Reed v. Blair, 202 N.C. 745 (1932)

May 18, 1932 · Supreme Court of North Carolina

202 N.C. 745

RALPH D. REED v. ELVIRA BLAIR et al.

(Filed 18 May, 1932.)

Descent and Distribution B b — Irregularity in divorce proceedings is not ground for declaring children by subsequent marriage illegitimate.

Where in an action for divorce on the grounds of adultery of the wife the trial has proceeded upon the issue of abandonment, O. S., 1659, and on the- verdict of the jury on the latter grounds the marriage has been annulled, the judgment thus rendered is not void, and the wife’s children by a later marriage will not be declared illegitimate and thus denied the right to inherit from their father. O. S., 279. In this case an amendment to the divorce proceedings nunc pro time was allowed by the trial judge.

Appeal by plaintiff from Sink, J., at February Term, 1932, of Buncombe.

Affirmed.

Marcus Erwin for plaintiff.

Fortune & Fortune for defendants.

Pee Otjeiam.

By consent a trial by jury was waived and the judge found the facts. J. A. Beed and Ida Burrell were lawfully married, the plaintiff being their only child. Mrs. Beed died several years ago; J. A. Beed died on 30 September, 1931.

J. A. Beed and Elvira Blair were married in Asheville on 14 October, 1925. • They had five children, two of whom were born before the marriage.

Elvira Blair, 'whose maiden name was Elvira Ingle, had previously intermarried with O. E. Blair. On 13 May, 1924, O. E. Blair brought suit against his wife for divorce on the ground of adultery and caused her to be personally served with summons. In response to the third issue the jury found that the defendant in that case had abandoned the plaintiff and that they had lived separate and apart for five successive years preceding the commencement of the action. The plaintiff was given an absolute divorce. .

Judge Sink permitted an amendment to tbe complaint in tbe action for divorce nunc pro tunc so as to make tbe allegations and tbe issues conform and adjudged that Elvira Reed is tbe lawful widow of J. A. Reed, deceased, and tbat tbeir children are entitled to share in tbe estate of tbeir father, subject to tbe lawful rights of tbe widow.

Tbe statute previously in force authorized an absolute divorce if there bad been a separation between tbe husband and tbe wife and they bad lived separate and apart for five successive years and tbe plaintiff bad resided in tbe State for tbat period. O. S., 1919, sec. -1659, subsec. 4 and amendment. Tbe issues in Blair v. Blair determined these questions — tbe marriage, tbe plaintiff’s residence in tbe State for more than five years, tbe abandonment and tbe separation for tbe statutory period. Ellis v. Ellis, 190 N. C., 418. If it be conceded, as tbe plaintiff contends, tbat tbe amendment nunc pro tunc was improper, tbe judgment was not void. Irregularity is not sufficient cause for declaring the second marriage a nullity and tbe children illegitimate. C. S., 279.

Tbe parties agree, if Elvira Reed is tbe lawful widow of J. A. Reed, tbat Cheesborough is tbe administrator of J. A. Reed’s estate. Judgment

Affirmed.