intended to include the adopted children of Ottis
Green, Jr., and bis wife, Virginia E. Green, as ultimate beneficiaries under paragraph 4, Item X of bis will tbe trial court should have permitted her to introduce evidence bearing upon such intention.
Tbe record discloses that tbe court below, upon a consideration of tbe allegations in tbe complaint and the answers thereto, including tbe will of Gay Green, and after bearing and considering tbe arguments of counsel for tbe respective parties, held that “no issue or incidental questions of fact arise therefrom necessary to tbe determination of tbe controversy before us.”
The appellant contends, however, that it was not necessary for this Court to remand tbe case when it was beard on tbe former appeal, unless we intended to give her an opportunity to introduce evidence and to have tbe court find tbe facts and enter its conclusions of law thereon, citing G.S. 7-11;
Mining Co. v. Mills Co.,
181 N.C. 361, 107 S.E. 216;
Knight v. Little,
217 N.C. 681, 9 S.E. 2d 377;
Suddreth v. Charlotte,
223 N.C. 630, 27 S.E. 2d 650.
Ordinarily, upon appeal to this Court we do not pass upon questions raised but not ruled upon in tbe court below. See
Woodard v. Clark,
234 N.C. 215, 66 S.E. 2d 888, in which
Barnhill, J.,
now
Chief Justice,
discussed tbe reason for remanding such cases. Furthermore, tbe mere fact that occasionally this Court, in its discretion, considers tbe merits involved in a case although not properly presented, as it did in
Suddreth v. Charlotte, supra,
does not bind us to follow that course in all such cases.
Tbe appellant is relying principally upon our decisions in
Bradford, v. Johnson,
237 N.C. 572, 75 S.E. 2d 632, and
Smyth v. McKissick,
222 N.C. 644, 24 S.E. 2d 621. In our opinion tbe facts in those cases are clearly distinguishable from those in tbe instant case.
In
Smyth v. McKissick, supra,
Ellison A. Smyth created an irrevocable trust agreement in 1932 for the benefit of certain named beneficiaries. Thereafter, in 1934, be executed a will under the terms of which the remainder of bis estate was put in trust for the benefit of the same beneficiaries named in the trust indenture. Tbe final distribution of the
corpus
of the trust under the will was directed to be made “upon the death of all,” the testator’s children and the death or remarriage of bis daughter-in-law, but in no event earlier than 1944. Tbe estate was then to be distributed to the children of bis deceased children. Thomas Smyth, one of the children of James Adger Smyth (a son of the testator who died prior to the execution of the will), and a grandson of the testator, Ellison A. Smyth, was married in November, 1932, to Frances Thrower Smyth. Having no children born to them, in 1938 they adopted for life David Hutchinson Smyth. It was admitted that the testator knew and approved of the adoption. He treated the child as be did the children born to bis other grandchildren, giving him presents
and keeping a photograph of him in his home. Thomas Smyth died in April, 1941, leaving a last will and testament by which he disposed of all his property to his widow. The testator, Ellison A. Smyth, died 3 August, 1942.
This Court, in passing upon the interest of the adopted child in the irrevocable trust which was created in 1932, held that the trust indenture was effective from the date of its execution and the adopted child took nothing thereunder. But, since the will did not become effective until the death of the testator and the testator knew and approved of the adoption, the adopted child took under the provisions of the will. The Court, in speaking through
Devin, J.,
later
Chief Justice,
said: “The will of Ellison A. Smyth spoke from his death in 1942. At that time Thomas Smyth was dead, leaving an adopted child. David Hutchinson Smyth had become in law the child of Thomas Smyth and Frances Thrower Smyth, as respects them, as much so as if he had been born to them by natural law. While his adoption did not constitute him an heir of Ellison A. Smyth
(Grimes v. Grimes,
207 N.C. 778, 178 S.E. 573), yet as the lawful child of Thomas Smyth he was entitled to take in substitution and as representative of his adopting father. He was then qualified in every legal aspect, as the ‘child’ of Thomas Smyth, to step into his father’s shoes, and as the son of his father take property rights which had been set aside for his father.”
Of. Tankersley v. Davis,
195 N.C. 542, 142 S.E. 765.
The case of
Bradford v. Johnson, supra,
was heard upon the pleadings and certain facts agreed upon and set out in the judgment. The testator, John M. W. Hicks, established twelve equal and separate residuary Trusts for certain of his nieces and nephews for and during their respective lives. Each separate Trust was to cease and determine at the death of the life beneficiary thereunder. Upon the termination thereof the
corpus
of the Trust was to be divided so far as practicable in kind among the surviving children of the life beneficiary under that particular Trust. The property, which consisted altogether of personalty, was to be transferred and paid over to them absolutely and free from any Trust, and in equal shares, ■share and share alike,
per capita
and not
per stirpes.
The will of John M. W. Hicks was executed on 8 December, 1926, and .a codicil thereto was executed on 1 March, 1935. The testator died on 17 March, 1944. A nephew, Marion E. Wyatt, who was a life beneficiary under one of the twelve Trusts, adopted a child on 2 December, 1929, for life. We held that this adopted child, Marion E. Wyatt, Jr., was included in the word “children,” used to designate the class which is to take under the will upon the termination of the Trust under which Marion E. Wyatt is the life beneficiary.
Tbe general rule is that where no language showing a contrary intent appears in a will, a child adopted either before or after the execution of the will, but prior to the death of the testator, where the testator knew of the adoption in ample time to have changed his will so as to exclude such child if he so desired, such adopted child will be included in the word “children” when used to designate a class which is to take under the will.
Bradford v. Johnson, supra,
and cited cases.
The dispositive provisions of a will speak as of the death of the testator. G.S. 31-41;
Trust Co. v. Waddell,
237 N.C. 342, 75 S.E. 2d 151;
Ferguson v. Ferguson,
225 N.C. 375, 35 S.E. 2d 231;
Smyth v. McKissick, supra.
However, the fact that a will speaks from the death of the testator, “relates to the subject matter of disposition only, and does not in any manner interfere with the construction in regard to the objects of the gift.”
Hines v. Mercer,
125 N.C. 71, 34 S.E. 106;
Robbins v. Windly,
56 N.C. 286. Consequently, it is well settled in this jurisdiction that the intent of the testator is to be ascertained, if possible, from a consideration of the language used by him, and “the will is to be considered in the light of the conditions and circumstances existing
at the time the will was made.” Trust Co. v. Waddell, supra; Trust Co. v. Schneider,
235 N.C. 446, 70 S.E. 2d 578;
In re Will of Johnson,
233 N.C. 570, 65 S.E. 2d 12;
Cannon v. Cannon,
225 N.C. 611, 36 S.E. 2d 17;
Heyer v. Bulluck,
210 N.C. 321, 186 S.E. 356;
Scales v. Barringer,
192 N.C. 94, 133 S.E. 410;
Raines v. Osborne,
184 N.C. 599, 114 S.E. 849;
Herring v. Williams,
153 N.C. 231, 69 S.E. 140.
In
Smyth v. McKissicle, supra,
David Hutchinson Smyth was adopted some four years prior to the death of the testator, and there was nothing in his will to indicate that he intended to exclude an adopted child.
Likewise, in
Bradford v. Johnson, supra,
Marion F. Wyatt, Jr., was adopted more than fourteen years prior to the death of the testator and the will contained no provisions that would indicate an intention to exclude an adopted child of any niece or nephew.
We construe the provisions of the last will and testament of Gay Green, however, to indicate an intention to limit the beneficiaries of his estate to those of his blood.
It would be difficult indeed to understand why the testator limited the benefits under both Trusts established by his will, except for certain life beneficiaries, to his niece Marion Green Johnston, his nephew, Ottis Green, Jr., and the children of Marion Green Johnston, and to such children as should thereafter be born to either his niece or nephew, if he intended that an adopted child should share in the final distribution of the
corpus
of the estate.
It is true that paragraph 4, Item X of the testator’s will calls for the distribution of the
corpus
of the Trust when terminated to “be paid and
delivered, share and share alike, to the children of Marion Green Johnston and the children of Ottis Green, Jr.” Nevertheless, we hold that the word “children,” as used in paragraph 4, Item X, means children as described in the other parts of his will, to wit: children born to either his niece or nephew.
It is a well settled rule of testamentary construction that “if it is apparent that in one use of a word or phrase a particular significance is attached thereto by the testator, the same meaning will be presumed to be intended in all other instances of the use by him of the same word or phrase.”
Carroll v. Herring,
180 N.C. 369, 104 S.E. 892;
Taylor v. Taylor,
114 N.C. 537, 94 S.E. 7;
Grandy v. Sawyer,
62 N.C. 8;
Lochhart v. Lockhart,
56 N.C. 205;
Gibson v. Gibson,
49 N.C. 425; 57 Am. Jur., Wills, section 1152, page 750, and cited cases; 69 C.J., Wills, section 1131 (2), page 77.
Furthermore, if the intent of the testator may be ascertained from a consideration of his will from its four corners, extrinsic evidence is not admissible for the purpose of overruling the intent expressed therein.
Reynolds v. Trust Co..,
201 N.C. 267, 159 S.E. 416;
Kidder v. Bailey,
187 N.C. 505, 122 S.E. 22;
Williams v. Bailey,
178 N.C. 630, 101 S.E. 105;
McDaniel v. King,
90 N.C. 597.
The conclusions we reached on the former appeal, together with the views expressed herein, lead us to the conclusion that the rulings of the court below were correct.
The judgment of the court below is
Affirmed.