Wachovia Bank & Trust Co. v. Green

• Decision Date: 17 March 1954
• Docket Number: No. 91,91
• Citation: 239 N.C. 612,80 S.E.2d 771
• Court: North Carolina Supreme Court
• Parties: WACHOVIA BANK & TRUST CO. et al. v. GREEN et al.

Page 771

80 S.E.2d 771

239 N.C. 612

WACHOVIA BANK & TRUST CO. et al. v. GREEN et al.

No. 91

Supreme Court of North Carolina.

March 17, 1954

Williams & Williams, Asheville, for appellant Virginia F. Green, guardian ad litem of Laura Adelaide Green, Mary Virginia Green and Michael Joseph Green, minors.

Hudgins & Adams, Greensboro, and Ward & Bennett, Asheville, for appellees Aileen Morel Johnston and John Devereaux Johnston, Jr.

John C. Cheesborough, Asheville, guardian ad litem for all persons not now in esse.

DENNY, Justice.

The appellant seriously contends that in order to ascertain whether the testator intended to include the adopted children of Ottis Green, Jr. and his wife, Virgina F. Green, as ultimate beneficiaries under paragraph 4, Item X of his will the trial court should have permitted her to introduce evidence bearing upon such intention.

The record discloses that the court below, upon a consideration of the allegations in the complaint and the answers thereto, including the will of Gay Green, and after hearing and considering the arguments of counsel for the respective parties, held that 'no issue or incidental questions of fact arise therefrom necessary to the determination of the controversy before us.'

The appellant contends, however, that it was not necessary for this Court to remand the case when it was heard on the former appeal, unless we intended to give her an opportunity to introduce evidence and to have the court find the facts and enter its conclusions of law thereon, citing G.S. § 7-11; Ormand Mining Co. v. Gambrill & Melville Mills Co., 181 N.C. 361, 107 S.E. 216; Knight v. Little, 217 N.C. 681, 9 S.E.2d 377; Suddreth v. City of 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 the court below. See Woodard v. Clark, 234 N.C. 215, 66 S.E.2d 888 in which Barnhill, J., now Chief Justice, discussed the reason for remanding such cases. Furthermore, the mere fact that occasionally this Court, in its discretion, considers the 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.

The 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 the facts in those cases are clearly distinguishable from those in the 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 he executed a will under the terms of which the remainder of his estate was put in trust for the benefit of the same beneficiaries named in the trust indenture. The 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 his daughter-in-law, but in no event earlier than 1944. The estate was then to be distributed to the children of his 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 he did the children born to his 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 [222 N.C. 644, 24 S.E.2d 628]: '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.' Cf. 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 stripes.

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 F. 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 F. 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 F. Wyatt is the life beneficiary.

The 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; ...