Cotton v. Terry
Decision Date | 26 September 1986 |
Citation | 495 So.2d 1077 |
Parties | John COTTON, Jr. v. Nora Jane TERRY. 84-824. |
Court | Alabama Supreme Court |
Ronald L. Spratt, Birmingham, for appellant.
John Oliver Cameron, Montgomery, for appellee.
The question in this appeal is whether Code of 1975, § 43-8-48(2)b., allows paternity to be proved by an illegitimate child after the death of an intestate father. We hold that the statute does allow paternity to be proven after the father's death.
The appellant, John Cotton, Jr., is the legitimate son of John Cotton, Sr. Cotton, Jr., brought this suit to quiet title to 160 acres of land located in Montgomery County and owned by Cotton, Sr., at the time of his death. Cotton, Sr., died intestate in 1973 and his estate was never probated.
Cotton, Jr., filed this suit in November 1984. His first complaint prayed for a sale of the land for division of the proceeds, alleging that he owned a one-half interest in it and that the defendant, Nora Jane Terry, owned a one-half interest. In December 1984, however, Cotton, Jr., amended his complaint, deleting the request for a sale for division, and, instead, he sought to quiet title, claiming the land as sole owner.
In due course, an ore tenus hearing was held by the trial court without a jury. By agreement of the parties, the court proceeded to determine whether the defendant, Nora Jane Terry, might inherit under the estate of Cotton, Sr., as his illegitimate child. Following the hearing, the trial court held that under § 43-8-48(2)b. the defendant had established paternity by clear and convincing evidence and decreed her ownership of a one-half interest in the Cotton, Sr., land.
The appellant, Cotton, Jr., contends that the trial court erred, in light of Murphy v. Murphy, 421 So.2d 1285 (Ala.Civ.App.1982). He also maintains that the trial court had no "jurisdiction" to decide the defendant's interest. We find both arguments untenable.
Prior to the adoption of § 43-8-48(2)b., the law of legitimation was as stated in Everage v. Gibson, 372 So.2d 829, 833 (Ala.1979), cert. denied, 445 U.S. 931, 100 S.Ct. 1322, 63 L.Ed.2d 765 (1980):
However, in 1982, the legislature adopted the Alabama version of the Uniform Probate Code, which became effective on January 1, 1983. Ala.Acts 1982, Act 82-399, pp. 578-603. Part of that uniform code, now codified at § 43-8-48, Code of 1975, in its pertinent part, states:
Thus, it may be seen from the plain language of the statute that paternity of an illegitimate child may be established after the death of the father through an adjudication supported by clear and convincing evidence. When so established, such a child may inherit from the father through intestate succession.
The commentary following § 43-8-48 explains:
(See State v. Martin, 437 So.2d 1311 (Ala.Civ.App.1983), and Abrams v. Wheeler, 468 So.2d 126 (Ala.1985), holding the two-year limitations period in Code of 1975, § 26-12-7, violative of the Fourteenth Amendment to the United States Constitution.)
Contrary to the interpretation given to (2)b. above by the authors of the commentary, however, the literal language of the section ultimately enacted by the legislature is as the trial court applied it and needs no interpretation.
The record supports the trial court's finding of clear and convincing evidence that Cotton, Sr., was the father of Nora Jane Terry. Cotton, Jr., himself testified so on direct examination:
And, Cotton, Jr., testified on cross-examination:
Also, a newspaper obituary concerning Cotton, Sr., was introduced into evidence identifying Nora Jane Terry as a surviving daughter. Cotton, Jr., testified:
Cotton, Jr., acknowledged that Nora went by the name "Cotton" before she married:
Walter Bivens, a witness for the plaintiff, testified that his neighbor, Cotton, Sr., had an "outside" daughter:
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...it applied current Alabama law, and concluded Stone was an heir entitled to inherit. Id. at 367 & n. 23. See Cotton v. Terry, 495 So.2d 1077, 1079 (Ala.1986) (per curiam) (paternity of illegitimate child may be established after the death of the father if supported by clear and convincing e......
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...analogous standard in cases involving children born out of wedlock trying to establish a claim based on proof of paternity. Cotton v. Terry, 495 So.2d 1077 (Ala.1986); Ivy v. Illinois Cent. Gulf R. Co., 510 So.2d 520 (Miss.1987); Sondra S. v. Jay O., 126 Misc.2d 322, 482 N.Y.S.2d 660 (1984)......
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