#### COTESWORTH H. RHYNE *and another against*JONAS HOFFMAN *Administrator and others.*

A child is, in law, legitimate, if bom 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 G-aston county.

About February, 1834, the defendants’ intestate, Simon Bhyne, married a woman, by the name of Nancy Lay, and about six months after this marriage, she had á child, the present plaintiff, Ootesworth 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 Simou filed a petition for a divorce in the Superior Court of Lincoln, at the Spring Term, 1835. At Spring Term, 1836, of that court, lie 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 *336the plaintiff, Cotesworth IT. Rhyne, has been long settled. In 2 Com. Dig. 117, it is stated that a child is legitimate if borü within 'matrimony, *though*born within a week or a day after the marriage. So, if the woman be big with child by A, and marry B, and then the child is born, it is the legitimate child of B; 1 Roll’s Abr. 358 ; 2 Bac. Abr. 84. It is admitted in the pleadings, that this plaintiff was born, within five or six months after the marriage of his mother with the intestate, which brings him within the rule established by these authorities.

The claim of the other plaintiff stands upon a principle somewhat different. He was begotten while the parties were man and wife, but was not born until six months after the husband had obtained a divorce *a vinculo maf/rimonii*on account of adultery. During the time, when the child was begotten,'the husband and wife lived separately, but in the same neighborhood, near enough for the husband to visit her, and it is proved that, occasionally, he did go to the house where she was staying. There was, then, an opportunity for sexual intercourse between the parties, and from that the law presumes that, in fact, there was sexual intercourse between them. This plaintiff must, therefore, be taken to be legitimate, unless it be proven, by irresistible evidence, that the husband was impotent or did not have any sexual intercourse with his wife ; but the former is not pretended, and the latter is a fact, which neither the wife, nor the declarations of the wife, is admissible to prove; *Rex*v. *luffe,*8 East, 193.— Here, independent of the declarations of the wife, which must be rejected as incompetent, there is no testimony sufficient to rebut the presumption of access.

Such being the case, the proof that the plaintiff’s mother" lived in adultery with a man, who testified that he was the father of her children, makes no difference. As was said in the case of *Morris*v. *Davies, 14*Eng. C. L. Rep. 275, “it matters not that the general camp, pioneers and all, had tasted her sweet body, because the law fixes the child to be the child of the husband.”

It must be declared that the plaintiffs are the legitimate children of Simon Rhyne, deceased, and as such, are entitled to distributive shares of his estate.

Pee Cukiam, Decree accordingly.