{ "id": 11914151, "name": "CAROLINA 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., HENRY CLAYTON, AND ROBERT M. CHAFIN, Defendants", "name_abbreviation": "Batcheldor v. Boyd", "decision_date": "1995-06-06", "docket_number": "No. 9430SC113", "first_page": "204", "last_page": "209", "citations": [ { "type": "official", "cite": "119 N.C. App. 204" } ], "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": "43 ALR4th 579", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "80 ALR3d 219", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "389 S.E.2d 803", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "opinion_index": 0 }, { "cite": "326 N.C. 470", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5304621 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0470-01" ] }, { "cite": "378 S.E.2d 566", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "93 N.C. App. 537", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528231 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc-app/93/0537-01" ] }, { "cite": "416 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "331 N.C. 374", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2501442 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/331/0374-01" ] }, { "cite": "408 S.E.2d 859", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "104 N.C. App. 142", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520576 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc-app/104/0142-01" ] }, { "cite": "275 S.E.2d 424", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "427" } ], "opinion_index": 0 }, { "cite": "302 N.C. 375", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565783 ], "year": 1981, "pin_cites": [ { "page": "380" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0375-01" ] }, { "cite": "131 S.E.2d 875", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "260 N.C. 22", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572922 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/260/0022-01" ] }, { "cite": "334 S.E.2d 46", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "50" } ], "opinion_index": 0 }, { "cite": "314 N.C. 412", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4685603 ], "year": 1985, "pin_cites": [ { "page": "418" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0412-01" ] }, { "cite": "188 S.E.2d 317", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "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": "426 S.E.2d 700", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "333 N.C. 254", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2549314, 2546630, 2549526, 2549465, 2547486 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/333/0254-02", "/nc/333/0254-05", "/nc/333/0254-04", "/nc/333/0254-03", "/nc/333/0254-01" ] }, { "cite": "423 S.E.2d 810", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1992, "pin_cites": [ { "page": "813" } ], "opinion_index": 0 }, { "cite": "108 N.C. App. 275", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523762 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/nc-app/108/0275-01" ] }, { "cite": "121 L.E.2d 53", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1992, "opinion_index": 0 }, { "cite": "331 N.C. 117", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498177, 2499816, 2501001, 2498421, 2499612 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/331/0117-01", "/nc/331/0117-05", "/nc/331/0117-02", "/nc/331/0117-04", "/nc/331/0117-03" ] }, { "cite": "411 S.E.2d 184", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "185" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 746", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524039 ], "year": 1991, "pin_cites": [ { "page": "749" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0746-01" ] } ], "analysis": { "cardinality": 651, "char_count": 13071, "ocr_confidence": 0.751, "pagerank": { "raw": 2.1813549812920936e-07, "percentile": 0.7724135654240846 }, "sha256": "4161227dd333c508f312e53021ffbc17156b5aa30c6ddc1ad017c1b91656b873", "simhash": "1:83688d06749f21b2", "word_count": 2156 }, "last_updated": "2023-07-14T17:09:59.579385+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges COZORT and McGEE concur." ], "parties": [ "CAROLINA 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., HENRY CLAYTON, AND ROBERT M. CHAFIN, Defendants" ], "opinions": [ { "text": "JOHNSON, Judge.\nDefendant William Richard Boyd, Sr. was born 16 September 1936 to Mary Kirkpatrick Jones, now deceased. The birth certificate did not identify the father of defendant William Richard Boyd, Sr. a/k/a William Algermon Kirkpatrick.\nAt the time of the birth of defendant William Richard Boyd, Sr. (hereinafter defendant), Mary Kirkpatrick was married to, but separated from Silas Armistead Jones. Mary Kirkpatrick and Silas Jones were married in August 1935 and lived as husband and wife until November 1935. The pleadings denote that Mary Kirkpatrick and Silas Jones lived continuously separate and apart for two years after the separation. In 1938, Mary Kirkpatrick was granted a divorce from Silas Jones.\nOn 22 December 1940, the intestate decedent James R. Boyd, Jr. married Mary Kirkpatrick in Texas. At that time, James R. Boyd, Jr. and defendant were residents of Haywood County, North Carolina. The couple divorced in May 1948 and stated in court documents that there were no children born of the marriage.\nSoon after the birth of defendant, intestate decedent claimed him as his son. Defendant William Richard Boyd, Sr. was identified as the son of James R. Boyd, Jr. in a number of documents: the Boyd family bible; the will of James R. Boyd, Sr., which makes a provision for defendant William Richard Boyd, Sr., and refers to him as \u201cthe son of my son, James R. Boyd, Jr. and Mary Kirkpatrick Boyd\u201d; Haywood County hospital records from the 1940\u2019s; newspaper articles from the \u201csocial\u201d section of the local paper and wedding announcements; and applications for probate and letters testamentary of two of decedent\u2019s sisters identify defendant as their \u201cnephew.\u201d Additionally, defendant obtained DNA comparison parentage testing as to himself and James R. Boyd, Jr. from two labs. Independently, each lab produced test results showing that to a greater than 99.99% probability, James R. Boyd, Jr. was the father of defendant. Defendant also called seven witnesses from the Boyd family and from the community of Waynesville as to the issue of \u201creputation\u201d of James R. Boyd, Jr. as the father of defendant.\nThere is evidence which indicates that during the last years of the life of the intestate decedent, defendant lived with the intestate decedent in the Boyd homeplace in Haywood County, North Carolina.\nPlaintiffs assign as error the following: that the trial court erred in failing to grant plaintiffs\u2019 and aligned defendants\u2019 Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted; that the trial court erred in admitting DNA evidence from J.R. Boyd, Jr. over objection because: (a) the evidence was irrelevant, and (b) it was prejudicial under Rule 403 of the Rules of Evidence; that the trial court erred in the denial of plaintiffs\u2019 and aligned defendants\u2019 motion for directed verdict under Rule 50 of the Rules of Civil Procedure at the close of defendant\u2019s evidence and at the close of all of the evidence; that the trial court erred in admitting testamentary evidence of the reputation in the community of the relationship of decedent and defendant during the 1940\u2019s; that the trial court committed reversible error in submitting the jury charge on the first issue by directing the jury that they may be permitted to find a child born to a married woman is the child of her husband and that the jury could infer that her husband was the father of the child but was not compelled to do so; that the trial court erred in failing to submit the proposed issues and jury instructions as proffered by plaintiffs and aligned defendants; that the trial court erred in awarding defendant attorney\u2019s fees based upon his contract of employment with his client; and finally, that the trial court erred in entering as a declaratory judgment an order that defendant is the legitimized son and sole heir of intestate decedent and entitled to inherit the entire estate.\nNotwithstanding plaintiffs\u2019 numerous assignments of error, the preeminent issue is whether competent evidence was presented to the court to show that defendant was entitled to inherit under the intestacy statutes.\nThis Court has stated that \u201c[ajbsent a statute to the contrary, illegitimate children have no right to inherit from their putative fathers.\u201d Helms v. Young-Woodard, 104 N.C. App. 746, 749, 411 S.E.2d 184, 185 (1991), disc. review denied, 331 N.C. 117, cert. denied, \u2014 U.S. \u2014, 121 L.E.2d 53 (1992). Ways in which a child may be legitimized in North Carolina include:\n1) verified petition filed with the superior court by the putative father, 2) subsequent marriage of the parents, or 3) civil action to establish paternity. N.C.G.S. \u00a7 49-10 through 49-14 (1984). Illegitimate children may inherit from their putative fathers if they have been legitimated by one of the above or if paternity has been established in an action for criminal non-support. N.C.G.S. \u00a7 29-19(b)(1984).\nId. at 749-50.\nDefendant William Richard Boyd, Sr. alleges that he was legitimized as the child of James R. Boyd, Jr. by the subsequent marriage of his parents \u2014 mother, Mary Kirkpatrick Jones, and the intestate decedent, James R. Boyd, Jr.; and that pursuant to North Carolina General Statutes \u00a7 49-12 (1984), he is legally legitimized as the child of James R. Boyd, Jr. and is entitled to be considered as the child of James R. Boyd, Jr. for purposes of intestate succession. We agree.\nOur Court has noted that DNA testing results may be used to rebut the presumption that a child bom to a married woman is her husband\u2019s child. Batcheldor v. Boyd, 108 N.C. App. 275, 423 S.E.2d 810 (1992), disc. review denied, 333 N.C. 254, 426 S.E.2d 700 (1993). See also Wright v. Wright, 281 N.C 159, 188 S.E.2d 317 (1972). Additionally, our Court has noted that testing results may be used to establish that the phrase \u201cborn out of wedlock\u201d includes a child whose mother was married to a man not the father of the child. Batcheldor, 108 N.C. App. 275, 423 S.E.2d 810. \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. . . Id. at 279, 423 S.E.2d at 813; (quoting In re Legitimation of Locklear, 314 N.C. 412, 418, 334 S.E.2d 46, 50 (1985)). Thus, defendant has successfully rebutted the presumption that a child of a married woman is her husband\u2019s child and shown that he was a \u201cchild born out of wedlock\u201d as required by the statutes. Accordingly, because defendant was legitimized by the subsequent marriage of his mother to his reputed father, he is sole heir to the estate of James R. Boyd, Jr. by the intestacy statutes.\nPlaintiffs\u2019 arguments that North Carolina General Statutes \u00a7\u00a7 49-14 (Cum. Supp. 1994), 49-12 and 29-18 (1984) are applicable to defendant\u2019s claim of legitimacy is misplaced. The evidence shows that the statutory requirements in accordance with North Carolina General Statutes \u00a7 49-12 for purposes of inheriting from a putative father have been met.\nWe now turn to whether the trial court erred in awarding attorney\u2019s fees to counsel for defendant. The trial court pursuant to North Carolina General Statutes \u00a7 6-19 (1986) allowed defendant to recover costs and attorney\u2019s fees against the estate, allowed plaintiffs to recover costs including attorney\u2019s fees against the estate, and allowed the aligned defendants to recover costs and attorney\u2019s fees against the estate.\nNorth Carolina General Statutes \u00a7 6-20 (1986) notes that a court in its discretion may tax costs including attorney\u2019s fees if they are just and equitable. Trust Co. v. Dodson, 260 N.C. 22, 131 S.E.2d 875 (1963). Where questions regarding inheritance arise regarding the estate of the deceased, a court may award attorney\u2019s fees if legitimate claims exist. \u201cThe statute does not require the court to award attorneys\u2019 fees in such cases but clearly authorizes th\u00e9 court to do so. It is a matter in the discretion of the court, both as to whether to allow fees and the amount of such fees.\u201d In re Ridge, 302 N.C. 375, 380, 275 S.E.2d 424, 427 (1981).\nBecause this action is under intestate succession and deals with inheritance rights, North Carolina General Statutes \u00a7 6-21(2) (1986) concerning caveators is relevant. North Carolina General Statutes \u00a7 6-21(2) provides:\nCosts in the following matters shall be taxed against either party, or apportioned among the parties, in the discretion of the court:\n(2) Caveats to wills and any action or proceeding which may require the construction of any will or trust agreement, or fix the rights and duties of parties thereunder; provided, that in any caveat proceeding under this subdivision, the court shall allow attorneys\u2019 fees for the attorneys of the caveators only if it finds that the proceeding has substantial merit.\nOur Court has held that attorney\u2019s fees were properly taxed as costs so long as the claims had substantial merit and success on the merits of the claims was not a requirement. In re Estate of Tucci, 104 N.C. App. 142, 408 S.E.2d 859 (1991); Dyer v. State, 331 N.C. 374, 416 S.E.2d 1 (1992).\nHaving reviewed the record, defendant\u2019s claim did have substantial merit and was successful. In the instant case, the trial court found that defendant\u2019s attorney had spent a substantial amount of time on the case, and provided services of a complex nature; thus, the trial court\u2019s award of attorney\u2019s fees in this case was proper. See Barker v. Agee, 93 N.C. App. 537, 378 S.E.2d 566 (1989), aff\u2019d, in part, rev\u2019d in part, 326 N.C. 470, 389 S.E.2d 803 (1990).\nPlaintiffs\u2019 and aligned defendants\u2019 claims had substantial merit even though they did not have success on the merits. The trial court may at its discretion award attorney\u2019s fees even to unsuccessful-caveators. Id. And since substantial merit under the statute does not require success on the merits, the trial court did not abuse its discretion in awarding attorney\u2019s fees to plaintiffs and aligned defendants.\nIn light of our holding, we find it unnecessary to address plaintiffs\u2019 and aligned defendants\u2019 remaining assignments of error. For the reasons discussed herein, we find no error.\nNo error.\nJudges COZORT and McGEE concur.", "type": "majority", "author": "JOHNSON, Judge." } ], "attorneys": [ "Westall, Gray & Connolly, P.A., by Jack W. Westall, Jr., for plaintiffs-appellants.", "Russell L. McLean, III for defendants-appellants.", "Brown, Ward, Haynes, Griffin & Seago, RA., by Randal Seago, for defendant-appellee William Richard Boyd, Sr." ], "corrections": "", "head_matter": "CAROLINA 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., HENRY CLAYTON, AND ROBERT M. CHAFIN, Defendants\nNo. 9430SC113\n(Filed 6 June 1995)\n1. Evidence and Witnesses \u00a7 2211 (NCI4th); Illegitimate Children \u00a7 47 (NCI4th)\u2014 presumption of paternity by husband \u2014 rebuttal by DNA evidence \u2014 legitimation by marriage\nDNA test results showing a greater than 99.99% probability that defendant\u2019s putative father was his actual father were sufficient to rebut the presumption that he was the child of the man married to his mother at the time of his birth and thus showed that he was a \u201cchild born out of wedlock,\u201d and defendant was legitimized by the subsequent marriage of his mother and putative father and is entitled to be considered as the child of his putative father for intestate succession purposes.\nAm Jur 2d, Bastards \u00a7\u00a7 49, 50; Expert and Opinion Evidence \u00a7\u00a7 278-282, 300, 310, 316.\nLegitimation by marriage to natural father of child born during mother\u2019s marriage to another. 80 ALR3d 219.\nAdmissibility and weight of blood-grouping tests in disputed paternity cases. 43 ALR4th 579.\nAdmissibility of DNA identification evidence. 84 ALR4th 313.\n2. Costs \u00a7 28 (NCI4th)\u2014 determination of heir \u2014 allowance of costs and attorney fees against estate\nIn a declaratory judgment action to determine whether defendant is the legitimized son and sole heir of an intestate decedent, the trial court did not err by allowing defendant to recover costs and attorney fees from the estate pursuant to N.C.G.S. \u00a7 6-19 where defendant\u2019s claim had substantial merit and was successful. Furthermore, the trial court did not err by allowing plaintiffs and the aligned defendants to recover costs and attorney fees from the estate even though they were not successful on the merits where their claim had substantial merit.\nAm Jur 2d, Costs \u00a7\u00a7 72-86.\nAppeal by plaintiffs and the aligned defendants from a declaratory judgment entered on 23 July 1993 by Judge Julia V. Jones in Haywood County Superior Court in favor of defendant William Richard Boyd, Sr. A post-judgment hearing was held by Judge Jones and fees were awarded to counsel for plaintiffs and counsel for the aligned defendants from which defendant William Richard Boyd, Sr. appealed. Fees were also awarded to counsel for defendant, from which plaintiffs and aligned defendants appealed. Heard in the Court of Appeals 6 April 1995.\nWestall, Gray & Connolly, P.A., by Jack W. Westall, Jr., for plaintiffs-appellants.\nRussell L. McLean, III for defendants-appellants.\nBrown, Ward, Haynes, Griffin & Seago, RA., by Randal Seago, for defendant-appellee William Richard Boyd, Sr." }, "file_name": "0204-01", "first_page_order": 238, "last_page_order": 243 }