Bilbrey v. Smithers

• Decision Date: 03 September 1996
• Citation: 937 S.W.2d 803
• Court: Tennessee Supreme Court
• Parties: Blanche BILBREY and Cecil Asberry, Plaintiffs-Appellees, v. Vestel SMITHERS, Defendant-Appellant.

Page 803

937 S.W.2d 803

Blanche BILBREY and Cecil Asberry, Plaintiffs-Appellees, v. Vestel SMITHERS, Defendant-Appellant.

Supreme Court of Tennessee at Nashville.

Sept. 3, 1996.

Phillips M. Smalling, Byrdstown, for Plaintiffs-Appellees.

Onnie L. Winebarger, Byrdstown, for Defendant-Appellant.

OPINION

REID, Justice.

This case presents for review the right of a child born out of wedlock to inherit from his natural father who died prior to the amendment of Tenn.Code Ann. § 31-2-105(a)(2)(B) (Supp.1995) in 1978. The record supports the finding of paternity, but the claimant failed to establish the right to inherit as required by the statute; however, the appellant is estopped to deny the claimant's asserted interest in the decedent father's real property.

THE CASE

S.D. (Sam) Asberry died intestate on June 12, 1966, survived by two legitimate children, Orban Asberry and Blanche Bilbrey, and Cecil Asberry, who was born out of wedlock. Orban Asberry qualified and served as the administrator of his father's estate. The administration of the estate was closed on the 12th day of August, 1968, and the decedent's personalty was distributed equally between Orban Asberry and Blanche Bilbrey. At the time of his father's death, Cecil Asberry made no claim for a share of the personal estate.

No disposition was made of any portion of the real property owned by S.D. (Sam) Asberry until 1983. ¹ In 1983, and again in 1986, portions of the real property were conveyed to the State of Tennessee by warranty deed executed by Orban Asberry, Blanche Bilbrey, and Cecil Asberry. The deeds identified the grantors as "being the only children and heirs at law of S.D. Asberry." The proceeds from the sale of the land were divided equally among Orban Asberry, Blanche Bilbrey, and Cecil Asberry. In 1993, prior to the filing of the complaint in this case, Orban Asberry, Blanche Bilbrey, et vir, and Cecil Asberry, et ux, executed an oil and gas lease of real property owned by S.D. (Sam) Asberry at the time of his death. The record also shows that the proceeds from the sale of timber cut on the land were divided among Orban Asberry, Blanche Bilbrey, and Cecil Asberry.

Orban Asberry died in 1993. He devised all of his property to his stepson, Vestel Smithers.

Soon after Orban Asberry's death, Blanche Bilbrey and Cecil Asberry filed this suit, seeking an adjudication that Blanche Bilbrey, Cecil Asberry, and Vestel Smithers are tenants in common of the real property owned by Sam Asberry at the time of his death and that the land be sold and the proceeds be divided among the parties equally. The parties stipulated that S.D. (Sam) Asberry's paternity of Cecil Asberry could be proven by clear and convincing evidence; however, Smithers disputed the allegation that Cecil Asberry owns any interest in the real property.

The trial court found for the plaintiffs and held that Cecil Asberry by intestate succession became the owner of a one-third undivided interest in his father's real property. The Court of Appeals affirmed.

ANALYSIS

Prior to 1978, a child born out of wedlock could inherit from the natural father only if there had been an adjudication of paternity prior to the death of the father. See Tenn.Code Ann. § 31-206(2) (Supp.1977). That law was changed in 1978 by this Court's decision in Allen v. Harvey, 568 S.W.2d 829 (Tenn.1978), and the subsequent enactment of an amendment to the statute which is presently found at Tenn.Code Ann. § 31-2-105(a)(2)(B) (Supp.1995). ²

In Allen v. Harvey, there had not been an adjudication of paternity prior to the natural father's death. Even though the statute contained no provision at that time for an adjudication of paternity after the death of the father, this Court found "the policy of that Act to be one of sanctioning inheritance if the father-child relationship is clearly established," 568 S.W.2d at 834, and held that paternity for the purpose of "inheritance," could be determined after the death of the father, upon "clear and convincing proof" provided "rights of inheritance have not finally vested." Id. at 835. The Court stated that application of the decision to other cases would be prospective only. Id.

The decision in Allen v. Harvey turned on a finding of clear and convincing proof of paternity. The second condition, "where rights of inheritance have not vested," was not an issue in that case because it was a condemnation proceeding by the State in which the owner of the property died during the pendency of the case. The claimant's right to inherit was dependent upon the determination that he was the child of the owner's deceased brother. Consequently, there could be no claim that "rights of inheritance" had vested, and the issue was not discussed by the Court.

The 1978 amendment to Tenn.Code Ann. § 31-2-105 codified the Court's decision in Allen v. Harvey, that paternity could be established after the death of the father upon clear and convincing proof. However, the statute did not address the second limitation found in Allen v. Harvey, that "rights of inheritance have not finally vested."

In the present case, the Court of Appeals based its decision that Cecil Asberry is entitled to a share of his natural father's property upon Marshall v. Marshall, 670 S.W.2d 213 (Tenn.1984). In Marshall v. Marshall, the Court applied the decision in Allen v. Harvey "retrospectively" and held that a child born out of wedlock could inherit from his intestate father, who had died in 1975 survived by a widow and collateral heirs. Id. at 215. The opinion, filed in 1984, does not discuss the statute or the holding in Allen v. Harvey that the claim will not be allowed to disturb vested rights; nor does it address the time within which the right of inheritance must be asserted, except to find that the "defendants in the instant case have not acted in reliance upon the precedent overruled by Allen ...." Id. Nevertheless, the effect of the Marshall decision was that three and one-half years after the death of the owner of the property, the fee simple title to the property, subject only to the widow's statutory rights, was divested out of the decedent's heirs at law and vested into his son who was born out of wedlock. The decision obviously disturbed vested property rights, despite its focus on "prospective" and "retrospective" applications of the statute.

Consequently, neither the statute nor any opinion of this Court has addressed directly the time within which a child born out of wedlock must assert the right to inherit by virtue of his relationship with his natural father. That issue was raised in the trial court and the Court of Appeals in this case. The trial court ruled that title had not vested in the decedent's legitimate children and, further, that Vestel Smithers was estopped from asserting any statute of limitation. The Court of Appeals utilized a different rationale. In response to Smithers' insistence that title to S.D. (Sam) Asberry's real property had vested in the decedent's legitimate heirs at law immediately upon his death in 1966, that court apparently found that, pursuant to Allen v. Harvey and Marshall v. Marshall, title also vested in Cecil Asberry upon the death of the father, even though there had been no adjudication of paternity. The Court of Appeals did not discuss the statute of limitation or estoppel. The decision by the Court of Appeals that title vested in the claimant upon the death of his father, even though there had been no adjudication of paternity, left unresolved significant issues regarding the ownership of property. Application of the relevant rules of law compels the conclusion that neither the decision of the Court of Appeals nor the trial court is entirely correct. Both courts, as well as this Court in Marshall v. Marshall, ignored the decision in Allen v. Harvey that an adjudication of paternity subsequent to the father's death will not be allowed to disturb vested interests.

Determining the appropriate application of the limitation that vested rights will not be disturbed to the statute allowing paternity to be established after the father's death requires consideration of the law of real property, intestate succession, and equal protection. That consideration properly begins with the applicable statutes. Section 31-2-103(a) provides:

The real property of an intestate decedent shall vest immediately upon death of the decedent in the heirs as provided in § 31-2-104....

Tenn.Code Ann. § 31-2-103(a) (Supp.1995). For purposes of intestate succession, a person born out of wedlock is the child of that person's father if:

The paternity is established by an adjudication before the death of the father or is established thereafter by clear and convincing proof.

Tenn.Code Ann. § 31-2-105(a)(2)(B). Consequently, if there has been an adjudication of paternity prior to the death of the father, the child born out of wedlock inherits by intestate succession as a legitimate child, and title to the decedent's real property vests in that child immediately upon death of the decedent. No further adjudication is necessary to establish the child's right to inherit.

But, according to the statute, where there has been no adjudication of paternity prior to the father's death, paternity can be established only by clear and convincing proof, which, of course, requires a judicial determination subsequent to the death of the father. The only designation in the statute of the time within which that determination can be made is "thereafter," or, in other words, after the father's death. However, "thereafter" cannot be unlimited or uncertain, because, as previously discussed, the right of a child born out of wedlock to inherit cannot be asserted to disturb "rights of inheritance" that have "finally vested." ³ Consequently, it appears that the limitation imposed upon the right of a child born out of wedlock to inherit from the child's natural father, where paternity has not been established...