Estate of Thomas v. Thomas, No. 2002-CT-01230-SCT.

• Decision Date: 14 October 2004
• Docket Number: No. 2002-CT-01230-SCT.
• Citation: 883 So.2d 1173
• Parties: In the Matter of the ESTATE OF Ezell "Boggie" a/k/a "Boogie" THOMAS, Deceased: Sharon Haley, Jannie Collins, Derick Thomas, Eric Thomas, Timothy Thomas, Lynn Vallian, Dezie Haley, Gayle Haley, Demetria Murry, Jimmy Dale Dixon, Ray Joseph Fountain, Delanious Grinnell and Marion Oliver v. Glenda Joyce THOMAS, Administratrix.
• Court: Mississippi Supreme Court

883 So.2d 1173

In the Matter of the ESTATE OF Ezell "Boggie" a/k/a "Boogie" THOMAS, Deceased: Sharon Haley, Jannie Collins, Derick Thomas, Eric Thomas, Timothy Thomas, Lynn Vallian, Dezie Haley, Gayle Haley, Demetria Murry, Jimmy Dale Dixon, Ray Joseph Fountain, Delanious Grinnell and Marion Oliver v. Glenda Joyce THOMAS, Administratrix.

No. 2002-CT-01230-SCT.

Supreme Court of Mississippi.

October 14, 2004.

Kevin Dwight Muhammad, attorney for appellants.

Christopher E. Fitzgerald, Robert A. Pritchard, Jackson, attorneys for appellee.

EN BANC.

ON WRIT OF CERTIORARI

COBB, Presiding Justice, for the Court.

¶ 1. Ezell "Boogie" Thomas (Thomas) died intestate in 1997. His estate, which consisted solely of claims for unliquidated damages against R.J. Reynolds Tobacco Company (RJR) and others, was administered in the Jefferson County Chancery Court. In the course of that administration, an adjudication of heirship was required, and the chancellor's final judgment on petition to determine heirs is the subject of the appeal now before this Court.¹ The Court of Appeals reversed and rendered, holding that Thomas's heirs at law are his brother, sisters, mother and descendants of his deceased brother and sister, and not his illegitimate children as found by the trial court. In re Estate of Thomas, 881 So.2d 257 (Miss.Ct.App.2003). This Court granted certiorari to determine if the Court of Appeals erred in its determination.

FACTS

¶ 2. Ezell "Boogie" Thomas died intestate on August 27, 1997. He was never married. His estate consisted solely of claims for unliquidated damages against R.J. Reynolds Tobacco Co. and others for injuries caused by cigarette smoking. Glenda Joyce Thomas, a sister of the decedent, administratrix of the estate, and petitioner before this Court, instituted estate proceedings on November 10, 1997. The notice to creditors was first published on November 13, 1997. When Ms. Thomas (the administratrix) filed the petition to administer the estate, she listed only one of Thomas's children, Natasha Gail Motley (Natasha), as a surviving heir, as well as Thomas's mother, one brother, four sisters, and a half sister. The petition stated only the cities in which the purported heirs lived and showed Natasha as living in Houston, Texas.² No process was served on the purported heirs.

¶ 3. The administration was dormant until August 6, 2001, at which time a petition to distribute $2,200 from the estate was filed by the administratrix, joined by two sisters of the decedent, Elisha Clark and Louise Griffin. There was a signature line for Natasha³ to join also, but it was not signed. The petition stated that these four were the only remaining heirs at law. The subsequent order dated August 2, 2001, authorizing disbursement of the funds, noted that Natasha "cannot be located" and her share of the funds should be paid into the registry of the chancery court to be held until she could be found. Despite having listed Natasha on the initial petition, and later acknowledging that Thomas had a son, Donnie, the administratrix failed to give notice of the administration of their father's estate to either Natasha or Donnie⁴, as Thomas's illegitimate children and thus potential heirs.

¶ 4. Because heirship was important in the suit against RJR pending at the time of Thomas's death, RJR moved to have Thomas's sister removed as administratrix and for determination of Thomas's lawful heirs. The chancellor reserved ruling on that motion, but on December 28, 2001, he ordered a determination of heirs, as requested by RJR, and directed the administratrix to file statutory heirship proceedings within 45 days. He further ordered her to secure valid process on all necessary parties, including any and all illegitimate children of Ezell Thomas. The petition for such determination, filed January 15, 2002, named both Natasha and Donnie as potential heirs, but still noted their residency as only Houston, Texas. However, summonses were issued for Natasha by full address in Houston, and to Donnie, by inclusion in the notice to defendants by publication.

¶ 5. Natasha subsequently executed an affidavit declaring that she is the daughter of Ezell Thomas and Willie Marie Motley, asserting her claim to her father's estate, and stating that she believes that the administratrix and/or her sisters knew of her whereabouts and how to contact her. She requested to be present at the heirship hearing but stated that she did not have counsel and was financially unable to make the trip from Houston on such short notice. RJR filed this affidavit on March 11, 2002.

¶ 6. The hearing was re-scheduled, and on April 30, 2002, determination of the heirs of Ezell Thomas was begun. The trial court heard testimony from the administratrix Glenda Joyce Thomas; Natasha's mother, Willie Marie Motley; and Natasha. Also present that day were a number of nieces and nephews and several siblings of Ezell Thomas, none represented by counsel. During preliminary inquiry by the chancellor as to who was present and what relation they were to the deceased, he asked if anyone in that group was there to contest the fact that Natasha is an heir. No one responded. He then rephrased his question to say that he interpreted the silence "to mean that nobody is contesting the fact that [Natasha] may be the child of the decedent. Is that right?" Again, no response. The assembled group was also asked if anyone knew the whereabouts of Donnie Thomas. None did. The testimony of the three witnesses clearly supported the fact that Natasha was the daughter of Ezell Thomas. The chancellor took the matter of Natasha's heirship under advisement, scheduled a continuation of the hearing for a later date, and noted that diligent search and inquiry should be made for an address for Donnie, as well summons by publication being issued.

¶ 7. Donnie was finally located after diligent and exhaustive search via the internet and was served with process on May 28, 2002. He was present when court reconvened on June 11 and testified on behalf of his claim to be adjudicated as the son of Ezell Thomas. Others testifying on his behalf were Donnie's mother, Betty Joyce Howard, and her sister, Jackie. A number of the blood relatives were also present and represented by counsel, and testimony was given by three nieces and two nephews of the decedent.

¶ 8. The chancery court found, upon clear and convincing evidence, that Natasha and Donnie were the sole heirs at law of Ezell Thomas. The decedent's other relatives appealed, asserting that the statute of limitations had lapsed for the decedent's illegitimate children and that the chancellor erred in finding that Natasha and Donnie were the sole heirs. The Court of Appeals reversed and rendered, holding that the one-year statute of limitations prohibiting suits to determine heirs cannot be tolled. Upon our review on certiorari, we disagree and reverse the judgment of the Court of Appeals and reinstate and affirm the chancellor's judgment.

STANDARD OF REVIEW

¶ 9. "An appellate court will not disturb the factual findings of a chancellor unless such findings are manifestly wrong or clearly erroneous." Estate of Dykes v. Estate of Williams, 864 So.2d 926, 930 (Miss.2003). "If there is substantial evidence to support the chancellor's findings of fact, those findings must be affirmed." Id. On questions of law, this Court reviews the record de novo. Miss. Dep't of Transp. v. Johnson, 873 So.2d 108, 111 (Miss.2004).

ANALYSIS

¶ 10. We are asked to determine whether an affirmative duty exists for the administratrix to provide notice to the potential heirs of an estate, and if so, whether failure to give the potential heirs such notice tolls the 90-day statutory time period.

1. Notice

¶ 11. The statute in question is Mississippi's illegitimate children statute, which provides a limited remedy to illegitimates to enforce substantive rights and claims of intestate succession.

An illegitimate shall inherit from and through the illegitimate's natural father... according to the statutes of descent and distribution if ... [t]here has been an adjudication of paternity after the death of the intestate, based on clear and convincing evidence.... However, no such claim of inheritance shall be recognized unless the action seeking an adjudication of paternity is filed within one (1) year after the death of the intestate or within ninety (90) days after the first publication of notice to creditors to present their claims, whichever is less....

Miss.Code Ann. § 91-1-15(3)(c) (Rev. 2004). The pertinent part of this statute gives illegitimate children the right to inherit from a father who died intestate, so long as paternity has been proven. The sole limitation placed on the illegitimate children seeking inheritance is that their paternity claims must be filed either within one year of the death of the intestate or within 90 days of the first publication of notice. This Court must now determine what, if any, facts and circumstances warrant the tolling of these time limitations.

¶ 12. Under Mississippi case law, the administratrix of an estate is under a duty to use reasonable diligence to ascertain potential heirs. Smith ex rel. Young v. Estate of King, 579 So.2d 1250, 1252 (Miss.1991). See also In re Estate of Johnson, 705 So.2d 819, 822 (Miss.1996)

. Another duty of the administratrix is to provide notice to known or reasonably ascertainable illegitimate children who are potential heirs and whose claims would be barred if the 90-day statutory time period had run. King,

579 So.2d at 1253. Under Mississippi law, an administratrix acts as a fiduciary for all persons interested in the estate. Shepherd v. Townsend, 249 Miss. 383, 162 So.2d 878, 881 (1964). The administratrix has this duty of notice by statute. Miss.Code Ann. § 91-1-29 (Rev. 2004). In King, as here, the administratrix failed to notify the court of a reasonably ascertainable heir and failed to notify the heirs...