Estate of Ford, Matter of, 07-58708

• Decision Date: 08 November 1989
• Docket Number: No. 07-58708,07-58708
• Citation: 552 So.2d 1065
• Parties: In the Matter of the ESTATE OF Hattie FORD, Deceased. Clara WOODALL, et al. v. P.L. JOHNSON, et al.
• Court: Mississippi Supreme Court

Page 1065

552 So.2d 1065

In the Matter of the ESTATE OF Hattie FORD, Deceased.

Clara WOODALL, et al. v. P.L. JOHNSON, et al.

No. 07-58708.

Supreme Court of Mississippi.

Nov. 8, 1989.

Ava N. Jackson, Oxford, for appellants.

Ben Barrett Smith, Batesville, for appellees.

Before HAWKINS, P.J., and ROBERTSON and SULLIVAN, JJ.

ROBERTSON, Justice, for the Court:

I.

The kindred of the natural father of a woman born in 1898 but out of wedlock have asserted a claim to inherit from her under our amended statute of descent and distribution. The question is whether the father's kin have shouldered their burden of proving that the father both acknowledged and treated the woman as his daughter and did not refuse or neglect to support her when she was a child.

The Chancery Court found that the kindred claiming to inherit had failed in their burden and the question on appeal is whether the evidence is such that we should intervene. The evidence before us is quite sketchy and, in view of the lapse of time, perhaps necessarily so. Given our limited scope of review on appeal, we may only affirm.

II.

Hattie Ford was born in 1898. Her parents were Andrew McCarty and Pearlie Mackey, who never married. Ford was raised by her mother and maternal grandparents. Hattie Ford married Rayfield Ford who predeceased her. The Fords had no children. Hattie Ford died intestate on October 14, 1986, a resident of the Second Judicial District of Panola County. Her only surviving relatives at the time of her death were several maternal first cousins of the whole-blood and several paternal nieces and nephews of the half-blood.

After Hattie was born, her father, Andrew McCarty, married another woman and had two daughters, Estelle and Iona. Estelle married and became Estelle Sisk and had seven children. Iona married and became Iona Moore and had three children. These ten are Clara Woodall, Euthie Mae Moore, Lela Moore Hickins, James Sisk Hayes Sisk, Robert Lee Sisk, Rosie Sisk, Blanche Andrews, Welthy Mae Sisk, and Ella Mae Sisk Horton. The children of Estelle Sisk and Iona Moore are half-blood nieces and nephews of Hattie Ford. They are the "kindred" of Andrew McCarty within the meaning of Miss.Code Ann. Sec. 91-1-15(3)(d)(i) (Supp.1989), were the claimants below, and are the Appellants here.

Pearlie Mackey, Hattie Ford's mother, had several brothers and sisters who predeceased Ford. These brothers and sisters left eight children who survived Ford. These include P.L. Johnson, Sarah Brassell, Ike Johnson, Hattie Fondren, Ora Ford, John A. Barr, Frances C. Brown, and Bob Lee Johnson. Collectively these descendants of Pearlie Mackey are Appellees here. In relation to Ford they are first cousins of the whole blood.

On November 24, 1986, some forty-one days after Hattie Ford's death, P.L. Johnson, one of Mackey's kinspeople, filed a petition in the Chancery Court of the Second Judicial District of Panola County seeking appointment as the administrator of Ford's estate. On that same day, Letters of Administration were issued to Johnson. On November 26, 1986, a "NOTICE TO CREDITORS" was first published in The Panolian and was also published on December 3, 1986 and December 10, 1986. After several procedural missteps, the grandchildren of Andrew McCarty, led by Clara Woodall, intervened and claimed Ford's estate.

The First and Final Accounting reflected a modest estate available for distribution to Ford's heirs at law. A checking account in the Batesville Security Bank held a net balance of $1,584.13. A Golden Savings Account in United Southern Bank, Batesville, Mississippi, held $9,608.64 as of May 1987.

The trial was short. Before any witnesses were called, the parties stipulated the family tree of Hattie Ford and offered a chart reflecting the relation of those claiming to be her legal heirs. A copy of this chart is included as an Appendix to this opinion. Clara Woodall, the lead claimant below, called only two witnesses who testified, herself and her husband Alex Woodall. Administrator Johnson called only one witness, Ora Barr Ford, who is one of the first cousins of Hattie Ford. At the time of the trial Ora Barr Ford was 81 years old. At the conclusion of the trial, the Chancery Court requested each side to submit proposed findings of fact and conclusions of law.

The Chancery Court issued findings of fact and conclusions of law, ruling that the legal heirs of Hattie Ford were her maternal first cousins of the whole blood. The Court held, inter alia, that Andrew McCarty, Hattie Ford's natural father, had never acknowledged her as his daughter and, moreover, had refused or neglected to support her during her childhood. Therefore, pursuant to Miss.Code Ann. Sec. 91-1-15(3)(d)(i) (Supp.1989), the nieces and nephews of Hattie Ford claiming through McCarty were precluded from inheritance.

This appeal has followed.

III.

A.

If Andrew McCarty and Pearlie Mackey had been married when they gave birth to Hattie, Appellants would win. Clara Woodall and her nine co-Appellants are nieces and nephews of the half-blood. Paternal nieces and nephews of the half-blood take ahead of maternal first cousins of the whole blood, such as Johnson. Miss.Code Ann. Sec. 91-1-3 and 91-1-11 (1972).

The point needs amplification. The order of descent in Section 91-1-3 is not wholly consistent with "the rules of the civil law." Paternal nieces and nephews of the half-blood take ahead of maternal first cousins of the whole-blood because the statute says so. Once the specific statutory orders of descent are exhausted, "the rules of the civil law" take over and control and further questions of rank among kindred of an intestate. ¹

Returning to today's facts, we find that the statute ranks paternal nieces and nephews in the second degree. Such persons are "descendants of ... sisters ... of the intestate." That they are descendants of Ford's sisters of the half-blood matters not, as Miss.Code Ann. Sec. 91-1-5 (1972) declares that fact irrelevant except in contests for inheritance among kindred "in equal degree." Maternal first cousins of the whole blood, such as Johnson, are not expressly ranked in the statute. Resort to the rules of the civil law reveals them kindred of the intestate in the fourth degree, ² a rank lower than that enjoyed by the paternal nieces and nephews.

Our fundamental premise is that there is no natural law of inheritance. Intestate succession via descent and distribution is purely a function of the positive law of the state. See Jones v. Stubbs, 434 So.2d 1362 (Miss.1983). Subject only to constitutional parameters, none of which are invoked here, Section 91-1-15(3)(d)(i) is controlling. That statute provides:

The natural father of an illegitimate and his kindred shall not inherit from or through the child unless the father has openly treated the child as his, and has not refused or neglected to support the child.

[Emphasis supplied] The illegitimate within the meaning of this statute is Hattie Ford. The natural father is Andrew McCarty. Appellants are the "kindred" of the natural father.

Woodall and her fellow Appellants assert a claim that they are entitled to inherit through McCarty. The structure of the act and the course of proceedings below are that one asserting such a claim bears the burden of persuasion of each of its elements. What is important is that parties such as Appellants bear the risk of an adverse judgment if they fail to establish the elements of their claim.

The statute provides that those claiming through Mackey must prove three facts: (1) that each is the blood kin of the natural father of an illegitimate, (2) that the father, McCarty, openly treated the child, Hattie Ford, as his, and (3) that McCarty did not refuse or neglect to support Ford when she was a child--the latter requisite being legislatively (and pointedly) worded in the negative.

B.

The first point is ordinarily most vital. Adjudging paternity is more than a mere civil dispute persons need fairly resolved so they can get on with the rest of their lives. Where (as here) the claim is brought following the death of the intestate, the claimant must establish paternity by "clear and convincing evidence," Miss.Code Ann. Sec. 91-1-15(3)(c) and (c)(iv) (Supp.1989). This statutory declaration reflects the high degree of confidence society demands in such adjudications. See In Interest of M.R.L., 488 So.2d 788, 790 (Miss.1986); Natural Father v. United Methodist Children's Home, 418 So.2d 807, 810 (Miss.1982); see generally Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); and Note, The Burden of Proof in a Paternity Action, 25 J.Fam.Law 357, 363-64 (1986).

On this point, there can be no doubt. The evidence is uncontradicted that McCarty was the father of Hattie Ford and that Appellants are McCarty's grandchildren, Ford's nieces and nephews. On the other two points, the proof is far more problematical.

To begin with, the statute articulates...