#### MANLY H. BYERLY, Administrator of the Estate of IVISON JEROME TOLBERT v. RUBY ROSALIE SHIRLEY TOLBERT, widow; MILDRED VIOLA TOLBERT; JOSEPHINE ANNETTE TOLBERT, GLENDA SUE TOLBERT; JERRY MICHAEL TOLBERT; SANDRA LOUISE TOLBERT and RUBY ROSALIE SHIRLEY TOLBERT (the person with whom MILDRED VIOLA TOLBERT, GLENDA SUE TOLBERT, JERRY MICHAEL TOLBERT, JOSEPHINE ANNETTE TOLBERT and SANDRA LOUISE TOLBERT live.)

(Filed 8 April, 1959.)

*1.*Death § 8—

While recoveries for wrongful death are not assets of the estate in the usual meaning of that term, they are to be distributed as provided for the distribution of personal .properly in case of intestacy. G.S. 2S-173.

2. Descent and Distidbution § 4—

G.'S. 35-45 and G.S. 28-154 contemplate that an after-born child of an intestate is entitled to share in his estate, both real and personal.

3. Same—

¡G.'S. 29-1(7) applies to the descent of realty and not to the distribution of personalty to an after-born child. Whether the statute relates solely to the descent of realty to collateral heirs, *quaere?*

4. Statutes § 5a—

The primary rule in the construction of a statute is to ascertain the intention of the General Assembly.

5. Descent and Distribution § 4—

A child born to intestate’s widow more than 280 days after intestate’s death is presumed not to have been *en ventre sa mere*at the time of intestate’s death, but this presumption may be rebutted by evidence tending to show that intestate was in fact the father of the child, although in the absence of such evidence the presumption is determinative.

<>. Same: Evidence § 44—

Whether the term of pregnancy may extend 322 days or more from •the moment of conception is a proper subject of testimony by qualified ■medical experts, and in a particular ease, all relevant facts concerning •the particular pregnancy may he considered by such experts as a basis for their opinions.

*7.*Descent and Distribution § 4—

Where the wife testifies that her husband was the father of her child, born more than 280 days after the husband’s death, her testimony is sufficient evidence to require ‘the submission to .the jury of the question of whether the intestate was the child’s father for the purpose of determining whether such child is entitled to a distributive share in the personalty of intestate, the burden of proof being upon such child to establish the affirmative of the issue by the greater weight of the evidence. .

*28Appeal 'by guardian *ad litem*for Sandra Louise Tolbert from *Olive, J.,*January 19, 1959, Term, of Fohsxth.

The .administrator of the Estate of Ivison Jerome Tolbert brought this action for -a judicial determination of this question: Is 'Sandra Louise Tolbert entitled to a child’s share in the distribution of a fund of $10,666.67 recovered by plaintiff through compromise settlement of an action for the wrongful death of his intestate?

At the time of his death on May 10, 1957, as Hie result of a truck collision, Ivison Jerome Tolbert, plaintiff’s intestate, ■was married to and living with defendant Ruby Rosalie Shirley Tolbert. He was survived by his widow, who was then thirty years of age, and by four children of their marriage, to wit, Mildred Viola Tolbert, born August 24, 1945, Josephine Annette Tolbert, born February 28, 1948, Glenda Sue Tolbert, born January 8, 1950, and Jerry Michael Tol-bert, bom October 7, 1952. These four children are represented herein by Weston P. Hatfield, Esq., their guardian *ad litem.*

On March 29, 1958, Ruby Rosalie Shirley Tolbert, the intestate’s widow, gave birth to a daughter, whom she named Sandra Louise Tol-bert. At birth, this child weighed ¡seven pounds and two ounces. She is represented herein by Clyde C. Randolph, Jr., Esq., her guardian *ad litem.*

Upon these facts plaintiff alleged: “. . . it is necessary to have a judicial determination as to- whether or not the child born more than ten lunar months from the death of Ivison Jerome Tolbert could! be his ’child.”

Ruby Rosalie Shirley Tolbert, the intestate’s widow, filed no answer.

The guardian *ad litem*for the four children bom prior to the intestate’s death ’admitted plaintiff’s factual ’allegations and then averred “that Sandra Louise Tolbert having been bom more than ten lunar months from the death of Ivison Jerome Tolbert is not the child of Ivison Jerome Tolbert and thus is not entitled to take in distribution assets of his estate.”

The guardian *ad litem*for Sandra Louise Tolbert admitted plaintiff’s factual ’allegations; and, for .a further .answer, ’alleged “that the defendant, Sandra Louise Tolbert, who was born to the defendant, Ruby Rosalie Shirley Tolbert, on March 29, 1958, is the daughter of Ivison Jerome Tolbert, deceased, and as such is entitled to share in his estate.”

At trial, the intestate’s widow testified, without objection, that she was the mother of Sandra Louise Tolbert, who was born March 29, 1958, ¡and that Ivison Jerome Tolbert, her 'husband, was the father of Sandra Louise Tolbert. There was no 'Cross-examination.

*29Tile guardian *ad litem*for Sandra Louise Tolbert proffered, but the court excludedi, testimony of Dr. Edward R. White, Jr., whom the court found to be a medical expert, specializing in internal medicine, tending to show that, under the admitted facts, Ivison Jerome Tolbert *could have been*the father of Sandra Louise Tolbert.

The .guardian *ad litem*for Sandra Louise Tolbert tendered, but the count refused to submit, this issue: “Is Ivison Jerome Tolbert, deceased, the father of Sandra Louise Tolbert?”

The issue submittedi, and answered “No” in accordance with the court’s peremptory instruction, was as follows: “Was Sandra Louise Tolbert horn within ten lunar months after the death of Ivison Jerome Toibert?”

Thereupon, the court adjudged that Sandra Louise Tolbert was not entitled to a distributive share in the personal property of Ivison Jerome Tolbert, deceased, but that his distributees were his said widow 'and his said four 'children bom prior to his death.

The guardian *ad litem*for Sandra Louise Tolbert excepted and appealed.

*Walser & Brinkley and Elledge & Mast for plaintiff, appellee.*

*Clyde C. Randolph, Jr., for defendant Sandra Louise Tolbert, appellant.*

*Weston P. Hatfield for defendants Mildred Viola Tolbert, Josephine Annette Tolbert, Glenda Sue Tolbert and Jerry Michael Tolbert, ap-pellees.*

Bobbitt, J.

The jury’s answer to the issue submitted simply declares .a fact that -is admitted by all parties.

The basic question is whether the fact that Sandra Louise Tolbert was bom more (than ten lunar months after the intestate’s death establishes conclusively as a matter of law that she is not entitled to a 'child’s share in the 'distribution of the intestate’s estate. If not, 'appellant, upon offering evidence sufficient to warrant an affirmative answer, was entitled to have the issue he tendered submitted to the jury.

We need not consider whether the count erred in excluding the proffered testimony of Dr. White. If the issue tendered by appellant was .appropriate, ¡the widow’s testimony was sufficient to warrant its submission to the jury.

Plaintiff’s recovery for the wrongful 'death of his intestate, while not assets “in the usual acceptation of the term,” *Lamm v. Lorbacher,*
      *30235 N.C. 728, 71 S.E. 2d 49, is to 'be distributed as provided by G.S. Ch. 28 “for the distribution, of personal property in case of intestacy.” G.S. 28-173.

G.S. 31-45, in pertinent part, provides: “Children bom after the making of tire parent’s will, and whose parent shall die without making any .provision for them, shall be entitled/ to such share .and proportion of the parent’s estate as if he ¡or s/he had died intestate, . . .”

G.S. 28-154 *et seq.,*relate to the payment or satisfaction of the share of such after-horn child.

It is noteworthy that G.S. 31-45 and G.S. 28-154 were originally enacted as §§ 62 and 109, respectively, of Ch. 113, Public Laws of 1868-69. Their provisions disclose their interrelation.

These statutory provisions clearly assume and contemplate that an after-born child of an intestate shares in tire estate, both real and personal, of such intestate.

No provision of G.S. Ch. 28 purports to restrict the distribution of tire intestate’s personal estate to an after-torn 'child whose birth occurs within ten lunar months from the death of the intestate.

In *Hill v. Moore,*5 N.C. 233, it was held that ah infant *en ventre sa mere*when the father dies is entitled to a child’s distributive share of the father’s personal estate.

In *Grant v. Bustin,*21 N.C. 77, *Gaston, J.,*said: “. . . . tire rule ... is that the *right*to tire distributive share vests at the death of the intestate. (Citation) It is ©aid the rule is liable to an exception in the case of -a child in *ventre sa mere.*In truth, however, a child in *ventre sa mere*is held capable of talcing a diistributive share, ¡because for all beneficial purposes it is in *rerum natura,*is regarded as actually *in esse.”*

The question in *Grant v. Bustin, supra,*was whether a half brother of the intestate, bom ten months -and a half after *her*death, was entitled, under the statute of distribution, to a share of *her 'personal estate*in common with her brothers and sisters living at her death. After stating that “one not in being, ¡and not considered as in being at the death of an intestate, can, under’ the statute of distributions, prefer no claim to a share of that intestate’s ’estate,” the opinion concludes: “It is not 'stated in this ease, nor can we infer’ from the facts set forth, that Benjamin Bustin was in *ventre sa mere*at ¡the death of Patience Pitts, .and we *therefore*hold that he was not entitled to the distributive share claimed for him in her personal estate.” (Our italics) This decision was not based on, nor does the opinion refer to, the 1823 statute discussed below.

In *Grant v. Bustin, supra,*admittedly the intestate was the *.half*
      *31
      *sister*of the child (Bustin) born ten months and a half after the intestate’s death. This child wiais entitled to share in the intestate’s personal estate only if *en ventre sa mere*when she died. The decision is ■authority for this proposition: In the absence of evidence that he was *en ventre sa mere*when his half-sister died intestate, a child born ten and a half months after her death is not entitled to ©hare in the distribution of her personal estate.

G.S. Ch. 29, entitled “Descents,” prescribes the rules of descent “When any person dies seized of any inheritance, or of any right thereto, or entitled to any interest therein, not ¡having devised the same.”

Appellees rely on the portion of G.S. 29-1 reading as follows: “Rule 7, Unborn infant miay be heir. No inheritance '©hall descend to any person, as heir of the person last seized, unless such person shall be in life ,at the dearth of the person last seized, or ©hall be born within ten lunar months after the death of the person last seized.”

Prior to the enactment of this statute, this Gaunt, in *Cutlar v. Cutlar,*9 N.C. 324, decided at June Term, 1823, held: “So in this State, if the son purchases land and dies without issue, it descends for the present upon the ¡brothers and sisters then being, but if any are subsequently born ¡they become equally entitled; and the isame law must prevail relative to half-blood Where they lare entitled to inherit.” To like effect,: *Seville v. Whedbee,*12 N.C. 160; *Caldwell v. Black,*27 N.C. 463, 467. Under tills rule when lan intestate died without issue, brothers and sisters of .the intestate whether of the whole blood or of the half blood, bom after the death of the intestate, 'irrespective of any time limitation, came in and >shared with those in whom the inheritance vested temporarily at his death. 1 Mordeeai’s Law Lectures 646.

The common law rule as stated in *Cutlar v. Cutlar, supra,*was changed by the 1823 statute now codified as G.S. 29-1, Rule 7. In *Rutherford v. Green,*37 N.C. 121, 125, this Court held ¿at the provisions of the 1823 'Statute “are altogether prospective and do not embrace the case of a descent from a person before that time dead.”

Although referred to in *Rutherford v. Green, supra,*and elsewhere, as “ch. 1210,” we find this 1823 statute sat forth as Ch. XXXII, Laws of North Carolina, enacted by the General Assembly at its session commencing November 17, 1823, in a volume containing the Laws of North Carolina from 1817 -to 1825. The wording of the 1823 'Statute is identical with G.S. 29-1, Rule 7, with two exceptions: (1) The original does not contain the caption, “Unborn infant miay be heir.” (2) The original contains the words “ten months,” not “ten lunar *32months.” The 1823 statute was entitled, “An Act to amend an Act, entitled ‘An Act regulating descents,’ passed in the year 1808.”

It is noted thiat Cih. IV, Laws of 1808, entitled “An Act to Regulate Descents,” established -six rules “regulating 'the descent of inheritance,” the first three relating to lineal descents and /the last three relating to collateral descents. We are not now concerned with amendments from time to time in these six prior rules of descent. Since the Revised Code of North Carolina, 1854, the Act of 1823 has been codified -as Rule 7, i.e., it follows immediately /the three rules ¡relating to descents of inheritances “on failure of lineal descendants.” (Note: "Ten lunar months,” in lieu of “ten months,” appears in this -and subsequent codifications.)

As stated by *Stacy, C. J.,*in *Trust Co. v. Hood, Comr. of Banks,*206 N.C. 268, 173 S.E. 601: “The heart of the statute is the intention of tire law-making body.”

It appears probable that tfhe purpose of the Act of 1823 was to change the common law rule so that tire final vesting *of inheritances*would not be in suspense under the circumstances considered in *Cutlar v. Cutlar, supra.*When an intestate dies without issue the subsequent birth of brothers ¡and sisters, either of 'the whole blood or of the half blood, might be reasonably expected to occur from time to time over .a period of many years. While this is true -as to 'collateral relationships, it i's not true as to a child of the intestate. Birth of such chd-ld, *rerum natura,*-will occur, if ¡at all, within a comparatively short time after the intestate’s death.

We need not decide whether G.S. 29-1, Rule 7, relates solely to tibe descent of *inheritances,*real property, *to collateral relations*“on failure of lineal descendants.’’ It is sufficient for present purposes to hold that it does not relate to the distribution of an intestate’s personal estate to -an after-born child.

Appellees cite *Shinn v. Motley,*56 N.C. 490, *Britton v. Miller,*63 N.C. 268, *Deal v. Sexton,*144 N.C. 157, 56 S.E. 691, and *Severt v. Lyall,*222 N.C. 533, 23 S.E. 2d 829, in ¡support of their contention.

In *Shinn v. Motley, supra,*the opinion of *Battle, J.,*contains this sentence: “The child of Nancy Furr, which was born within ten months after the death of the testator, is to be considered as having been then *in ventre sa mere,*¡and of course entitled as a child bom at that time.” However, the basis of decision ’was that the testator had expressly provided that after-born children (testator’s grandchildren) should share.

In *Britton v. Miller, supra,*¡the facts and decision pertinent here were ais follows: Upon the dearth of Margaret S. Britton in 1864, the *33share of her real and .personal property devised and bequeathed by her to the 'children of her brother Stephen W. Britton vested in Rosa Mary Britton, 'the only child of Stephen W. Britton -bom prior to the death of Margaret S. Britton. In September, 1864, after ¡the death of Margaret S. Britton, Rosa Mary Britton, an infant, died; and upon her death her estate vested in Stephen W. Britton, her father. In 1866 or 1867, Margaret Britton, a daughter of Stephen W. Britton by a second marriage, was born. This Court held that Stephen W. Britton’s estate, derived from Rosa Mary Britton, was not “divested out of the father by the birth of his daughter Margaret more ¡than ten lunar months *after the death of Rosa Mary.*Rev. Code, ch. 38, Rule 7.” (Our italics) Since no contention was made that Margaret was born or *en ventre sa mere*when Rosa Mary died, the reference to the statute, now G.S. 29-1, Rule 7, may not be regarded as the basis of decision.

In *Deal v. Sexton, supra,*the rule of descent was stated in these words: *.*. posthumous children inherit in ¡all oases in ‘like manner *as*if they were bom in the lifetime of the intestate and -had' survived him, and for all the beneficial purposes of heirship a child *en venire sa mere*is considered absolutely bom.” In the cited case, the child was born within four months of the father’s death. The fact that the child was *en ventre sa mere*when the intestate died was not questioned. *Brown, J.,*referring to the statute now codified as G.S. 29-1, Rule 7, said: “The statute law of this State treats the unborn child in its mother’s womb with the same consideration as if bom.” The cited case may not be considered authority for the proposition that .a child bom more than ten lunar months ¡after the intestate’s death is excluded as a matter of law from inheriting, that is, that such child is precluded from asserting and offering evidence tending to 'show that he was in fact *en ventre sa mere*when his father died.

In *Severt v. Lyall, supra,*the owner of land, subject to ¡a life estate, died intestate, predeceasing the life tenant. After holding that his heirs were to be determined a|si of the date of *his*death, not the death of the lifo tenant, ¡a further question was posed by these facts: When the intestate died), August 23, 1914, he was survived by two sisters of the whole blood. Thereafter, there were ¡boom, to the intestate’s father and his father’s .second wife four children, the plaintiffs, the eldest of whom was bom in December, 1919. The opinion of *Barnhill, J. (later C. J.),*concludes: “It follows that ¡the *feme*defendants, the nearest blood kin of Clarence Odell Severt, living at ¡the time he died, acquired title by inheritance at his death. Plaintiffs cannot take as his heirs. They were not ‘in life’ at the time of the death of the re-*34mainderman 'and were nut born within ten lunar months thereafter. C.S. 1654, Rule 7.” It seems clear that the Act of 1823, now G.S. 29-1, Rule 7, was enacted primarily, if not solely, to apply to a factual situation such as that presented in this ease.

G.S. 41-5 provides: “An infant unborn, but in esse, shall be deemed a person ctapalble of taking by deed or other writing any ©state whatever in the same manner as if he were ¡bom.”

G.S. 41-5 was considered in *Mackie v. Mackie,*230 N.C. 152, 52 S.E. 2d 352, in relation to these facts: By deed dated July 16, 1894, John Mackie, Sr., conveyed certain land to his son, John Mackie, Jr., “for life and then to his -children and their 'heirs 'and assigns.” John Mackie, Jr., had no children when this voluntary conveyance was executed. A deed dated January 15, 1898, executed by John Mackie, Jr., et ah, purported to revoke under G.S. 39-6 the future interests conveyed by his father’s deed. The first child of John Mackie, Jr., was born June 9, 1898. This Court held -that the purported deed of revocation was void. *Denny, J.,*for the Court, said: “Applying the law to the facts in this case, it is presumed that the child of John W. Mackie, Jr., who was born on 9 June, 1898, was conceived 280 days, or ten lunar months, prior to the date of hie ‘birth, *in the absence of evidence to the contrary,*and was therefore in being at the time the purported deed of revocation was executed on 15 January, 1898. *S. v. Forte, supra; S. v. Bryant,*228 N.C. 641, 46 S.E. 2d 847; 16 Amer. Jur. 852.” (Our italics)

In 16 Am. Jur., Descent and Distribution § 80, pp. 851-852, this statement .appears: “Posthumous children, if bom alive . . . inherit as 'they would ¡have if they ¡had been bom in the lifetime of the intestate and had survived him, and they are in esse for the purpose of taking under the rule from the time of conception, the conception, for the purpose of the rale being presumed to be nine months before birth, but evidence to rebut tire presumptioai is admissible.”

In *S. v. Forte,*222 N.C. 537, 23 S.E. 2d 842, and in *S. v. Bryant,*228 N.C. 641, 46 S.E. 2d 847, whiat constituted in law o-r in fact the term of pregnancy was at most a subordinate circumstance bearing up'on the primary issue. The -sentence in *S. v. Forte, supra,*quoted in S. *v. Bryant, supra,*to wit, “And it is.-aj matter of -common knowledge that the term of pregnancy is ten lunar months, or 280 days,” is to be understood as a general statement that, in the absence of evidence to the contrary, the term of pregnancy is presumed to be ten lunar months or 280 days.

It is noted -that we are concerned here with a -child born of the woman to whom the -intestate was married 'and with whom 'he was *35living at the time of hie death. The question for decision is: When it is assented on behalf of such child that the intestate was heir father, does ¡the fact ¡that such child was bom more -than ten lunar months or 280 days after the intestate’s death, standing alone, preclude the child *as a matter oj law*from receiving ¡a child’s -share in the distribution of the intestate’s personal estate? Absent a statute so providing, the ¡answer is, “No.” Whether su-eh child is the child of intestate is determinable as -an -issue o-f fact.

Whether, -according to the l-aws of nature, the term of pregnancy may extend 322 days or more from the moment of -conception, is a proper subject of testimony by qualified medical experts. In determining whether -such prolonged term -of pregnancy occurred in a particular -case, all -relevant facts concerning the particular pregnancy would seem an essential ha-sis for opinion evidence by qualified medical experts.

The -applicable rule is this: If, under such -circumstances, a child is bom more than ten lunar months -or 280 days -after the death of the intestate, the presumption is -that -the chi-ld was not *en ventre sa mere*when the intestate -died. In the absence -of evidence -to the contrary, this presumption is -determinative; but this presumption may be rebutted by evidence tending to show that intestate w-as in fact the father -of -the child. Thus, when the issue is raised, the burden o-f proof -rests upon such child to establish by the greater weight of the evidence -that the intestate wa-s the father.

The rule stated requires that -a new trial be ¡awarded. Sandra Louise Tolbert was entitled, upon the testimony -o-f her mother, to -h-ave submitted the issue tendered in -her behalf, to wit, “Is Ivi-son Jerome Tol-bert, -deceased, the father of Sandra Louise Tolbert?”

New trial.