#### FREDERICK JOHNSON, JUN., *against*DAVID CHAPMAN, EX’R. OF FREDERICK JOHNSON, SEN., AND OTHERS.

Where tliere is opportunity for sexual intercourse between a man and his wife, it is presumed it did take place unless the contrary be shown, provided there be issue; and if the intercourse might have occurred at a time when by the course of nature, the ***husband might have been the father, the child is deemed his.

The declarations of a husband to his wife are not competent to prove one of her children illegitimate.

The 16th section of the Act of 1S36, ch. 122, is not affected by the 18th section of the Act of 1S36, ch. 65; nor does any presumption of the abandonment of any claim under it arise within ten years after the suit might have been brought.

In passing upon the question whether an assignment by a party is a bar to his claims, a Court of Equity will look at the adequacy of the consideration, and the other circumstances of the alleged sale.

*214Fuedemck Johnson, Sen., died in the year 1819, leaving a will, which was duly admitted to probate in the County Court of Craven county, and David Chapman one of the defendants, is surviving executor thereof. The testator, by his said will, gave in different proportions the whole of his estate, real and personal, to his wife Penelope and his two 'daughters, Sally and Mary, his only children. At the time of his death, his said wife was *efici-ente,*and a few months thereafter she gave birth to the plaintiff, Frederick Johnson, Jun. The widow dissented from her said husband’s will, and soon afterwards intermarried with Stephen Chapman, who died intestate, and the defendant Jacob Schenk administered on his estate. Mary intermarried with the defendant Frederick Bryan, and Sarah with Hilen Godley, who died intestate, and Henry Harding, another of the defendants, administered on his estate.

The plaintiff in his bill alleges that the said tesfator died seised and possessed of a large estate, real and personal, including a number of slaves which have greatly increased, of the value, number and names whereof he is ignorant, and also a valuable tract of land. That he has been informed that the defendants, Frederick Bryan and wife and Sally Godley, have sold their interest and estate in said land to the defendant Church Chapman ; and that as to the personal estate, the defendants, or some of them, have the same in their possession. And the plaintiff alleges that as a child, born after the death of his father, he is by the Act of Assembly entitled to a distributive share of the personal estate, and that he is entitled to one-third of the real estate. He further states, that he has grown up in extreme poverty — in ignorance of his rights — that he has been unadvised and unbefriended in regard thereto, and especially, that the defendant David Chapman, executor of his father’s will, though he was well advised thereof, paid over the shares of the said Penelope, Mary and Sally ; whereas he knew it was his duty, under the Act of Assembly, to have called upon the legatees and the plaintiff by bill or petition to litigate their respective claims, and ascertain the same, and apportion the shares which the legatees should severally contribute— which the said David Chapman failed to do. The prayer is for a discovery and account of the personal estate, and for a division *215of the real estate or conveyance of one-third thereof to the plaintiff.

The defendants, in their answer, deny that the plaintiff is the child of Frederick Johnson, Sen., and aver that he is the child of Stephen Chapman, with whom his mother lived in notorious adultery, and whom she married shortly after the testator’s death. That this fact was well known to the testator, and by him and the plaintiff’s mother openly admitted. And David Chapman, the executor, avers that this fact *“*furnished him with ample reason for omitting to make or have made any claim on behalf of the plaintiff;” and the defendants deny that the plaintiff has any right or claim whatever to the estate of the testator.

The defendants admit that the testator owned a considerable estate, and they set out the division of the negroes between the widow (who dissented from the will) and the legatees, the names of the negroes, and their increase.

Bryan answers that he has been in the exclusive possession of the slaves he acquired by his marriage with Mary in 183 — , a period of more than three years before the bringing of the bill; and he relies on the Statute of Limitations as a defence against the plaintiff’s claim.

The defendants also admit the sale of the land mentioned in the bill to Church Chapman, who answers and denies that the plaintiff is tenant in common with him, inasmuch as he purchased the share of Godley and wife'in 1835, and Bryan and wife in 1837, whose deeds are exhibited, and that be had no notice of the plaintiff’s title or claim of title to the land, before the execution and delivery of said deeds ; and he Was, therefore, a purchaser for a valuable consideration, without notice. And this defendant further states that, he has had the actual and exclusive possession of the said land from the time of his said purchase to the filing of plaintiff’s bill, and holding and claiming the same adversely to all the world ; and he relies on the Statute of Limitations (ch. 65, Rev. Stat.) as if specially pleaded. He avers that the plaintiff was born in April or May, 1819 — that his cduse of action, if he had any, accrued more than seven years before the bringing of the bill — and that he was for more than three years before the bringing thereof, under none of the disabilities mentioned in said Act.

*216The defendants also deny that the plaintiff has been ignorant of his alleged rights, or that-lie has been unable to prosecute the same, if he had chosen ; and they aver that up to a short time before the filing of his bill, he openly admitted that he had no just claim to any part of the estate of Frederick Johnson, Sen., and that the said Stephen Chapman objected to any claim being made by David Chapman, the executor, on the plaintiff’s account — insisting that he, Stephen, was his father, and would provide for him. And further, that the plaintiff;, so far from making any claim to a share of said estate, did, in 1842, publicly offer his interest therein for the sum of thirty dollars ; and in December of that year, did actually and *bona fide*convey the same for the sum of thirty dollars, to one Farnifold Chapman, who, since the filing of this bill, hath conveyed the said interest and shares to the defendant Frederick Bryan-.-

Harding, the administrator of Hilen Godiey, answers that of the estate of his intestate only three slaves came to his hands, which his said, intestate received under the will of Frederick Johnson *;*and these he sold to pay the debts of the estate. That he has fully administered the estate of the said Hilen Godiey, and but for this suit, would have paid over the effects in his hands to the next of kin. That he hath in his possession, of the estate of his intestate, five slaves, with the proceeds of their hire, amounting to one hundred and twenty-five dollars or thereabouts, and that these slaves were derived from the estate of his intestate’s father. And, except as herein stated, he pleads expressly, that he has fully administered the estate of his intestate ; and he also relies on the Statute of Limitations made for the relief of executors and administrators, (Rev. Stat. ch. 46.)

The plaintiff took replication to the answers, and many depositions were read at the hearing, the tenor and effect whereof will be found in the opinion delivered by the Court.

*J. II.*and *J. W. Bryan,*for the plaintiff,

argued, 1. The defendants rely upon the illegitemacy of the plaintiff. He was bom within a few months after the death of Frederick Johnson, who lived with his mother as her husband and had opportunity of access. In which state of things, the'improbability of the hus*217band’s being the father, however strong, is not to be relied on., 14 Eng. C. L. Rep., 378. *Cope*v. *Cope,*24 Eng. C. L. Rep. 475. *Rex*v. *Luff,*8 East., 207. *State*v. *Herman,*13 Ire., 502. The declarations of husband or wife are not admissible to prove non-access. 2 Greenl. Ev., sec. 151, and the cases there cited.

2. That he has assigned his interest in the estate of Frederick Johnson, Sr. The plaintiff was very poor, ignorant and illiterate ; he makes his mark to the assignment; the assignee is the brother of the principal defendant; the value of the interest as signed when made (in 1842) must have been about $2,000, or more; the consideration of the assignment is $30. This is a' case of shocking inadequacy, so gross, as under the circumstances, as clearly to indicate fraud. It does not amount to an assignment for a valuable consideration, so great is the disproportion. 2 Story Eq. s. 1040. The assignment can only operate in this Court as an agreement for a valuable consideration, *bona fide*made, and the question should be regarded in the same light, as if the assignee had filed his bill for a specific performance of the agreement. And such an agreement as this, would surely find no favor in this Court. Hill on Trustees, 236. *Leigh*v. *Crump,*1 Ire. 299. 14 Ves. 215. Adams Eq. 108. 19 Eng. Ch. Rep. 186. *Hoppiss*v. *Eskridge,*2 Ire. Eq. 54.

3. The Statute of Limitations does not apply to a case of this character, neither in terms nor by analogy. It is regarded in Courts of Equity as a trust, or in the nature of á trust, and that rather of the express than the constructive character. *Wedder-burn*v. *Wedderburn, 2 Keen,*722, (15 Eng. Ch. Rep. 722). *Salter*v. *Blount,*2 l)ev. <fc Bat. Eq. 218. The claim of the plaintiff is in the nature of a charge upon the specific property, which is not barred by the Statute of Limitations.

*Donnell, contra.*

Nash, C. J.

Frederick Johnson, Sen., died in the month of March, 1819', having made a last will and testament, in which he gave the whole of his property to his wife and his two daughters, Mary and Sally, the one now the wife of Frederick Bryan, and the other of Hilen Godley, now dead. His will was made *218in June, 1818, At the time of his death, his wife was pregnant, and'subsequently gave birth to the plaintiff. The bill is filed for an account of the estate, and for a distributive share of the personalty, and for a conveyance of one-third of the realty. In 1803, the Legislature passed an act to authorize after-born children to receive' their due proportion of the estate of their father, when he lias'made no provision for them in his will. The defendants, in their answers, deny that the plaintiff is the child of the testator, Frederick Johnson, and aver that he is a bastard, and the son of Stephen Chapman. It is shown by the evidence, that the testator and his wife lived together in the same house for many years, and up to the time of the death of the former. By presumption of law, then, the plaintiff is his son, being born within two months after his death. The conception took place while the parties were married, and while they lived together ; and the rule is now well settled, that where there is opportunity for sexual intercourse between a man and his wife, it is presumed it did take place, unless the contrary be shown, provided there be issue ; and if the intercourse might have' occurred at a time when, by the course of nature, the husband might have been the father, the child is deemed his. *Morris*v. *Davis,*3 Car. *&*Pay., 215, 278. *State*v. *Herman,*13, Ire. 502. The only evidence upon which the defendants rely to prove the plaintiff to be illegitimate, consists of the declarations of Frederick Johnson to his wife. This evidence is not competent. Mr. Greenleaf, 2 vol. s. 151, says, the husband and wife are alike incompetent to prove the fact of non-access while they lived together, nor are the declarations of either competent to prove the illegitimacy, though tire child was bom three months after marriage, and therefore they had separated by mutual consent. *Bowles*v. *Bingham, 2*Munf. R. 442. *Lee’s*case, 8 East. 193. *State*v. Wilson, 10 Ire. 131. If there be access, nothing but impotence will bastardize the issue. *State*v. *Goode,*10 Ire. 49, *Commonwealth*v. *Shepard,*6 Binney, 283. Under the evidence irt this case we are bound to declare that the plaintiff is, in law* the son of Frederick Johnson, Sen., the testator.

The defendant, Bryan, says he has been in possession of the negroes set forth in his answer* as his share in right of his wife *219under the will of said testator, claiming them as his own property, adversely to all the world, for more than three years ; and he claims the benefit of the Act of 1820, as if specially pleaded. There is no saving in that statute expressly for any one, but it perfects only such possession of slaves as would have barred an action to recover them, under the Statute of Limitations'; The expression in the statute is, such person having such possession *“*shall be deemed and held to have a good and absolute title to “ such slave or slaves, *against all persons*whose claim is barred “by said statute.” In the preceding part of the section, it tells us what possession it intends to ripen, and to what it refers in the clause recited, to wit, a possession which will sustain an action to recover the slaves. This Act of 1820 constitutes .the 18th section of the Act of 1836, ch. 65. The 3rd section points out the time within which actions at law shall be brought; but both Acts apply to actions at law and legal rights, and have no bearing on this case. The Act of 1836, ch. 122, which in the 16th section secures to a child, born after the making of the parent’s will, a due portion of the estate, when he is not provided for in the will, directs that the infant “ may, at any time within two years after the probate of the will, by his next friend or guardian, file a petition, &c.;” and the 22nd section provides that should no petition be filed within two years, as prescribed for by this Act, it shall be the duty of the executor, or administrator with the will annexed, before he shall pay or deliver the legacies in said will, &c., to call upon the said legatees or devisees, &c., by a bill or petition, &c., to litigate their respective rights, &c.” By this section there is no time within which this bill or ■ petition for an interpleader is limited, when brought by the executor, and by its equity it must extend to a bill filed by the child for the same purpose. The object of the petition or bill, directed to be filed by the executor, is to settle the estate and to ascertain and settle the respective rights of the parties. This bill is pretty much for the same purpose ; nor does any presumption of payment or abandonment arise under the Act of 1826. See Eev. Stat. 1836, ch. 65, sec. 14. The plaintiff came of age in May, 1840, and the bill was filed in 1846 — six years after any legal payment * could have been made to him, or the presumption of an abandonment com*220menced. Where equity acts in analogy to the common law, time is no bar of itself, but it may furnish evidence of payment, satisfaction or abandonment; but this can have no such effect under ten years after the action ought to have been brought. There is, therefore, no statutory bar to the plaintiff’s recovery, nor does any presumption arise against him.

Church Chapman, one of the defendants, alleges that he has purchased from the other defendants, Frederick Bryan and wife, and said Godley and wife, for a valuable consideration, and which has been paid, all their interest in the estate of the said testator, and that he had no notice of the plaintiff’s claim at the time he made his purchase ; and that, therefore, he is a *bona fide*purchaser, without notice. These purchases were made by him in 1835 and 1837. In a subsequent part of his answer lie states that *“*from the death of the testator, Frederick Johnson, up to a short time before the filing of the bill, it was notoriously and openly admitted by him (the plantiff) &c., that he was the child of Stephen Chapipan, and not of the testator, and that his father, Stephen Chapman refused and objected to any claim being made by the defendant, David Chapman, on account of the plaintiff &e. This is a clear admission, not only that the claim of the plaintiff was notorious, but also satisfactory evidence that he, the defendant, Church knew it. It is also stated as a proof that the plaintiff knew he had no legal claim, that he sold his interest in 1842, to one Farnifold Chapman for thirty dollars, who since the filing of the bill, to wit, in 1847, sold it to Frederick Bryan, one of ’the defendants. These statements satisfy the Court that the whole of this business was a combination on the part of the defendants to -avail themselves of the destitute state of the plaintiff, and his ignorance, to secure to themselves, whatever interest he might have in the estate of Frederick Johnson, Sen. The most charitable construction that can be put on the answer is, that they did, in truth, believe that the plaintiff was illegitimate, and therefore not entitled to an interest in Frederick Johnson’s estate ; but that they knew of bis claim, there can be no question.

This sale in 1842 by the plaintiff, is relied upon by the defendants as a bar to his recovery. It cannot have that effect. The pri.ee is so' totally inadequate, and the circitmstances under which *221it was made so suspicious, that a Court of Equity -will not enforce it as a bar to the plaintiff’s claim.

The defendant, Church Chapman, relies also upon Iris long possession as barring the plaintiff’s claim. The same answer applies to his defence on that ground, as has already been given to that .of the other defendants : — being a purchaser with notice, he purchased subject to the claim of the plaintiff.

The answer of Henry Harding, administrator of Hilen Godley, admits that he has in his hands, of the estate of his intestate, five negroes, who came to him as such administrator from the estate of the father of Hilen Godley ; that he administered in 1836, and advertised according to law. The assets of Godley are still in his hands, and they are not protected by the statutes of ’15 and ’91, from the claim of the plaintiff to an account of the assets of Frederick Johnson, Sen., or of his intestate, which came to his hands.

There must be a decree for the plaintiff, and a reference to the Master of this Court, to take an account of the estate of Frederick Johnson, Sen., as prayed.

Per Curiam. Decree accordingly.