Byerly v. Tolbert
1959 N.C. LEXIS 439, 108 S.E.2d 29, 250 N.C. 27 (1959)
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Rule of Law:
A child born more than ten lunar months after the death of the mother's husband is not conclusively barred from inheriting the deceased's personal property; rather, a rebuttable presumption arises that the child was not 'en ventre sa mere' at the time of death, which the child may overcome with evidence of paternity.
Facts:
- Ivison Jerome Tolbert was married and living with his wife.
- Tolbert died intestate, meaning without a will.
- Tolbert's widow gave birth to a child, Sandra Louise Tolbert.
- The child was born 322 days after Tolbert's death, which is more than ten lunar months.
Procedural Posture:
- A legal proceeding was initiated in a lower court to determine the heirs for the distribution of Ivison Jerome Tolbert's personal estate.
- Sandra Louise Tolbert, the appellant, sought to be included as a child and heir of the deceased.
- The trial court refused to submit the issue of paternity to the jury, effectively ruling as a matter of law that the child could not inherit because she was born more than ten lunar months after Tolbert's death.
- Sandra Louise Tolbert (appellant) appealed the trial court's ruling to the Supreme Court of North Carolina.
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Issue:
Does the fact that a child was born more than ten lunar months after her mother's husband died conclusively bar the child, as a matter of law, from sharing in the distribution of the husband's personal estate?
Opinions:
Majority - Bobbitt, J.
No. The fact that a child was born more than ten lunar months after her mother's husband's death does not conclusively bar her from inheriting from his personal estate; it creates a rebuttable presumption that the intestate was not the father. The North Carolina statute establishing a ten-lunar-month limit (G.S. 29-1, Rule 7) applies specifically to the descent of real property (inheritances) and was intended to provide finality for titles, particularly concerning collateral heirs. It does not govern the distribution of personal property to a direct child of the intestate. For personal property, the common law principle that a child 'en ventre sa mere' (in the womb) at the time of the intestate's death can inherit still applies. While a birth occurring more than ten lunar months after death creates a presumption against the child, this presumption can be rebutted by evidence sufficient to prove paternity, with the burden of proof resting on the child. Therefore, the child is entitled to have the issue of paternity submitted to a jury.
Analysis:
This decision clarifies the distinction between inheritance rules for real and personal property concerning posthumous children. It rejects a rigid, conclusive statutory deadline for establishing parentage in intestacy cases involving personal estates. Instead, the court establishes a modern, evidence-based approach by creating a rebuttable presumption that acknowledges scientific and medical realities regarding variable gestation periods. This ruling protects the inheritance rights of legitimate, though long-gestated, children by allowing them their day in court to prove paternity.
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