Deal v. Sexton

• Decision Date: 12 March 1907
• Citation: Deal v. Sexton, 144 N.C. 157, 56 S.E. 691 (N.C. 1907)
• Parties: DEAL v. SEXTON.
• Court: North Carolina Supreme Court

56 S.E. 691

144 N.C. 157

DEAL v. SEXTON.

Supreme Court of North Carolina

March 12, 1907

Appeal from Superior Court, Martin County; Long, Judge.

Action by Francis Deal against Robert G. Sexton to recover a third interest in certain lands. From a judgment for plaintiff defendant appeals. Affirmed.

H. W Stubbs, for appellant.

Ward & Grimes, for appellee.

BROWN J.

It appears from the case agreed that F. B. Wilson died intestate in 1881, seised in fee of the land in controversy. At the time of his death his wife was enciente, and within four months thereafter, on December 22, 1881, the plaintiff Francis, was born. On October 22, 1881, two months before plaintiff was born, the widow, Deborah, and two daughters, Carrie L. and Maude L. Wilson, the only children then born, filed petition for partition and procured the lands of the intestate to be sold and the proceeds divided between them. W. E. Sexton became the purchaser, who conveyed to defendant for full value. The plaintiff was not made party to the proceedings by appointment of a guardian ad litem or otherwise, either before or after her birth, and has received no part of the proceeds of sale. She now seeks to recover her portion of the inheritance.

The question presented upon this appeal is important and perplexing, because of the fact that the defendant is a purchaser for value, and because of the great difficulty in purchasers at such judicial sales protecting themselves, having no knowledge of the existence of an unborn child in its mother's womb. If we hold, as we must, that the inheritance vested immediately in the plaintiff, while en ventre sa mere, upon the death of the father, the conclusion must follow that such inheritance ought not to be divested and the child's estate destroyed by judicial proceedings to which it was in no form or manner a party, and for which not even a guardian ad litem was appointed. It may be that our civil procedure is defective in not providing for such contingencies, but that is no reason why the vested estate of the unborn child in esse should be taken from it. The general rule in this country and the acknowledged rule of the English law is that posthumous children inherit in all cases in like manner as if they were born in the lifetime of the intestate and had survived him, and for all the beneficial purposes of heirship a child en ventre sa mere is considered absolutely born. This has been the recognized law of this state since Hill v. Moore, 5 N. C. 233, decided in 1809, down to Campbell v. Everhart, 139 N.C. 503, 52 S.E. 201, decided in 1905. It is also recognized generally by the text-writers and judicial decisions in other states. Kent's Com. (13th Ed.) vol. 4, p. 413; Washburn on Real Property (5th Ed.) vol. 3, page 16; Tiedeman on Real Property, § 673; 14 Cyc. 39, where the decisions are collected. The statute law of this state treats the unborn child in its mother's womb with the same consideration as if born. By the seventh canon of descent (Revisal of 1905, § 1556), a child born within 10 lunar months after the death of the ancestor inherits equally with the other children. By section 1582, an infant unborn, but in esse, is rendered capable of taking by deed or other writing any estate whatever in the same manner as if he were born. Campbell v. Everhart, supra. From most remote times the common law of England regarded such child as capable of inheriting direct from the ancestor as much so as if born. Doe v. Lancashire, 5 T. R. 49; Thelluson v. Woodford, 4 Vesey, Jun., 227; Harper v. Archer, 4 Smedes & M. (Miss.) 99, 43 Am. Dec. 474, where all the cases are collected. The old writ of de ventre inspiciendo was devised by the courts for the purpose of examining the widow, and was granted in a case where a widow, whose husband had lands in fee, marries again soon after his death and declares herself pregnant by her first husband, and under that pretext withholds the land from the next heir. Such writ commanded the sheriff or sergeant to summon a jury of 12 men and as many women, by whom the female is to be examined "tractari per ubera et ventrem." 1 Black. Com. 456; Viner's Ab. vol. 21, p. 546. Of course, no such unseemly proceeding would be tolerated in this age, but the General Assembly could easily protect the unborn child as well as the innocent purchaser by prohibiting the sale of land for partition until 12 months after the intestate's death.

The question as to the status of the purchaser was considered by the Supreme Court of Kentucky, in the case of Massie v Hiatt's Adm'r, 82 Ky. 314, in which it is held: (1) A child born within 10 months of the death of the intestate is entitled to...