Allen v. Harvey

• Decision Date: 29 June 1978
• Citation: 568 S.W.2d 829
• Parties: David Lee ALLEN, Petitioner, v. Purtie HARVEY et al., and Waverly Housing Authority, Respondents.
• Court: Tennessee Supreme Court

Page 829

568 S.W.2d 829

David Lee ALLEN, Petitioner, v. Purtie HARVEY et al., and Waverly Housing Authority, Respondents.

Supreme Court of Tennessee.

June 29, 1978.

Mark H. Collier, Waverly, Claude Callicott, Nashville, for petitioner.

John Lee Williams, Porch, Peeler & Williams, Noble L. Freeman, Waverly, Robert L. Littleton, Dickson, for respondents.

OPINION

BROCK, Justice.

This is an eminent domain proceeding in which no question is raised as to the right to condemn or the amount of compensation. The sole question is who is entitled to receive the $11,300.00 paid into court as damages for the taking of the land. Specifically, we must decide whether a child born out of wedlock may inherit from and through his father. The trial court concluded that he could not and the Court of Appeals affirmed. We granted certiorari.

The property in question consists of three tracts of land in Humphreys County taken by the plaintiff in 1971 for urban renewal, pursuant to authority granted by Chapters 8 through 11 of Title 13 of Tennessee Code Annotated. One of the tracts of land belonged to Boyd Allen who had two children, Louis Allen and Mary Francis Marable. Louis died in a work-related accident in 1942. His father died at some later date but before the death of his daughter who owned the two remaining tracts of land taken by the housing authority. Mary Frances, who had no children, apparently died shortly before the property in question was condemned. ¹ All three died intestate.

In its suit condemning the three tracts of land, the Waverly Housing Authority stated that it had been "unable to ascertain exactly who were the lawful heirs of the late Mary Frances Marable." Five first cousins and an uncle of the deceased were listed as possible heirs-at-law. Plaintiff also stated that "one David Lee Allen may be some relation, adopted or otherwise, to the late Mrs. Marable. It is believed that he is incompetent." In answer, the cousins of Mrs. Marable accepted the valuation of the property assessed by the jury of view, stated that they were unaware of the whereabouts of Mrs. Marable's uncle, and further stated that they believed "that David Lee Allen was the son of Loui(e) (or Louis) Allen, the deceased brother of Mary Frances Marable, but (did) not believe that said Louie Allen was married to the mother of David Lee Allen, (and did) not know if he was ever adopted by Louie Allen."

The trial judge appointed a guardian Ad litem for David Lee Allen, for Mrs. Marable's uncle, and for any unknown heirs of the late Mary Frances Marable.

Three years later, in 1974, David Lee Allen by his retained counsel filed an answer to the original complaint, denying that he was incompetent and also denying that the cousins of Mrs. Marable were entitled to inherit from her since, under our laws of descent and distribution, he alone was her lawful heir. Concurrently, Allen filed a cross-complaint for a declaratory judgment that he was the son of Louis Allen and that, on the death of Mary Frances Marable, he was entitled to inherit from her under our laws of intestate succession.

The evidence considered by the trial judge showed that Louis Allen married a woman named Jenny Mays in 1924 and that, while they lived together only two or three years before separating, they had never divorced. Sometime prior to his death in 1942, Louis began to live with Mary Lou Howard. Mary Lou gave birth to a son, David Lee Allen, whom Louis claimed as his own child and supported until his death some six months after the child was born. David's birth certificate showed Louis Allen to be his father and also showed that his parents were married. In an earlier court proceeding awarding workmen's compensation benefits to David after Louis's death, the doctor who delivered David testified that the information recorded on the child's birth certificate had been supplied by both parents.

After his son's death, Boyd Allen took Mary Lou and her young son into his home for a short while until Mary Lou married another man. At that time or shortly thereafter, David was taken into the home of his aunt, Mary Frances Marable. In 1955 Mrs. Marable applied for letters of guardianship for David, stating to the county court clerk that David was "one of her kin" and "a minor heir in her family" and that she "felt obligated to take care of him." The guardian bond referred to David as a "minor heir" of Mrs. Marable. David lived with his aunt until 1956 when he was committed to the Vocational School for Colored Boys. His commitment papers stated that David was the son of Louis Allen and Mary Lou Howard and that he had lived with his aunt, Mary Francis Marable, for most of his life.

From all of the evidence the trial judge concluded that "the record fully supports the claim that David L. Allen is the natural son of Louis Allen but the evidence is that his parents were never married . . . ." He therefore concluded that, under our law, David "would not have inherited property from his father and therefore did not inherit the property in question from his natural aunt under the statutes of desent (sic) and distribution," and ordered that further proof be taken to determine the next of kin of Mary Frances Marable.

David Lee Allen appealed the trial court's decision to the Court of Appeals on several legal theories, including denial of the equal protection of the laws guaranteed by the Fourteenth Amendment of the United States Constitution as well as by Article I, Section 8 and Article XI, Section 8 of the Tennessee Constitution. The Court of Appeals, however, affirmed the findings and conclusions of the trial court and we granted Allen's petition for certiorari.

At common law a child born out of wedlock ² was Nullius filius the child of nobody. Without parents in the eyes of the law, it followed that the child had no right to inherit from either of his natural parents. He was considered to have no "heritable blood." Not only was the child incapable of inheritance but he could have no heirs except those of his own body. J. Kent, 2 Commentaries on American Law 212 (9th ed. 1858); 5 American Law of Property § 22.33 (A. J. Casner ed. 1952). See Brown v. Kerby, 28 Tenn. 460 (1848); R. Pritchard, 2 The Law of Wills and Administration of Estates § 779 (H. Phillips ed. 1955). See generally H. Krause, Illegitimacy: Law and Social Policy (1971).

In this country, however, state legislatures gradually enacted statutes recognizing children born out of wedlock as children of their mother, thus ameliorating somewhat the harsh rule of the common law. See C. Vernier, American Family Laws § 249, Table CXVIII (1936).

As early as 1805 our statutory law provided for judicial Legitimation of a child born out of wedlock, ³ a proceeding "remov(ing) the taint of bastardy, and giv(ing) such children the same inheritable blood as if they had been born legitimately." Scott v. Wilson, 110 Tenn. 175, 179, 75 S.W. 1091, 1092 (1902). The common-law rule precluding inheritance by "illegitimates," however, was not altered until 1819 when it was provided:

"That where any woman shall die intestate, leaving natural born child or children, and no legitimate child or children, such natural born child or children, shall take by the general rules of descent and distribution, the estate real and personal of his, her or their mother, and should either of such children die intestate without child, his or her brothers and sisters shall in like manner take his or her estate . . . ." Public Acts of 1819, ch. 13.

Under this Act, a child born out of wedlock could inherit from his or her mother provided the mother had no "legitimate" child or children. Turnmire v. Mayes, 121 Tenn. 45, 114 S.W. 478 (1908). Thus, the 1819 Act "conferr(ed) inheritable blood upon Illegitimates . . . to a limited degree." Id. at 53, 114 S.W. at 480 (emphasis added.)

Chapter 39 of the Public Acts of 1851-52 provided statutory heirs other than those of his own body for a person born out of wedlock who died intestate. If such person had no child or children, the statute provided that both real and personal property passed to the surviving wife or husband and, if no spouse survived, to the mother. If the mother was dead, the estate passed to the brothers and sisters of the decedent by his or her mother or to their descendants. ⁴

Presented with a situation where a child born out of wedlock died intestate without issue but leaving surviving half brothers and sisters (born to the same mother in lawful wedlock), our Supreme Court held, in Riley v. Byrd, 40 Tenn. 20 (1859), that the half sisters and brothers born in wedlock could share in the estate of the half brother born out of wedlock.

In Woodward v. Duncan, 41 Tenn. 562 (1860), the Court held, however, that half sisters born out of wedlock could not share in the inheritance of their childless half brother along with his full sisters who were born, as was the decedent, in lawful wedlock. The Court stated: "The common law-rule must prevail as to that, as there has been no change by any Statute. We are not disposed to go beyond the Legislature in removing the checks upon illicit intercourse, and the stigma from bastardy. The cause of good morals forbids it." Id. at 564.

As the Court later noted: "(t)hese two cases illustrated the inequality which was worked under this act." Laughlin v. Johnson, 102 Tenn. 455, 459, 52 S.W. 816, 817 (1899).

For some reason lost to history, the salient features of the 1819 Act were not brought forward into the 1858 Code and thus, by this omission, were repealed. See Dennis v. Dennis, 105 Tenn. 86, 58 S.W. 284 (1900); Kelly v. Jackson, 2 Shan.Cas. 198 (1877). See generally Williams, A History of Codification in Tennessee, 10 Tenn.L.Rev. 61, 69-78 (1932). In 1867, however, "a more advanced step in effectuating the general design to give ample relief to this unfortunate class of persons," Laughlin at 458, 52 S.W. at 817, took the place of the 1819 Act:

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