{ "id": 8523762, "name": "CAROLINE BATCHELDOR, TOM SMITH, JAMES B. SMITH, JOHN B. SMITH, ALLEN SMITH, MARION C. SMITH, and HARRIET SMITH ANISOWICZ, Plaintiffs v. WILLIAM RICHARD BOYD, SR., T. MICHAEL JORDAN, Successor Administrator of the Estate of J. R. BOYD, JR., BARBARA BURGIN, TOMMY G. BOYD, JR., CAROLYN CLAYTON, Executrix of the Estate of Henry Clayton, and ROBERT M. CHAFIN and JOHN LYNDON CHAFIN, Co-Executors of the Estate of Robert Chafin, Defendants", "name_abbreviation": "Batcheldor v. Boyd", "decision_date": "1992-12-15", "docket_number": "No. 9130SC1285", "first_page": "275", "last_page": "282", "citations": [ { "type": "official", "cite": "108 N.C. App. 275" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "84 ALR4th 313", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "393 S.E.2d 847", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "854" } ], "opinion_index": 0 }, { "cite": "327 N.C. 89", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498438 ], "year": 1990, "pin_cites": [ { "page": "101" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0089-01" ] }, { "cite": "188 S.E.2d 317", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1972, "pin_cites": [ { "page": "325", "parenthetical": "citations omitted" }, { "page": "325-26", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "281 N.C. 159", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574448 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0159-01" ] }, { "cite": "159 S.E.2d 562", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "273 N.C. 189", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574914 ], "year": 1968, "pin_cites": [ { "page": "197" } ], "opinion_index": 0, "case_paths": [ "/nc/273/0189-01" ] }, { "cite": "334 S.E.2d 46", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "50", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "314 N.C. 412", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4685603 ], "year": 1985, "pin_cites": [ { "page": "418", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0412-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 49-12", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "year": 1984, "opinion_index": 0 } ], "analysis": { "cardinality": 779, "char_count": 16924, "ocr_confidence": 0.78, "pagerank": { "raw": 2.62217594388865e-07, "percentile": 0.8214432578887804 }, "sha256": "e78ca13248db19ba4887324644e05c144cd6aea4dcf36bfec80a4caba99b83b1", "simhash": "1:23611612349b18f3", "word_count": 2821 }, "last_updated": "2023-07-14T21:33:37.144077+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JOHNSON and LEWIS concur." ], "parties": [ "CAROLINE BATCHELDOR, TOM SMITH, JAMES B. SMITH, JOHN B. SMITH, ALLEN SMITH, MARION C. SMITH, and HARRIET SMITH ANISOWICZ, Plaintiffs v. WILLIAM RICHARD BOYD, SR., T. MICHAEL JORDAN, Successor Administrator of the Estate of J. R. BOYD, JR., BARBARA BURGIN, TOMMY G. BOYD, JR., CAROLYN CLAYTON, Executrix of the Estate of Henry Clayton, and ROBERT M. CHAFIN and JOHN LYNDON CHAFIN, Co-Executors of the Estate of Robert Chafin, Defendants" ], "opinions": [ { "text": "COZORT, Judge.\nThis appeal is from an order permitting the exhumation of the corpse of J. R. Boyd, Jr., for the purposes of deoxyribonucleic acid (DNA) testing of tissue samples to aid in determining the paternity of defendant William Richard Boyd, Sr. We affirm.\nOn 17 January 1990, the Haywood County Clerk of Superior Court appointed William Richard Boyd, Sr., defendant herein, administrator of J. R. Boyd, Jr.\u2019s estate. On 23 February 1990, Robert Chafin and Henry Clayton filed a petition requesting revocation of defendant Boyd\u2019s appointment. After a hearing, the clerk of superior court removed defendant Boyd as administrator and substituted T. Michael Jordan. In April 1990 defendant Boyd filed a complaint stating that he intended to bring a declaratory judgment action to determine inheritance rights and petitioned the court for permission to depose a seriously ill witness. The court appointed counsel and set the deposition for 8 May 1990, but the witness was too ill to be deposed. Plaintiffs herein, alleged heirs of J. R. Boyd, Jr., filed a declaratory judgment action on 12 June 1990 seeking a determination of whether defendant Boyd is J. R. Boyd, Jr.\u2019s son and whether he is entitled to share in the estate. The declaratory judgment action was filed against defendant William Richard Boyd, Sr., Chafin, Clayton, and others with interests in line with the plaintiffs.\nIn November 1990 defendant Boyd filed a motion seeking permission to exhume J. R. Boyd, Jr.\u2019s body in order to perform DNA sampling and testing to determine the relationship, if any, between J. R. Boyd, Jr., and defendant Boyd. Judge Marlene Hyatt denied the request; however, she provided in the order that defendant Boyd could move for a rehearing at the end of February 1991 after the completion of additional discovery related to the exhumation and DNA testing. The exhumation rehearing was held on 27 May 1991 before Judge Beverly T. Beal. On 19 June 1991, Judge Beal entered an order, finding the following pertinent facts:\n2. J. R. Boyd, Jr., died intestate;\n3. Defendant Boyd was born on September 16, 1936, to Mary Kirkpatrick. His original name was William Algernon Kirkpatrick; (Defendant\u2019s Exhibit 1). No father\u2019s name is shown on the birth certificate in the space provided;\n4. There exists a complaint for divorce filed by \u201cMary K. Jones,\u201d against Armistead Jones, filed in Haywood County (Defendant\u2019s Exhibit 3). In neither the divorce complaint nor judgment is there an allegation or finding that a child was born to the marriage;\n5. Mary K. Jones was Mary Kirkpatrick. She alleged that she and her husband Armistead Jones were married \u201cduring the month of August 1935,\u201d and lived together \u201cuntil November 1935,\u201d. at which time they separated;\n6. Boyd family anecdotal history relates that Defendant Boyd was conceived on December 15, 1935 of the union of J. R. Boyd, Jr., and Mary Kirkpatrick (Defendant\u2019s Exhibit 5). Dicky [sic] Boyd (Defendant) is referred to in Will of J. R. Boyd, Sr. He served as Co-Executor of the Estate of Bessie Boyd, sister of J. R. Boyd, Jr. (Defendant\u2019s Exhibit 8) as Co-Executor of the estate of Daisy Boyd, also sister of J. R. Boyd, Jr. (Defendant\u2019s Exhibit 8) in both applications for Letters Dickey [sic] Boyd is referred to as \u201cnephew\u201d of deceased, and listed as a beneficiary of the Wills;\n7. J. R. Boyd, Jr. and Mary Kirkpatrick were married on December 22, 1940 (Defendant\u2019s Exhibit 9);\n8. Defendant Boyd lived with J. R. Boyd, and J. R. Boyd, Jr. held him out in the community to be his son and readily admitted his paternity (Defendant\u2019s Exhibits 11, 12);\n9. Defendant Boyd changed his name from William Algernon Kirkpatrick to William Richard Boyd by special proceeding in Haywood County in 1958. That proceeding required the posting of a notice of intent to change name at the courthouse (Defendants\u2019 Burgin, Tommy G. Boyd, Jr., Clayton and Chafin Exhibit E attached to brief);\n10. Mary K. Boyd sought divorce in an action in Florida. She alleged that \u201cno children were born of this marriage.\u201d (Bill of Complaint, certified copy, submitted by Defendants Burgin, T. G. Boyd, Jr., Clayton and Chafin);\n11. There is no evidence that Mary Kirkpatrick sought child custody, or support, as opposed to either Armistead Jones or J. R. Boyd, Jr.;\n* * \u2021 *\n14. North Carolina law has recognized blood testing .for purposes of establishing or disproving parentage (G.S. 8-50.1). DNA tests and comparisons have been developed and are presented through the testimony of qualified geneticists;\n15. DNA genetic testing for the purpose of determining parentage has been established as a reliable process; the tests have the power to exclude an individual as the parent or child of another; statistical probability of inclusion is presentable;\n16. If the remains to be tested are affected by the embalming process or ground water, the effect will be to prevent testing, or render testing obviously inconclusive; the vault was designed to be air and water tight;\n17. Valid testing, analysis and reporting comparing DNA obtained from a dead human body and from the blood of a living human can be accomplished (See also Defendant Boyd\u2019s Exhibits 17 and 18; see Dr. Ryal\u2019s testimony);\nBased upon the findings of fact, Judge Beal concluded:\n(2) The information sought is reasonably calculated to lead to the discovery of admissible evidence.\n(3) DNA testing for parentage is established as reliable. The complexities related to obtaining and testing specimens of bone, tissue and blood from a dead body are not so insurmountable as to preclude the attempt.\n(4) Good cause has been shown to exhume the body of J. R. Boyd, Jr.\n(5) The just and orderly disposition of a decedent\u2019s property is a lawful state interest, the importance of which outweighs the natural and proper respect for the place of interment of the dead.\nIt is therefore ORDERED that the body of J. R. Boyd, Jr. be exhumed and that DNA testing be conducted ....\nOn 18 July 1991, notice of appeal was filed by plaintiffs and those defendants with interests in line with the plaintiffs, who shall be known hereinafter as \u201cAppellants.\u201d Appellants obtained from Judge Hyatt a stay of Judge Beal\u2019s order of exhumation.\nOn appeal appellants argue that the trial court erred in issuing the order of exhumation because the results of the DNA testing are not admissible for the purpose of establishing a right to inherit from a decedent\u2019s estate. Defendant Boyd counters that results of DNA testing are admissible to prove that he was legitimated pursuant to N.C. Gen. Stat. \u00a7 49-12 (1984) by the subsequent marriage of his mother to J. R. Boyd, Jr. As a legitimate child, defendant argues, he is entitled to share in his father\u2019s estate.\nN.C. Gen. Stat. \u00a7 49-12 provides:\nWhen the mother of any child born out of wedlock and the reputed father of such child shall intermarry or shall have intermarried at any time after the birth of such child, the child shall, in all respects after such intermarriage be deemed and held to be legitimate and the child shall be entitled, by succession, inheritance or distribution, to real and personal property by, through, and from his father and mother as if such child had been born in lawful wedlock. (Emphasis added.)\nTo be entitled to share in J. R. Boyd, Jr.\u2019s estate pursuant to \u00a7 49-12, defendant Boyd must present evidence that he was \u201cborn out of wedlock.\u201d \u201c[T]he phrase, \u2018born out of wedlock,\u2019 should refer \u2018to the status of the parents of the child in relation to each other.\u2019 \u2018A child born to a married woman, but begotten by one other than her husband, is a child \u201cborn out of wedlock\u201d Matter of Legitimation of Locklear by Jones, 314 N.C. 412, 418, 334 S.E.2d 46, 50 (1985) (citations omitted). In order to show that he was born out of wedlock, defendant Boyd must rebut the presumption recognized by North Carolina law that the child of a married woman is her husband\u2019s child. See Eubanks v. Eubanks, 273 N.C. 189, 197, 159 S.E.2d 562 (1968).\nIn Wright v. Wright, 281 N.C. 159, 188 S.E.2d 317 (1972), the North Carolina Supreme Court recognized the admissibility of blood-grouping tests to rebut the presumption. The Court first determined that language in the Eubanks case did not prohibit the introduction of blood-grouping tests.\nThe opinion in Eubanks contains this statement: \u2018If there was access, there is a conclusive presumption that the child was lawfully begotten in wedlock.\u2019 Taken literally and out of context, the quoted statement would disallow evidence even of impotency or physical or racial differences to rebut the presumption. However, the topic sentence of the paragraph in which the above statement is found demonstrates the real rationale of the rule: \u2018When a child is born in wedlock, the law presumes it to be legitimate, and this presumption can be rebutted only by facts and circumstances which show that the husband could not have been the father, as that he was impotent or could not have had access to his wife.\u2019 ([Their] italics.) Impotency and nonaccess are set out therein as examples of types of evidence that would \u2018show that the husband could not have been the father.\u2019 Since the results of blood-grouping tests would be significant only if they tended to show that defendant herein could not have been the father, we find nothing in Eubanks that would preclude their admission in evidence.\nId. at 171-72, 188 S.E.2d at 325 (citations omitted) (emphasis in original). The Court further reasoned that\n[p]rior to the discovery and perfection of the blood-grouping test, the only kinds of evidence which showed to even an approximate certainty that a husband was not the father of his wife\u2019s child were evidence of impotency, racial or other distinctive physical differences, or nonaccess during the probable time of conception. Although we continue to recognize its primary importance in preserving the status of legitimacy of children born in wedlock, this presumption must give way before dependable evidence to the contrary. Blood-grouping tests which show that a man cannot be the father of a child are perhaps the most dependable evidence we have known.\nId. at 172, 188 S.E.2d at 325-26 (emphasis added).\nFollowing the reasoning in Wright, we conclude that if a proper foundation is laid, DNA sampling may be admissible as \u201cdependable evidence to the contrary\u201d to rebut the presumption that a child born of a married woman is her husband\u2019s child. The legitimation statutes and case law contemplate the advancement of scientific techniques. Reliable direct evidence that the mother\u2019s husband is not the father of a child cannot be ignored. The North Carolina Supreme Court has recognized that DNA profile testing is generally admissible as an established technique considered to be reliable within the scientific community. See State v. Pennington, 327 N.C. 89, 101, 393 S.E.2d 847, 854 (1990).\nIn the case below, if the trial court finds the DNA sampling results admissible, the results may be used to show that J. R. Boyd, Jr., and not Silas Armistead Jones was defendant Boyd\u2019s father, thereby rebutting the presumption and simultaneously offering evidence that defendant Boyd was \u201cborn out of wedlock\u201d within the meaning of N.C. Gen. Stat. \u00a7 49-12. Defendant Boyd then could present further evidence that he was legitimated pursuant to \u00a7 49-12 when his mother later married J. R. Boyd, Jr. Likewise, if the DNA testing yields evidence that J. R. Boyd, Jr., was not the father of defendant, the evidence would be admissible for that purpose. Accordingly, we conclude on the facts presented in this case that the trial court did not err in permitting the exhumation of the corpse of J. R. Boyd, Jr., for purposes of performing DNA sampling. The trial court correctly concluded that the information sought was reasonably calculated to lead to admissible evidence and that defendant Boyd had shown good cause to exhume the body as required by N.C. Gen. Stat. \u00a7 130A-390(b) (Cum. Supp. 1991).\nAppellants next argue that if the exhumation is permitted in this case, the courts will be flooded with petitions for exhumations from would-be heirs. That argument has no merit against the facts below. Defendant Boyd presented substantial evidence to the trial court to support his claim that he is indeed J. R. Boyd, Jr.\u2019s son. The evidence includes, but is not limited to, the following: Defendant Boyd was born in September 1936. In her divorce complaint, Mary Kirkpatrick stated that she had lived apart from Silas Jones since November 1935. The complaint made no mention of children born of the marriage. Mary married J. R. Boyd, Jr., in December 1940. When Mary was unable to care for her son (defendant Boyd) because of health problems, Bessie and Daisy Boyd (sisters to J. R. Boyd, Jr.) took care of defendant Boyd and raised him in J. R. Boyd, Sr.\u2019s home. In 1942, J. R. Boyd, Sr., executed a will in which he made \u201cprovision for the education of Dicky Boyd, the son of my son, James R. Boyd, Jr. and Mary Kirkpatrick Boyd.\u201d In 1958, defendant Boyd changed his name from William Algernon Kirkpatrick to William Richard Boyd. In applications for letters testamentary in the estates of Bessie and Daisy Boyd submitted in 1968 and 1977 respectively, J. R. Boyd, Jr., was listed as \u201cbrother\u201d and defendant Boyd was listed as \u201cnephew.\u201d The Haywood County Clerk of Superior Court initially appointed defendant Boyd as the administrator of J. R. Boyd, Jr.\u2019s estate. Given this substantial evidence, we do not believe our ruling today will engender the filing of unnecessary meritless claims. To the contrary, in those cases, such as the one below, where much evidence of paternity already exists, the \u201cfloodgate of litigation\u201d argument should not be allowed to deter the court from its search for the truth.\nLastly, appellants contend the trial court\u2019s order is in error because the findings of fact can be construed to be binding as to ultimate issues yet to be decided in the case. Our reading of the record and the order in question leads us to the conclusion that the contested findings were made solely for the purpose of ruling on the exhumation request. Nonetheless, to prevent the possibility of unfairness or confusion, we hold that Judge Beal\u2019s findings are applicable to the exhumation issue only and are not binding on any subsequent factfinder on any other issue.\nLastly, we dissolve the stay filed by Judge Hyatt on 2 July 1991. As aptly pointed out by defendant Boyd, in a motion filed in this court, further delay in exhuming the body to obtain the requested samples will reduce the likelihood of obtaining satisfactory tissue samples because of the perishable nature of the corpse.\nThe order below is affirmed, and the stay is dissolved.\nAffirmed.\nJudges JOHNSON and LEWIS concur.", "type": "majority", "author": "COZORT, Judge." } ], "attorneys": [ "McLean & Dickson, P.A., by Russell L. McLean III; and Westall, Gray, Kimel & Connolly, P.A., by Jack W. Westall for appellants.", "Brown, Ward, Haynes, Griffin & Seago, P.A., by Randal Seago for appellee William Richard Boyd, Sr." ], "corrections": "", "head_matter": "CAROLINE BATCHELDOR, TOM SMITH, JAMES B. SMITH, JOHN B. SMITH, ALLEN SMITH, MARION C. SMITH, and HARRIET SMITH ANISOWICZ, Plaintiffs v. WILLIAM RICHARD BOYD, SR., T. MICHAEL JORDAN, Successor Administrator of the Estate of J. R. BOYD, JR., BARBARA BURGIN, TOMMY G. BOYD, JR., CAROLYN CLAYTON, Executrix of the Estate of Henry Clayton, and ROBERT M. CHAFIN and JOHN LYNDON CHAFIN, Co-Executors of the Estate of Robert Chafin, Defendants\nNo. 9130SC1285\n(Filed 15 December 1992)\nEvidence and Witnesses \u00a7 2211 (NCI4th); Parent and Child \u00a7 1.1 (NCI3d)\u2014 right to inherit \u2014legitimation \u2014DNA testing \u2014 exhumation order\nThe trial court did not err in an action to determine paternity and inheritance rights by permitting the exhumation of the corpse of J. R. Boyd, Jr. for purposes of performing DNA sampling where the court correctly concluded that the information sought was reasonably calculated to lead to admissible evidence and that defendant Boyd had shown good cause to exhume the body as required by N.C.G.S. \u00a7 130A-390(b). If a proper foundation is laid, DNA sampling may be admissible as \u201cdependable evidence to the contrary\u201d to rebut the presumption that a child born of a married woman is her husband\u2019s child. This ruling will not engender the filing of unnecessary meritless claims, given the substantial evidence presented by defendant Boyd supporting the claim of paternity, and the findings of the trial court on the motion seeking exhumation are applicable to the exhumation only and are not binding on any other issue.\nAm Jur 2d, Bastards \u00a7 19; Dead Bodies \u00a7\u00a7 74-76; Evidence \u00a7\u00a7 367, 825, 1104.\nAdmissibility of DNA identification evidence. 84 ALR4th 313.\nAppeal by plaintiffs and defendants Barbara Burgin, Tommy G. Boyd, Jr., Carolyn Clayton, Robert M. Chafin and John Lyndon Chafin from order entered 19 June 1991 by Judge Beverly T. Beal in Haywood County Superior Court. Heard in the Court of Appeals 12 November 1992.\nMcLean & Dickson, P.A., by Russell L. McLean III; and Westall, Gray, Kimel & Connolly, P.A., by Jack W. Westall for appellants.\nBrown, Ward, Haynes, Griffin & Seago, P.A., by Randal Seago for appellee William Richard Boyd, Sr." }, "file_name": "0275-01", "first_page_order": 303, "last_page_order": 310 }