BYERLY v. TOLBERT

No. 390.

108 S.E.2d 29 (1959)

250 N.C. 27

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).

Supreme Court of North Carolina.

April 8, 1959.


Attorney(s) appearing for the Case

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

Clyde C. Randolph, Jr., Winston-Salem, for defendant Sandra Louise Tolbert, appellant.

Weston P. Hatfield, Winston-Salem, for defendants Mildred Viola Tolbert, Josephine Annette Tolber, Glenda Sue Tolbert and Jerry Michael Tolbert, appellees.


BOBBITT, Justice.

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 born 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...

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