Ray v. Ray

• Decision Date: 26 February 1941
• Docket Number: 89.
• Citation: 13 S.E.2d 224,219 N.C. 217
• Parties: RAY v. RAY.
• Court: North Carolina Supreme Court

13 S.E.2d 224

219 N.C. 217

RAY v. RAY.

No. 89.

Supreme Court of North Carolina

February 26, 1941

Civil action to compel the defendant, alleged putative father of plaintiff, to provide adequate support for his said child.

Plaintiff who was born June 7, 1934, is the son of Jennie Allen, who is the wife of Hicks Allen. The evidence for plaintiff tends to show that in 1932 Jennie Allen, at the solicitation of the defendant, left her husband and went to live with her sister (who was a tenant on defendant's farm), where she remained for about two years. During this period defendant cohabited with her regularly in the home of her sister; that during a part of the time of the separation the husband was confined in the insane asylum and at other times he lived near Lenoir, N. C., and at Sandy Mush in Madison County; and that Hicks Allen did not go into the community or about Jennie Allen while she was living on defendant's farm.

Plaintiff offered in evidence a contract entered into between Jennie Allen and the defendant dated July 31, 1934, in which the defendant agreed to pay Jennie Allen $75 in cash, one cow and 10 bushels of corn and $1 on the first day of each and every month until the plaintiff becomes 21 years of age, in settlement of his financial responsibility for the maintenance of plaintiff. On objection of defendant this contract was excluded.

Likewise plaintiff tendered the evidence of Jennie Allen for the purpose of showing the nonaccess of her husband during the time she was living on the farm of defendant. He also tendered other witnesses for the purpose of showing her declarations as to the paternity of plaintiff and as to the nonaccess of her husband. On objection this testimony was excluded and plaintiff excepted.

At the conclusion of the evidence for the plaintiff the court, on motion of the defendant, entered judgment as of nonsuit. Plaintiff excepted and appealed.

W. K McLean, of Asheville, for appellant.

J Scroop Styles, of Asheville, for defendant.

BARNHILL Justice.

Under the old English or common law rule a child born of a married woman was presumed legitimate unless the husband was shown to be impotent or not within the four seas, that is, he was conclusively presumed to be legitimate so long as there remained a possibility that the husband was the father. The presumption could not be rebutted if the husband was capable of procreation and was within the four seas during the period of gestation. State v. Pettaway, 10 N.C. 623; Woodward v. Blue, 107 N.C. 407, 12 S.E. 453, 10 L.R.A. 662, 22 Am.St.Rep. 897; State v. Liles, 134 N.C. 735, 47 S.E. 750; Ewell v. Ewell, 163 N.C. 233, 79 S.E. 509, Ann.Cas.1915B, 373; West v. Redmond, 171 N.C. 742, 88 S.E. 341; State v. Green, 210 N.C. 162, 185 S.E. 670. But this rather harsh rule has been tempered by the application of a degree of common sense, so that now access or nonaccess of the husband is a fact to be established by proper proof. The question of legitimacy or illegitimacy of the child of a married woman, under the prevailing rule, rests on proof as to the nonaccess of the husband and the evidence in respect thereto must be left to the jury for determination. If there was access in fact then now, as formerly, there is a conclusive presumption that the child was lawfully begotten in wedlock. "If a husband have access, and others at the same time are carrying on a criminal intimacy with his wife, a child born under such circumstances is legitimate in the eye of the law." Cope v. Cope, 5 Car. & P. 604.

This modification of the common law rule was first indicated in Pendrell v. Pendrell, Stra. 925, and the Banbury Peerage Case in the House of Lords, 1 Sim & Stuart, 153, and is now consistently applied. Woodward v. Blue, supra; State v. Pettaway, supra; State v. Liles, supra; Ewell v. Ewell, supra; West v. Redmond, supra; State v. McDowell, 101 N.C. 734, 7 S.E. 785; State v. Green, supra; Schouler Dom. Relations, § 225.

The wife is not a competent witness to prove the nonaccess of the husband, State v. Pettaway, supra; State v. Wilson, 32 N.C. 131; State v. Green, supra; State v. McDowell, supra; Ewell v. Ewell, supra; West v. Redmond, supra; nor may such be shown by evidence of declarations of the wife. Ewell v Ewell, supra; West v. Redmond, supra (citing many authorities). Her testimony and declarations are excluded not only...