Rhyne v. Hoffman

• Decision Date: 30 June 1862
• Citation: 59 N.C. 335,6 Jones 335
• Court: North Carolina Supreme Court
• Parties: COTESWORTH H. RHYNE and another v. JONAS HOFFMAN Administrator and others.

6 Jones Eq. 335

59 N.C. 335

COTESWORTH H. RHYNE and another

v.JONAS HOFFMAN Administrator and others.

Supreme Court of North Carolina.

June Term, 1862.

A child is, in law, legitimate, if born within matrimony, though born a week or a day after marriage.

A child begotten while the parties were man and wife, but not born until six months after the husband had obtained a divorce from the bonds of matrimony on account of the wife's adultery, will be taken to be legitimate, unless it be proved, by irresistable evidence, that the husband was impotent or did not have sexual intercourse with his wife.

CAUSE removed from the Court of Equity of Gaston county.

About February, 1834, the defendants' intestate, Simon Rhyne, married a woman, by the name of Nancy Lay, and about six months after this marriage, she had a child, the present plaintiff, Cotesworth H. Rhyne. After the marriage, she went home with her husband and remained with him for about three months, when he drove her off and she returned to her former place of abode, about a mile distant from the home of her husband. The said Simon filed a petition for a divorce in the Superior Court of Lincoln, at the Spring Term, 1835. At Spring Term, 1836, of that court, he obtained a decree for a divorce from the bonds of matrimony, (on account of adultery) but in less than nine months after this decree, the said Nancy was delivered of another child, the plaintiff, Isaac T. Rhyne. The mother, during all this time, lived within a mile of the said Simon Rhyne, but under the influence and control of one Elisha Jones, to whom she had prostituted herself before her marriage with Mr. Rhyne. The evidence of Elisha Jones, testifying, to his opinion that the plaintiffs were his children, also the declarations of the mother, to the effect, that the plaintiffs were not the children of Simon Rhyne, were filed in the case, subject to exceptions. The cause was set down for hearing on the bill, answers, exhibits and proofs, and sent to this Court.

Fowle, for the plaintiff .

No counsel for the defendant appeared in this Court.

BATTLE, J.

The right of the plaintiffs to distributive shares in the estate of the intestate of the defendant, Jonas Hoffman, depends upon their legitimacy. The question in relation to the plaintiff, Cotesworth H. Rhyne, has been long settled. In 2 Com. Dig. 117, it is stated that a child is legitimate if born within matrimony, though born within a week or a day after the marriage. So, if...