Opinion
No. 701A85
Filed 3 June 1986
Descent and Distribution 1.2; Adoption 5 — adopted children — lineal descendants of second marriage Two natural children of a testatrix, born of a previous marriage and adopted with the testatrix's consent by her second spouse, were considered lineal descendants of the second marriage for the purpose of determining the second spouse's distributive share upon his dissent from the testatrix's will pursuant to N.C.G.S. 30-3(b). The failure of the biological parent to join in her second spouse's petition to adopt her children did not prevent the children from becoming lineal descendants of the second marriage because such a joinder is rendered unnecessary by carefully integrated statutory provisions; a new bloodline was created by law upon entry of the final order of adoption and the children became the lineal descendants of the biological parent and the adopted parent. There is no indication of legislative intent to create a special exception to the well-settled law and public policy that adopted children be afforded the same legal status as natural children born of that marriage, and the apparent intent in enacting N.C.G.S. 30-3(b), to protect a testator's children by a former spouse against a fortune-hunting successive spouse, does not exist here because the second spouse caused himself to become legally bound to provide for the children. N.C.G.S. 48-4, N.C.G.S. 29-17(e), N.C.G.S. 48-7(d), N.C.G.S. 48-11(a), N.C.G.S. 29-2(4).
FROM a decision of a divided panel of the Court of Appeals, 77 N.C. App. 302, 335 S.E.2d 39 (1985), respondents appeal as a matter of right pursuant to N.C.G.S. 7A-30. Heard in the Supreme Court 13 March 1986.
W. Y. Manson and Samuel Roberti for petitioner-appellee.
Nye Mitchell, by R. Roy Mitchell, Jr., and Edmund D. Milam, Jr., for respondent-appellants.
Justice EXUM dissenting.
Justices FRYE and BILLINGS join in the dissenting opinion.
We are presented on this appeal with a single question of first impression: whether two natural children of a testatrix, born of a previous marriage and adopted with her consent by her second spouse, are considered her lineal descendants by the second marriage for the purpose of determining the second spouse's distributive share upon his dissent from testatrix's will pursuant to N.C.G.S. 30-3(b). The majority of the panel below answered this question in the affirmative, and we affirm.
Virginia Duncan Edwards (Virginia) died testate on 14 October 1983. She was survived by her husband, Daniel K. Edwards, and five children, all of whom had been born to her during her previous marriage to Harmon Duncan, deceased. From the date of their marriage in 1968 until Virginia's death in 1983, no natural children were born to Virginia and Daniel. However, in November 1970, Daniel adopted the two minor children of Virginia born to her during her marriage to Mr. Duncan. Daniel did not adopt his wife's three adult children from her previous marriage.
Virginia's will was admitted to probate, in common form, on 18 October 1983. Her will made no provision for her husband, Daniel. One week after Virginia's death, Daniel, the surviving spouse, filed his dissent from her will. The parties do not contest Daniel's right to dissent nor his timely notice of dissent. Only the matter of his distributive share is at issue here.
N.C.G.S. 30-3, "Effect of dissent," provides in pertinent part:
(b) Whenever the surviving spouse is a second or successive spouse, he or she shall take only one half of the amount provided by the Intestate Succession Act for the surviving spouse if the testator has surviving him lineal descendants by a former marriage but there are no lineal descendants surviving him by the second or successive marriage.
N.C.G.S. 30-3(b) (1984).
If the two adopted children are considered to be lineal descendants of Virginia by the second marriage to Daniel, Daniel's distributive share of the personal property would be the same as that provided by the Intestate Succession Act (the first $15,000 plus one-third of the balance). N.C.G.S. 29-14(b)(2), 30-3(a) (1984). If, instead, the adopted children are considered to be Virginia's lineal descendants by her first marriage, then Daniel's distributive share would be only one-half of the amount provided by the Intestate Succession Act (the first $7,500 plus one-sixth of the balance of the personal property). N.C.G.S. 29-14(b)(2), 30-3(b).
On 30 April 1984, Daniel, petitioner, commenced this action by petition and motion to the Clerk of Superior Court, Durham County, to establish and define the proper distribution of Virginia's estate as a result of a disagreement that had arisen between himself and respondents, the co-executors of the estate. James Leo Carr, Durham County Clerk of Superior Court, entered judgment on 10 August 1984, finding, inter alia:
12. That G.S. 30-3(b) does not apply to reduce the intestate share of Daniel K. Edwards because . . . [the two minor children) were lineal descendants by the successive marriage between Virginia D. Edwards and Daniel K. Edwards, and they survived and still survive their mother, Virginia D. Edwards, the testatrix, being lineal descendants because of their adoption by Daniel K. Edwards — said adoption being consented to by Virginia D. Edwards;
and ordering:
IT IS NOW, THEREFORE, ORDERED, ADJUDGED AND DECREED that under the provisions of G.S. 30-3(a) and (b) Daniel K. Edwards, a successive spouse, by reason of his dissent is entitled to take the full intestate share of the estate of Virginia D. Edwards — that is, a one-third undivided interest in the real property left by the deceased and the first $15,000 plus one-third of the balance of the personal property left by the deceased; this being the share to which he is entitled and which vested in him by reason of the dissent and by reason of the fact that . . . [the two minor children] survived their mother, the testatrix, and are lineal descendants to Daniel K. Edwards and Virginia D. Edwards.
Respondents appealed entry of this judgment to the Superior Court, Durham County. Judge Robert L. Farmer conducted a hearing in the matter and entered his judgment on 5 November 1984 in which he adopted the findings of the clerk of superior court, made additional findings, and "confirmed, approved and adopted" the 10 August 1984 judgment of the clerk. Respondents gave notice of appeal to the Court of Appeals. The majority of the panel below in turn affirmed the order of the superior court; Judge Johnson filed a dissenting opinion. We affirm the decision of the majority of the panel below.
N.C.G.S. 30-3(b) provides that a second spouse who dissents from the will of his spouse, the testatrix, will take only one-half of his intestate share if "the testat[rix] has surviving [her] lineal descendants by a former marriage but there are no lineal descendants surviving [her] by the second . . . marriage." The Court construed this provision in Vinson v. Chappell, 275 N.C. 234, 166 S.E.2d 686 (1969), in which former Chief Justice Bobbitt wrote:
G.S. 30-3(b) applies only when these facts concur: (1) A married person, husband or wife, dies testate, survived by his (her) spouse. (2) The surviving spouse, being entitled under G.S. 30-1 to do so, dissents. (3) The surviving spouse is a "second or successive spouse." (4) No lineal descendants "by the second or successive marriage" survive the testator (testatrix). (5) The testator (testatrix) is survived by lineal descendants by his (her) former marriage.
Id. at 238, 166 S.E.2d at 689-90 (emphasis omitted).
In the instant case (enumerating as in Vinson), the parties do not dispute that: (1) Virginia died testate, survived by her spouse, Daniel; (2) Daniel, being entitled to do so under N.C.G.S. 30-1, filed a timely dissent; (3) Daniel is Virginia's second spouse; and (5) Virginia is survived by lineal descendants by her former marriage (at least the three adult children not adopted by Daniel). The parties are in sharp disagreement as to whether element (4) exists in this case.
Daniel contends that the two minor children born of Virginia's former marriage became her lineal descendants by her marriage to him by virtue of the final order of adoption entered in 1970. Respondents argue that, although the final order of adoption changed Daniel's relationship with his wife's minor children from her former marriage, the adoption, to which Virginia "consented" but in which she did not "join," did not alter her relationship vis-a-vis her natural children who are, therefore, her lineal descendants by her first marriage. Respondents contend that N.C.G.S. 30-3(b) focuses on whether the testatrix has lineal descendants surviving her by the second marriage, and not on whether the surviving spouse has lineal descendants surviving him by that marriage.
Respondents argue that because Virginia did not join in Daniel's petition to adopt the two minor children in 1970, the adoption was ineffective to alter the children's status as lineal descendants of her first marriage. As to Virginia, respondents argue, the minor children born during her marriage to Mr. Duncan have at all times remained among those lineal descendants described by element (5) of the Vinson test. As such, respondents contend, these children cannot also be lineal descendants of Virginia by her marriage to Daniel. Therefore, say respondents, there are no lineal descendants by her marriage to Daniel, thus satisfying the fourth Vinson element.
In support of this argument, respondents refer to N.C.G.S. 48-7(d), which provides:
When a stepparent petitions to adopt a stepchild, consent to the adoption must be given by the spouse of the petitioner, and this adoption shall not affect the relationship of parent and child between such spouse and the child.
N.C.G.S. 48-7(d) (1984). Respondents construe this provision to mean that when the biological parent gives the statutorily required written consent to the adoption by her spouse of her children from a former marriage, the children remain "lineal descendants" of the biological parent by her former marriage. Respondents believe that only if the biological parent "joins" in her second spouse's petition to adopt her children could the status of the children as "lineal descendants" of the second marriage possibly arise by her marriage to the adoptive parent/spouse. This reasoning is flawed in several respects.
First, as Daniel points out, at the time that the adoption took place in 1970, with the consent of the biological mother, Virginia, there was no- other recognized proceeding whereby her husband, Daniel, could adopt her natural children born of her previous marriage to Mr. Duncan. N.C.G.S. 48-4, entitled, "Who may adopt children," provides in pertinent part:
(a) Any person over 18 years of age may petition in a special proceeding in the superior court to adopt a minor child and may also petition for a change of the name of such child. If the petitioner has a husband or wife living, competent to join in the petition, such spouse shall join in the petition.
(b) Provided, however, that if the spouse of the petitioner is a biological parent of the child to be adopted, such spouse need not join in the petition but need only to give consent as provided in G.S. 48-7(d).
N.C.G.S. 48-4(a), (b) (1984) (emphasis added).
The use of the word "however" in subsection (b) indicates that the petitioner's spouse referred to in (a) who "shall join in the petition" is not the biological parent. This is because subsection (b) makes a specific provision for cases in which the petitioner's spouse is the biological parent of the child to be adopted. The ratified bill, later codified as N.C.G.S. 48-4, as published in the 1949 Session Laws, indicates in the margin next to the text of subsection (b) that it is an "Exception," obviously to the immediately preceding provision, subsection (a). 1949 N.C. Sess. Laws ch. 300. Moreover, it has been suggested that the reason for requiring the joinder of the spouse of the petitioner is that "a child should not be brought into a home where it is unwanted by the husband or wife" of the petitioner. A Survey of Statutory Changes in North Carolina in 1947, 25 N.C. L. Rev. 376, 409 (1947). Such a reason clearly will not exist when the spouse of a petitioner is the child's biological parent who, by law, must consent to the adoption. N.C.G.S. 48-7(a), (d) (1984). See also Fairley, Inheritance Rights Consequent to Adoptions, 29 N.C. L. Rev. 227, 237 (1951) ("[I]n the case of a stepparent . . . joinder of the natural parent is obviously unnecessary.").
Moreover, respondents have failed to point out a statutory provision in effect in 1970 which provided for the joinder of a biological parent in her spouse's petition to adopt the children of the parent's former marriage, nor have respondents offered a plausible reason for the parent's doing so when, as here, the children to be adopted were born in wedlock. Indeed, such joinder is also rendered unnecessary by other carefully integrated statutory provisions.
The general rules regarding the relationship between adopted children and their biological parents are found in Chapters 29 (Intestate Succession) and 48 (Adoptions). N.C.G.S. 29-17(b) provides, "An adopted child is not entitled by succession to any property, by, through, or from his natural parents or their heirs except as provided in subsection (e) of this section." N.C.G.S. 29-17(d) provides, "The natural parents and the heirs of the natural parents are not entitled by succession to any property, by, through or from an adopted child, except as provided in subsection (e) of this section." Thus, Chapter 29 provides that upon adoption, children are legally severed from their natural parents for all purposes of intestate succession. The exception referred to is found at N.C.G.S. 29-17(e), which provides, "If a natural parent has previously married, is married to, or shall marry an adoptive parent, the adopted child is considered the child of such natural parent for all purposes of intestate succession." The purpose, therefore, of subsection (e) is to make it clear that, in a situation such as the one at bar the relationship of parent and child is not severed when the child is adopted by the spouse of the biological parent.
Likewise, in Chapter 48, N.C.G.S. 48-23(2) clearly restates the principle that adopted children are legally severed from their biological parents, and vice versa: "The biological parents of the person adopted, if living, shall, from and after the entry of the final order of adoption, be relieved of all legal duties and obligations due from them to the person adopted, and shall be divested of all rights with respect to such person." Again, however, special provision is made for adopted children whose biological parent is married to the adoptive parent. N.C.G.S. 48-7(d) provides: "When a stepparent petitions to adopt a stepchild, consent to the adoption must be given by the spouse of the petitioner, and this adoption shall not affect the relationship of parent and child between such spouse and the child."
Therefore, it becomes clear that N.C.G.S. 29-17(e) and 48-7(d) were enacted, not, as respondents argue, to retain adopted children's status as "lineal descendants" by the former marriage, but instead to provide that the parent-child relationship between adopted children and their biological parent is not severed by the parent's spouse's adoption of her children from a former marriage. Since the relationship remains intact in this limited situation, it is not necessary for such a biological parent to become a co-petitioner in her husband's adoption of her legitimate children of a former marriage. This biological parent, however, must consent to the adoption, as must any biological parent who does not come within the ambit of N.C.G.S. 48-6, "When consent of parents is not necessary."
Finally, N.C.G.S. 48-11(a) provides in part that "[w]hen the consent of any person . . . is required under the provisions of this Chapter, the filing of such consent with the petition shall be sufficient to make the consenting person . . . a party of record to the proceeding . . . ." Thus, the apparent basis for Judge Johnson's dissent below ("testatrix was not a party to her dissenting spouse's adoption . . . ." In re Edwards, 77 N.C. App. 302, 308, 335 S.E.2d 39, 44 (Johnson, J., dissenting) (emphasis added) ) is without support in law.
Therefore, we hold that Virginia's failure to "join" in her husband's petition for the adoption of her two minor children in no way affects her relationship with the children and is immaterial to a determination of her husband's distributive share under N.C.G.S. 30-3(d). Virginia did as much as she was directed to do by statute in order to effectuate the couple's apparent desire that Virginia, Daniel, and the two minor children would be a family, legally as well as emotionally.
Respondents further contend that the decisions of the clerk of superior court, the superior court, and the Court of Appeals erroneously focused on Daniel's relationship with his adopted children rather than on Virginia's relationship with her natural children. We believe that the focus of N.C.G.S. 30-3(b) in the instant case is on the "lineal descendants" and not on either the testatrix or her second spouse. The question here is: From what marriage (or bloodline) will these children of the testatrix be considered to have "descended"? The answer to this question would have been simple had Daniel not adopted the two minor children: The children would unquestionably have been considered lineal descendants of Virginia's first marriage — Vinson element (5) descendants. But because Daniel did adopt these children, the analysis is somewhat more complex.
When Virginia consented to her husband's adoption of her two minor children and the final order of adoption was filed, the children were removed from the "bloodline" which was created by the union of their natural mother and father. See Crumpton v. Mitchell, 303 N.C. 657, 665, 281 S.E.2d 1, 6 (1981). No longer could these children, adopted out of the Duncan family, inherit through their natural father. Upon entry of the final order of adoption, a new bloodline was created by law as surely as it would have been created by nature had Virginia given birth to natural children of her union with her husband, Daniel. New birth certificates were required by statute, N.C.G.S. 48-29, to be issued, showing Daniel as the father and Virginia as the mother of the two children. A new family came into being on the date of adoption. Daniel and Virginia became the ancestors of these children who became lineal descendants of the union of Daniel and Virginia. Adoption effects a complete substitution of families and makes the child legally a stranger to the bloodline of his natural parents. Crumpton v. Mitchell, 303 N.C. 657, 665, 281 S.E.2d 1, 6. See also Pittman v. Pittman, 73 N.C. App. 584, 586, 327 S.E.2d 8, 10 (1985); McCall, North Carolina's New Intestate Succession Act — Its History and Philosophy, 39 N.C. L. Rev. 1, 14 (1960).
Respondents further argue that the term "lineal descendants" does not expressly include adopted children. The "lineal descendants of a person means all children of such person and successive generations of children of such children." N.C.G.S. 29-2(4) (1984). There is no question but that these children are Virginia's children and therefore are her "lineal descendants." They became lineal descendants of Daniel upon adoption because they became in law his children. If Daniel had predeceased Virginia and Virginia had duly dissented from his will, there is no doubt but that Virginia would have received her full intestate share. Daniel, like Virginia, had lineal descendants surviving him by his first marriage (his natural children not adopted by Virginia). Yet, he would have been survived also by lineal descendants by his second marriage (the two minor children he adopted with his wife's consent). These same two children who are lineal descendants by the marriage of Virginia and Daniel cannot also be lineal descendants by the marriage of Virginia and Mr. Duncan by the fortuitous event of Virginia's predeceasing Daniel rather than vice versa. Respondents concede that the children must be lineal descendants of one marriage or the other.
The oft-quoted passage below again bears repeating:
Here is a simple and clear rule which eliminates all doubt as to the standing and rights of an adopted child. For all legal purposes he is in the same position as if he had been born to his adoptive parents at the time of the adoption. There is no need for any learned and complicated interpretations. Whatever the problem is concerning an adopted child, his standing and his legal rights can be measured by this clear test: "What would his standing and his rights be if he had been born to his adoptive parents at the time of the adoption?" If lawyers and courts will look to this plain language of the statute, and avoid making exceptions not made in this statutory statement, persons adopting children in North Carolina can legally realize what they have hoped for, namely that the child they adopt will become their child, theirs fully, just as if he had been born to them, and without any exceptions and qualifications imposed by law to thwart their purpose.
A Survey of Statutory Changes in North Carolina in 1955, 33 N.C. L. Rev. 513, 522 (1955) (footnote omitted).
Both parties recognize the import of the role of public policy and a determination of legislative intent in reaching a decision in this case. We find no indication of legislative intent to carve out a special exception to the well-settled law and public policy of this state that adopted children of a marriage be afforded the same legal status as natural children born of that marriage. Moreover, we would question the propriety of respondents' position that the legislature intended to treat couples who choose to have the stepparent adopt the stepchildren differently from those couples who decide to parent their own natural children.
In considering the constitutionality of N.C.G.S. 30-3(b), this Court noted that "[t]he reasons that impelled the inclusion of this unusual provision in the 1959 Act are unclear." Vinson v. Chappell, 275 N.C. 234, 239, 166 S.E.2d 686, 690. The Court noted, however, that "[u]ndoubtedly, by reason of G.S. 30-3(b), a testator (testatrix) who has a child or lineal descendant by a former marriage has greater freedom of testation as against a childless `second or successive spouse.'" Id. at 240, 166 S.E.2d at 691 (emphasis in original). The Court went on to say that "the legislative intent was to enable a person who has a child or lineal descendant by a former marriage to make greater provision for such child or lineal descendant." Id. (emphasis in original). The couple in Vinson had no children of their own, natural or adopted, but the husband was survived by two daughters from his former marriage. The fact that the Vinsons had no children of their own, coupled with the provision of 30-3(b), operated to give Mr. Vinson greater testamentary freedom to make provisions for his children from his former marriage without the threat of his successive wife's dissenting from his will and effectively depleting his estate intended to provide comfort and support for his children from the previous marriage — the only children he ever had.
The greater freedom of testamentary disposition, recognized in Vinson as intended by 30-3(b), is curtailed when the testator remarries and "lineal descendants" are produced by that union. In the instant case, Virginia's voluntary choice in consenting to the adoption by her husband of her two minor children was tantamount to the couple's producing their own offspring. Had Virginia intended to reduce Daniel's distributive share upon his inevitable dissent from her will, she could have withheld her consent to the adoption petition. "`In making a will a husband (or wife) is presumed to have knowledge of and to have taken into consideration the statutory right of his widow to dissent from the will. G.S. 30-1.'" Vinson v. Chappell, 275 N.C. 234, 238, 166 S.E.2d 686, 690 (quoting Keesler v. Bank, 256 N.C. 12, 18, 122 S.E.2d 807, 812 (1961)).
A further explanation for the legislative intent in enacting N.C.G.S. 30-3(b) was offered in Phillips v. Phillips, 296 N.C. 590, 252 S.E.2d 761 (1979), in which then Chief Justice Sharp wrote, "Apparently this statute was passed to protect a testator's children by a former spouse against a `fortune-hunting' second or successive spouse." Id. at 606, 252 S.E.2d at 771. Consistent with this Court's observations in Vinson and Phillips, we believe that N.C.G.S. 30-3(b) was enacted for the protection of a testator's children by a former spouse on the assumption that a second or successive spouse would not feel as compelled to provide for the stepchildren upon testator's death as would the testator in his will. Indeed, the surviving spouse could not be compelled by law to provide for children who are not his own from funds received by that spouse upon dissent from the testator's will. The situation upon which this assumption, correct in many cases, is based does not exist in the instant case. The surviving second spouse, Daniel, not only felt compelled to provide for his wife's minor children of a previous marriage, he caused himself to become legally bound to do so by adopting the children with their mother's consent. Virginia's concern for the well-being of her young children and her desire that they be provided for and raised by a father — her husband — was undoubtedly a central factor in her decision to consent to the adoption.
In Crumpton v. Mitchell, 303 N.C. 657, 281 S.E.2d 1, this Court held that children who are "adopted out of" a family do not take as "issue" of their biological grandmother in the absence of a contrary intent plainly appearing by the terms of a deed. We find the following passage from Crumpton particularly appropriate here. Justice Exum wrote:
Given the legislative intent that the legal effect of a final order of adoption shall be substitution of the adoptive [family] in place of the natural family and severance of legal ties with the child's natural family, the implication is clear that the legislature intended that children adopted out of a family would, for all legal purposes, no longer be a part of that family. We are convinced the severance of legal ties with the child's natural family was not intended to be partial. It is most unlikely that in enacting G.S. 48-23 the legislature intended the child would for some purposes remain legally in its natural bloodline. Such a construction violates the spirit of the act and thwarts that which the act seeks to accomplish.
Instead, we view G.S. 48-23 to mean that upon a final order of adoption the severance of legal ties with the child's natural family is total. The child acquires full status as a member of his adoptive family and in so doing is for all legal purposes removed from his natural bloodline.
Id. at 664-65, 281 S.E.2d at 6 (emphasis added).
We therefore hold that the natural children of a testatrix, born of a previous marriage and duly adopted by her second husband, are considered to be her lineal descendants by the second marriage for purposes of determining the second spouse's distributive share upon his dissent from the testatrix's will pursuant to N.C.G.S. 30-3(b). The decision of the Court of Appeals is affirmed.
Affirmed.