WACHOVIA BANK & TRUST COMPANY v. McKee

HiggiNS, J. A ¡will takes effect and speaks as of the date of the testator’s death. Vandiford v. Vandiford, 241 N.C. 42, 84 S.E. 2d 278. Ernest Lyndon McKee executed his will on January 28, 1949. He died on Apaiil 9, 1961. Hiis will in unmiistakeable terms gave all hi.s property and' belongings to his wife, Ernestine N. McKee. On the day the will was executed the testator and has wife 'had one child, a daughter Ann, then three years and eight months of age. Pour day® after the execution of the will, Ernest Lyndon McKee, III, was born. Less than ■two years (thereafter, another ison, Arthur William McKee, was bom. The law in effect at the testator’s death provided: “A will shall not ■be revoked by the birth of a .child . . . after the execution of the will, but any afterborn . . . child shall be entitled to. such share in testator’s estate as it would be entitled to if the testator had died intestate, unless: (1) the testator made some provision .in the will for the 'child, whether adequate or not, or (2) it is apparent from the will itself that the testator intentionally did not make 'specific provision for such child.” G.S. 31-5.5; Johnson v. Johnson, 256 N.C. 485, 124 S.E. 2d 172. In simple terms, a child bom after the will is executed takes as in case of intestacy, unless (1) provision is made for it in the will, or (2) it appears from the will itself that the testator’s failure to make provision was intentional. Certain, it is, that the teistator in the will did not make provision for any afterborn child. It is equally certain the will itself does not disclose whether this failure was intentional :or unintentional. Aftenbom children, dm fact all children, are ignored in ithe will. Hence we cannot say the will discloses .an intent to exclude (afterborn 'children. We are limited to the will as the source from which intent .to exclude must appear. Such .intent does not .appear from the will. The law is so written. We must so apply it. It 'appears from the foregoing analysis that the judgment of the Superior Court must be reversad and the case -remanded for judgment that the two afterborn children take as in case of their father’s intestacy. *419 The members oí the Court enter with reluctance a judgment which excludes Ann from sharing in her father’s estate. The mother in all likelihood will see to it that Ann’s disadvantage is more apparent than real. Reversed.