Barton v. Campbell, 742

• Decision Date: 11 January 1957
• Docket Number: No. 742,742
• Citation: 95 S.E.2d 914,245 N.C. 395
• Parties: D. BARTON v. John W. CAMPBELL, Administrator C.T.A., d.b.n., of the Estate of Rose Ann Barton, Deceased; Lucy B. Chavis, Mary B. Dial, Odom Barton, Hester B. Oxendine, Martha Lee Smith, Ella Barton, Blanche Oxendine, Leoia Barton, Vashti Barton, Mae Barton Locklear, Alsby Barton, Samuel Barton and Sylvia Barton; and any and all unborn children of D. Barton, and any and all unknown heirs of Rose Ann Barton.
• Court: North Carolina Supreme Court

Page 914

95 S.E.2d 914

245 N.C. 395

D. BARTON v. John W. CAMPBELL, Administrator C.T.A., d.b.n., of the Estate of Rose Ann Barton, Deceased; Lucy B. Chavis, Mary B Dial, Odom Barton, Hester B. Oxendine, Martha Lee Smith Ella Barton, Blanche Oxendine, Leoia Barton, Vashti Barton Mae Barton Locklear, Alsby Barton, Samuel Barton and Sylvia Barton; and any and all unborn children of D. Barton, and any and all unknown heirs of Rose Ann Barton.

No. 742

Supreme Court of North Carolina.

Jan. 11, 1957

N. L. Britt, Lumberton, for plaintiff, appellee.

Hackett & Weinstein, Robert Weinstein, Lumberton, for defendants, appellants.

HIGGINS, Justice.

Two questions are presented for decision: (1) Does item First of the will place a limitation upon the title to personal property bequeathed to the plaintiff? (2) If so, is the limitation satisfied and removed by the adoption of Sylvia and Samuel Barton?

In finding the answer to question (1), we must recognize that the intention of the testatrix is her will. Woodard v. Clark, 234 N.C. 215, 66 S.E.2d 888. The intent must be carried out unless some rule of law forbids it. Hummell v. Hummell, 241 N.C. 254, 85 S.E.2d 144; Wachovia Bank & Trust Co. v. Green, 238 N.C. 339, 78 S.E.2d 174.

When the testatrix said the property bequeathed 'shall go back to my estate' if the legatee 'shall never have any bodily heirs,' the expressed intent does not violate any rule of law. 'The rule is now well established that personal property, as well as real estate, is a proper subject of executory interest and limitation, provided the contingency operating to defeat the estate of the first taker is no more remote than the law allows.' ' (Rule against Perpetuities) Woodard v. Clark, 236 N.C. 190, 72 S.E.2d 433, 435; Thompson on Wills, 433, sec. 357; Zollicoffer v. Zollicoffer, 20 N.C. 574; Jones v. Spaight's Heirs, 4 N.C. 157.

'The rule has been applied in like manner where there was a gift generally to the first taker of (1) specific personal property, or (2) the entire estate of testator, or (3) the residue of the estate, with a limitation over to others in the event the original donee should die without issue or upon some other contingency.' [Citing cases.] 'When such future interest is created by will it is valid and vests in the ulterior taker an enforceable title either vested or contingent, depending on the condition or event upon the happening of which the right of possession is made to rest.' Woodard v. Clark, 236 N.C. 190, 72 S.E.2d 433, 436.

From the foregoing we conclude the provision in the will is valid and in the event D. Barton dies without bodily heirs, the personal property bequeathed to him must go to the ulterior legatees.

Proceeding to the second question: Does the adoption for life of Sylvia and Samuel Barton satisfy the limitation in the will by making them bodily heirs of D. Barton? By the laws of adoption, for the purposes of inheritance and distribution, they became the children of D. Barton. They are his children not by birth, that is by blood relationship, but by law. Adoption did not make them the bodily heirs of their adopting father. Bradford v. Johnson, 237 N.C. 572, 75 S.E.2d 632; Smyth v. McKissick, 222 N.C. 644, 24 S.E.2d 621; Grimes v. Grimes, 207 N.C. 778, 178 S.E. 573. Bradford v. Johnson was decided in April, 1953, since the 1947 amendment.

'And regardless of any provision that may be contained in an adoption law with respect to the parent and child relationship, or the right of the adopted child to take...