Estate of Taylor, Matter of

• Citation: 609 So.2d 390
• Decision Date: 26 August 1992
• Docket Number: No. 90-CA-0409,90-CA-0409
• Parties: In the Matter of the ESTATE of Robert TAYLOR, Deceased. Joyce PERKINS v. Lizzie Lee THOMPSON, Booker T. Lee, Thelma Lee Newton, and Western Surety Company.
• Court: United States State Supreme Court of Mississippi

Page 390

609 So.2d 390

In the Matter of the ESTATE of Robert TAYLOR, Deceased.

Joyce PERKINS v. Lizzie Lee THOMPSON, Booker T. Lee, Thelma Lee Newton, and Western Surety Company.

No. 90-CA-0409.

Supreme Court of Mississippi.

Aug. 26, 1992.

Rehearing Denied Dec. 3, 1992.

Ceola James, Vicksburg, for appellant.

C. Ashley Atkinson, Bert H. Jones, McComb, William Timothy Jones, Calvin L. Wells, Frank T. Moore, Jr., Wells Moore Simmons Firm, Jackson, for appellees.

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

ROBERTSON, Justice, for the Court:

I.

This is an intestate inheritance contest. The Court below held appellant failed to prove she was the natural daughter of the deceased and did so on grounds appellant's proof did not overcome the presumption of legitimacy arising from the fact that, at appellant's birth, her mother was married to a man other than decedent. This appeal presents principally the question whether there was substantial evidence in the record adequate that this finding must be affirmed.

Appellant also took on an official capacity as administratrix of decedent's estate. She procured and filed an administratrix's bond and, incident thereto, agreed to indemnify the surety for certain legal expenses. The Chancery Court ordered indemnity, and we have before us the question whether the sums covered thereby were reasonably and necessarily incurred in surety in protecting its legitimate interests.

II.

Robert L. Taylor ("Taylor"), died intestate on August 1, 1985 a resident, citizen of Vicksburg, Warren County, Mississippi. Six days later, Joyce Louise Perkins ("Joyce"), ¹ a resident of North Carolina, approached the Chancery Court of Warren County and sought appointment as administratrix of Taylor's estate, representing that she was Taylor's sole heir, by reason of her being his daughter, albeit without benefit of Taylor's marriage to her mother at her birth. The Chancery Court entered its order of like date granting the petition and, soon thereafter, Joyce formally qualified as administratrix. Incident thereto, Joyce posted a bond written by Western Surety Company ("Surety") in the penal sum of $200,000.00, a matter of consequence, as will presently appear. Notice to creditors was published in due course, and administratrix began collecting the assets and administering the estate.

At the time of his death, it appears Taylor held assets valued at about $290,000.00, some $186,000.00 of which was in personal property and $157,070.00 of that was cash in a safe deposit box. Taylor also owned real estate valued at approximately $104,000.00. The bulk of the real estate consisted of seven low income rental properties in poor condition, in some of which the decedent had only an undivided interest.

On March 12, 1986, Joyce, as administratrix, obtained an order from the Chancery Court approving her First and Final Accounting, declaring that she was the daughter and sole heir at law of Robert L. Taylor, deceased, and directing that all assets of the estate be distributed to herself in her individual capacity. The distribution included $168,056.30 in cash. The estate was not then finally closed, however, nor the administratrix or surety discharged, as final closing letters from the respective taxing authorities had not been received.

Several months later, Lizzie Lee Thompson, Booker T. Lee and Thelma Lee Newton, the aunts and uncle of Robert L. Taylor, filed a motion to intervene. They denied Joyce's claim to inherit and insisted they were Taylor's heirs at law. On September 10, 1986, the Chancery Court granted the aunts and uncle leave to intervene and rescinded its order declaring Joyce Perkins as sole heir at law of Robert L. Taylor. Substantial, complex and hotly contested litigation thus began and has proceeded apace.

The case now makes its second appearance before this Court. In Perkins v. Thompson, 551 So.2d 204 (Miss.1989), we resolved a number of preliminary and procedural issues and remanded for trial on the merits. The ultimate issue is whether Joyce Louise Perkins is the natural daughter of Robert L. Taylor, now deceased. If she is, she is his sole heir at law, for it is clear Taylor otherwise died without a surviving spouse or issue. Miss.Code Ann. Secs. 91-1-3, -11 and -15 (1972 and Supp.1991). The source of the controversy is that, at the time of her birth, August 31, 1952, Joyce's mother was married to Ben Perkins, Sr. In opposition to her claim that Taylor was her father, Taylor's aunts and uncle invoked the presumption of legitimacy and have insisted that, in law, Ben Perkins, Sr., was her father, not Robert Taylor. The Chancery Court recognized the presumption and held Joyce had not rebutted it and denied her claim to the estate.

Joyce now appeals.

III.

This appeal demands a sensitive regard for our settled scope of review of a chancery court's decision on issues of fact and credibility. We have repeatedly stated we will examine the record before us and accept that evidence reasonably tending to support the findings made below, along with all reasonable inferences which may be drawn therefrom and which favor the lower court's findings of fact. Williams v. Evans, 547 So.2d 54, 58 (Miss.1989); Clark v. Myrick, 523 So.2d 79, 81 (Miss.1988); Mullins v. Ratcliff, 515 So.2d 1183, 1189 (Miss.1987); Cotton v. McConnell, 435 So.2d 683, 685 (Miss.1983). The chancery court sitting as the trier of fact has the primary authority and responsibility to assess the credibility of witnesses. Bryan v. Holzer, 589 So.2d 648, 659 (Miss.1991); Mullins v. Ratcliff, 515 So.2d at 1189; Hall v. State ex rel. Waller, 247 Miss. 896, 903, 157 So.2d 781, 784 (1963). Where we find substantial evidence in the record supporting the findings of fact, we will seldom reverse, whether those findings be of ultimate fact or of evidentiary fact. Mullins, 515 So.2d at 1189; Norris v. Norris, 498 So.2d 809, 814 (Miss.1986); Gilchrist Machine Co., Inc. v. Ross, 493 So.2d 1288, 1292 (Miss.1986).

Put another way, this Court ought and generally will affirm a trial court sitting without a jury on a question of fact unless, based on substantial evidence, the court be manifestly wrong. UHS-Qualicare, Inc. v. Gulf Coast Community Hospital, Inc., ... [525 So.2d 746, 753-54 (Miss.1987) ]; Brown v. Williams, et al., 504 So.2d 1188, 1192 (Miss.1987); Harkins v. Fletcher, 499 So.2d 773, 775 (Miss.1986); Dillon v. Dillon, 498 So.2d 328, 329 (Miss.1986); Will of Polk, 497 So.2d 815, 818 (Miss.1986).

Mullins, 515 So.2d at 1189.

Still, these standards are general and elusive of precise statement and application, and we have struggled in difficult cases to understand and articulate precisely what is meant. One expression is that "a finding of fact" is "clearly erroneous" when:

although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made.

UHS-Qualicare, 525 So.2d at 754; see also, Bryan v. Holzer, 589 So.2d at 659; Estate of Robinson v. Gusta, 540 So.2d 30, 33 (Miss.1989); Matter of Estate of Varvaris, 528 So.2d 800, 802 (Miss.1988). Moreover, to the point of credibility, a trial judge has no authority arbitrarily to reject the testimony of a witness otherwise plausible on its face, particularly where that testimony is substantially corroborated. Cf. Heidel v. State, 587 So.2d 835, 839 (Miss.1991). We are left in the end with guides to judgment and not rules susceptible of mechanical application.

IV.

A.

The law of this state confers upon one such as Joyce Perkins the right to inherit from and through her natural father, even though she was born out of wedlock, provided she proves paternity by clear and convincing evidence. Miss.Code Ann. Sec. 91-1-15(3) (Supp.1991). Because her mother was married to another at the time of Joyce's birth, Joyce's burden bears a further expression. Our law has long presumed a child born during the course of a marriage to have been fathered by the husband. See Herring v. Goodson, 43 Miss. 392 (1870). We have called the presumption of legitimacy as "one of the strongest known to our law." Karenina By Vronsky v. Presley, 526 So.2d 518, 523 (Miss.1988); Coleman v. Hudson, 396 So.2d 1024, 1026 (Miss.1981); Madden v. Madden, 338 So.2d 1000, 1001 (Miss.1976). The presumption is grounded in the mores and conveniences of our society. We are concerned that children be protected from being "branded as illegitimate." Brabham v. Brabham, 483 So.2d 341, 342 (Miss.1986); Stone v. Stone, 210 So.2d 672, 674-75 (Miss.1968). Mothers and fathers are secured as well. Madden v. Madden, 338 So.2d at 1002. More practically, the presumption protects the

substantial state interest in providing for the stability of land titles and in the prompt and definitive determination of the valid ownership of property left by intestate decedents.

Coleman v. Hudson, 396 So.2d at 1026.

Still, "the presumption has bowed to realism," and case after case recognizes it may be rebutted. See, e.g., Karenina By Vronsky v. Presley, 526 So.2d at 523-24. A party challenging legitimacy may prevail if he proves beyond a reasonable doubt that the legal husband of the mother is not, in fact, the biological father. Baker By Williams v. Williams, 503 So.2d 249, 253 (Miss.1987); Deer v. State Department of Public Welfare, 518 So.2d 649, 652 (1988); Dixon v. Curtis, 340 So.2d 722, 727 (Miss.1977). The heavy burden--proof beyond a reasonable doubt--is a function of the level of confidence public policy demands in findings of illegitimacy. Cf. Anderson v. Burt, 507 So.2d 32, 38 (Miss.1987).

The burden notwithstanding, (dis)proving paternity is a matter of fact, and courts proceed as with other issues of fact. Any evidence tending to support or deny the fact may be considered. See Rule 401, Miss.R.Ev. Traditional stratagems have been to offer evidence the husband is incapable of procreation or that he had no access to the wife at times when biology...