# Thomas v. Thomas > Supreme Court of North Carolina · February 1, 1963 · 258 N.C. 590 URL: https://www.frixlaw.com/law-library/cases/9587326 ## Case - **Full name:** J. Benton Thomas, Crawford L. Thomas and Ina Thomas Lentz Paulston v. Harold Stanley Thomas - **Court:** Supreme Court of North Carolina - **Decided:** February 1, 1963 - **Citations:** 258 N.C. 590; 129 S.E.2d 239; 1963 N.C. LEXIS 451 - **Precedential status:** Published - **Opinion:** Dissent by Higgins - **Judges:** Denny, Higgins, Parker - **Cited by:** 8 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9587326 ## Opinion text Higgins, J., dissenting: The majority opinion correctly summarizes the facts as disclosed by the record. At the time James C. Thomas executed his will and at the time of his death —• both in 1926 — the testator had three sons and one daughter. To each of these children he devised lands upon substantially identical terms and conditions. In this controversy we are concerned only with the devise to William Marshall Thomas for life with remainder in fee, first to his children. After the life estate the remainder is provided for in the following words: “To the children of my said son living at the time of his death . . . and if there should be no such children . . . then to go in fee simple to the brothers and sister of my said son." At the time the will was executed, William Marshall Thomas was married to Agnes Thomas. They were childless. However, effective May 19, 1949, they adopted for life Harold Stanley Thomas. Agnes Thomas died in 1958 and William Marshall Thomas died in 1961, leaving the adopted son as the only child. The remainder given to the children was contingent for the reason that the ultimate takers of the fee could not be known until the son’s death. “When there is uncertainty as to the person or persons who are to take, the uncertainty to be resolved in •& particular way or according to conditions existing at a particular time in the future, the devise is contingent.” Parker v. Parker, 252 N.C. 399 , 113 S.E. 2d 899 . The remaindermen must be determined by calling the roll at the time fixed in the will. Does the adopted son, Harold Stanley Thomas, have *597 the right to answer as a surviving child of William Marshall Thomas? The answer, decides this case. The will, speaking as of 1926, nevertheless fixes 1961 as the time to determine who are children of William Marshall Thomas. In 1926 he was married but was without child, either bom or adopted. The will neither limits nor qualifies the word “children.” Therefore, must we not determine who are children according to the law in effect at the time the -testator appointed for the determination? The majority opinion says the testator did not mean adopted children. If the testator meant children by birth and not by adoption, by a few simple words, he could have so provided. His failure should not now be supplied by the Court. Effective July 1, 1955, “An adopted child shall have the same legal status, including all legal rights and obligations of any kind whatsoever as he would have had if he were born the legitimate child of the adoptive parents at the date of signing the final order of adoption. . .” The rights relate back to prior adoptions. Chapter 813, Session Laws, 1955; Headen v. Jackson, 255 N.C. 157 , 120 S.E. 2d 598 ; 33 N. C. Law Review. The argument that rights of adopted children involve only descent and distribution in case of intestacy is unsound. The law of adoption by specific terms extends to and includes all rights. No longer can the adopted child inherit from his actual parents, nor they from him. By the adoption order the court takes the child from one family, leaving behind his name and all rights, and places him in the family of the adoptive parents, giving him their name and all the rights of a child. Nature provides for children by birth. Realizing the loss when nature fails, the law authorizes the court, after very careful scrutiny, to supply the loss by its order of adoption. Without force in this case is the argument the testator did not know the law of adoption might be changed to give an adopted child full family status. Neither did he know to the contrary. At the date of the will there were no children. There was a possibility of a child by birth. Likewise there was a possibility of a child by adoption. The testator selected the date of his son’s death as the time for the remainder to go to a child or children. On that date the law said Harold Stanley Thomas was the son of William Marshall Thomas “for all purposes.” If so, he took the remainder. Of the cases cited in support of the majority view that a child adopted after the testator’s death is not included in the term “child,” only those from Indiana, Wisconsin and New York appear to have been controlled by statutes similar to ours. The New York statute contains a qualifying phrase. On the other side, the Supreme Court of Minnesota, In re Patrick’s Will, 259 Minn. 193 , 106 N.W. 2d 888 , had this to say: “In this State *598 adopted children stand in the same position 'as biological children in all respects, including their right to inherit by laws of intestacy or under appropriate testamentary provisions. By such legal policy the terms 'children’ and 'issue’ are presumed to include both biological and adopted offspring. . . . We have come to realize that it is not the biological act of begetting offspring — which is done even by animals— . . . but the emotional and spiritual experience of living together that creates a family.” See also 43 Michigan Law Review, 705; In re Stanford’s Estate, 49 Cal. 120 , 315 P. 2d 681 ; Dyer v. Lane, 202 Ark. 371 , 151 S.W. 2d 678 ; Meek v. Ames, 177 Kan. 365 , 280 P. 2d 957 . Undoubtedly there is lack of uniformity in the attitude of appellate courts towards adopted children. Some are inclined to take them by the hand; others by the seat of the pants. On occasion our own Court has been reluctant to give full effect to what appears to me to be the legislative intent in fixing the rights of adopted children. The amendments to the law following this Court’s decisions furnish proof. See oases cited in both opinions in Headen, supra. Also see 33 N.C. Law Review, there quoted. The reasons supporting the majority opinion in this case remind me of the defense a big, rough mountain boy offered when called to answer an indictment for assault resulting in serious damage. He said he really liked the boy and didn’t want to hurt him, but when he saw that new suit he had -a sudden urge to mess him up a little. A case apparently on all fours with the one before us is Edmands v. Tice (Ky.) 324 S.W. 2d 491 . The testator died in 1896 after devising lands -to his daughter for life with remainder to her children, if any. She adopted a child in 1928. The daughter died in 1954. The court gave the remainder to the adopted child, holding that the adoption statute in effect at the time of the expiration of the life estate was controlling ■— not the statute in effect at the testator’s death. In my view the will and the law applicable thereto give Harold Stanley Thomas the land in controversy. Consequently I am unable to join in a court opinion that takes it from him. PARKER, J., joins in dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9587326. Public record. Not legal advice.