19 S.E. 155 | N.C. | 1894
The petition alleged that Joseph McLaughlin by deed dated in January, 1881, conveyed the land described in the petition to the feme plaintiff, Annie M. Heath, "and her children."
2. That at the time said deed was executed by the said Joseph McLaughlin, the father of the said feme plaintiff, she had no child born, but the defendant, Eva Heath, was born within two (548) months from the date of said deed, and the other defendants, Eula Heath, Henry Heath and Etta Heath, were born to the said feme plaintiff and her husband, E. J. Heath, more than twelve months from the date of said deed.
A guardian ad litem was appointed for the infant defendants, Eula, Henry and Etta, who demurred to the petition. His Honor overruled the demurrer and remanded the case to the clerk to be (549) proceeded with, and from this judgment the defendants Eula, Henry and Etta appealed.
In Dupree v. Dupree,
The law as thus declared is still in force and is only modified in so far as it affects a child en ventre sa mere. The Code, sec. 1328. From this it must follow that Eva, who was en ventre sa mere at the date of the conveyance, is the only child who takes any estate thereunder. For a full discussion of the subject the reader is referred to Dupree v. Dupree,supra. The judgment must be
Affirmed.
Cited: Campbell v. Everhart,