Hulitt v. Jones, 39219

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: ETHRIDGE
• Citation: 72 So.2d 204,220 Miss. 827
• Parties: HULITT et al. v. JONES.
• Docket Number: No. 39219,39219
• Decision Date: 03 May 1954

Page 204

72 So.2d 204 220 Miss. 827 HULITT et al.
v.
JONES. No. 39219. Supreme Court of Mississippi. May 3, 1954.

Page 205

[220 MISS 829] Hermon Dean, Canton, for appellants.

Will S. Wells, Jackson, for appellee.

ETHRIDGE, Justice.

This case involves the question of whether appellants' uncontradicted evidence was sufficient to establish an acknowledgment of paternity under Code of 1942, Sec. 474, which provides: 'Descent among illegitimates.--If any man beget a child or children by a woman whom he shall afterward marry, such child or children, if acknowledged by the man, shall, in virtue of such marriage and acknowledgment, be legitimate, and capable in law to inherit and transmit inheritance as if born in wedlock. * * *'

[220 MISS 830] Prior to September 1890 Anna Johnson, an unmarried woman, gave birth to a child named Bertha. On September 10, 1890, Anna married A. R. (Otley) Jones. All of the parties are Negroes. In September 1893 Anna sued Otley Jones for divorce on the grounds of desertion. The bill charged their marriage and a desertion; that defendant had never supported her since their marriage; and that 'a child was born to them before said marriage, a girl Bertha, by name,' but that defendant had never supported the child. The bill asked for a divorce and for the court to 'give your complainant the custody of the person of their child, Bertha.' Personal process was served upon Otley Jones, he made no answer, and after hearing evidence, the chancery court on September 26, 1893, granted Anna a divorce from Otley. The decree adjudicated that 'the matters and things set forth in the complainant's bill are true as stated.' It granted the divorce, and Anna was 'awarded the custody of her child Bertha * * *'

In later years Bertha Jones, the child of Anna and Otley, married Horace Jones, and the appellants, complainants below, were the two daughters and only children of Bertha. Bertha died in 1932. Prior to that time, the appellee, defendant below, Maggie Jones, married Otley. Otley died intestate in March 1944. At the time of his death he owned three lots in the City of Jackson. The appellants, daughters of Bertha, filed this suit in December 1952, against the widow of Otley Jones. Appellants charged

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that Bertha, their mother, was the acknowledged daughter of Otley Jones, under Code Section 474, and that as Bertha's sole heirs they are entitled to an undivided one-half interest in Otley's estate, with his widow Maggie Jones being the owner of the remaining one-half, with a widow's homestead right in one of the lots. So appellants asked that the property be partitioned. Appellee admitted that Otley was at one time married to Anna Johnson, before his marriage to appellee,[220 MISS 831] but denied that Bertha was a child born of the preceding marriage, and averred that she was born out of wedlock. The answer denied that appellants are the heirs of Otley Jones.

Appellant relied upon the testimony of six witnesses. Appellee offered none. The chancery court held that appellants' evidence was not sufficient to establish for them any rights under Section 474, or to show any acknowledgment...