Headen v. Jackson

WiNBORNE, C.J.,

dissenting. I am unable to agree with the majority opinion. The single question presented for decision on this appeal is whether or not an adopted child comes within the provisions of the North Carolina anti-lapse statute, 31-42.1, so that a legacy of personal property to an adoptive parent who predeceases the testator will pass to the adopted child instead of lapsing.

G.S. 31-42.1 provides as follows: “Unless a contrary intent is indicated by the will, where a legacy of any interest in personal property not terminable at or before the death of the legatee is given to a legatee, who predeceases the testator, such legacy does not lapse but passes to such issue of the legatee as survive the testator in all cases *161where the legatee is issue of the testator or would have been a dis-tributee of the testator if the legatee had survived the testator and there had been no will.”

This section of the General Statutes of North Carolina is in contravention of the common law, and therefore must be strictly construed. Smith v. Smith, 58 N.C. 305; Bennett v. Cain, 248 N.C. 428, 103 S.E. 2d 510. Indeed, this Court in Farnell v. Dongan, 207 N.C. 611, 178 S.E. 77, said: “The statute is not ambiguous. The intention of the General Assembly in its enactment is expressed in language which leaves no room for judicial construction.”

Is the defendant appellant “issue of the legatee” within the meaning of the anti-lapse statute? This Court has held that the word “issue” does not include adopted children, but is limited to bodily issue. Bradford v. Johnson, 237 N.C. 572, 75 S.E. 2d 632. In that case Denny, J., speaking for the Court, said: “The natural and ordinary meaning of the word ‘issue’ is understood to include only a child or children born of the marriage of the ancestor or their descendants * * * .”

Therefore, this definition of “issue” being the natural and ordinary meaning of the word, it must be presumed that the General Assembly used the word in its natural and ordinary sense. Indeed, as shown by Wilson v. Anderson, 232 N.C. 212, 59 S.E. 2d 836; Bradford v. Johnson, supra; and Bennett v. Cain, 248 N.C. 428, 103 S.E. 2d 510, legislation affecting the rights of the adopted child has been enacted piecemeal by the legislature and so interpreted by this Court.

It must also be noted that when the General Assembly re-wrote the entire law of descent and distribution in 1959, it was careful to clarify those statutes concerning the adopted child. But no change was made in the language of the anti-lapse statute.

In fine, there is nothing to indicate that the General Assembly intended to change the natural and ordinary meaning of the word as set out in the Bradford case, supra.

The majority apparently bases its decision on the language of G.S. 48-23. However, in so doing, clear language of this Court on this matter is entirely overlooked. In Bradford v. Johnson, supra, it is said: “Regardless of any provisions that may be contained in an adoption law with respect to the parent and child relationship, or the right of an adopted child to take by, through, and from its adoptive parents, the adoption of a child under such law does not make such adopted child a lawfully begotten heir of the bodies of the adoptive parents.” See also Barton v. Campbell, 245 N.C. 395, 95 S.E. 2d 914.

Furthermore, the provision of G.S. 31-42.1 set out in the majority opinion as an “alternative provision” has no applicability. This clause, “or would have been a distributee of the estate of the testator if the *162legatee had survived the testator and there had been no will” merely defines who the legatee is with respect to the testator and under no circumstances upon the facts of the present case can be interpreted to define who is to take under the anti-lapse statute.

Therefore, the conclusion is that the word “issue” as used in G.S. 31-42.1 does not include an adopted child. “Whether this distinction should be abandoned in the law of this State, as having no sound basis under modern social and economic conditions, is a matter for the General Assembly, and not this Court, to determine.” Farnell v. Dongan, supra.

I vote to affirm.

PARKER, J., joins in dissent.