In re Estate of Grubbs

• Decision Date: 10 February 2000
• Docket Number: No. 1999-CA-00200-SCT.,1999-CA-00200-SCT.
• Citation: 753 So.2d 1043
• Parties: In the Matter of the ESTATE OF Hully A. GRUBBS, Deceased. F. Gene Jacks and F. Joan Jacks Brogdon v. Velma Woods, Esther Campbell and Mary Alice Grubbs Thomas.
• Court: Mississippi Supreme Court

753 So.2d 1043

In the Matter of the ESTATE OF Hully A. GRUBBS, Deceased.

F. Gene Jacks and F. Joan Jacks Brogdon v. Velma Woods, Esther Campbell and Mary Alice Grubbs Thomas.

No. 1999-CA-00200-SCT.

Supreme Court of Mississippi.

February 10, 2000.

Barrett Blake Teller, Vicksburg, Attorney for Appellants.

Samuel J. Waits, Grenada, George W. Weaver, Winona, Attorneys for Appellees.

BEFORE SULLIVAN, P.J., SMITH AND MILLS, JJ.

SMITH, Justice, for the Court:

STATEMENT OF THE CASE

¶ 1. Hully A. Grubbs died intestate on February 6, 1996, leaving as survivors the Appellees, Velma Wood, Esther Campbell and Mary Alice Grubbs Thomas. Appellants Freddy Gene Jacks and Joan Jacks Brogdon, who claim to be the illegitimate twin children of Hully Grubbs, filed a Petition to Determine Heirship on May 2, 1996, in the Chancery Court of Montgomery County, Mississippi. The trial commenced before the Honorable Dennis M. Baker, Chancery Judge, on October 14, 1997. Judge Baker found that Velma Wood, Esther Campbell and Mary Alice Grubbs Thomas are the sole heirs-at-law of Hully Grubbs, deceased. Final judgment was entered on January 11, 1999, and the Appellants timely filed a notice of appeal on February 1, 1999. They request that this Court reverse the finding of the chancery court and render a decision in favor of the Appellants, or, alternatively, that this Court remand this case to the chancery court for a new trial.

STATEMENT OF FACTS

¶ 2. Hully A. Grubbs was born on July 2, 1910, and lived in Montgomery County, Mississippi, until the age of 85. He married Mae Box on September 16, 1939, and they lived together until her death in September 1995. Hully Grubbs and Mae Box Grubbs had no children. Hully Grubbs died intestate on February 6, 1996. He left the following survivors: two sisters, Velma Wood and Esther Campbell, and a niece, Mary Alice Grubbs Thomas.

¶ 3. The administrator of the estate, Rodney Mortimer, employed John Sumner as attorney for the estate, which is valued at approximately $350,000. Shortly after the estate was opened, it came to the attention of Sumner that Hully Grubbs might have children born out of wedlock. In his effort to determine rightful beneficiaries of the estate, Sumner inquired into the matter. Sumner's inquiry revealed the possibility that the Appellants, Gene Jacks and Joan Jacks Brogden, fraternal twins, are the children of Hully Grubbs.

¶ 4. The twins were born, out of wedlock, to Mattie Jacks on December 24, 1937, and were adopted by the brother of Mattie Jacks, Jimmy Lee Jacks, and his wife, Nora Jacks, on August 1, 1938. The twins were raised by their adoptive parents in Vicksburg, Mississippi. Gene Jacks and Joan Jacks Brogden filed a Petition to Determine Heirship on May 2, 1996, alleging that they are the children of Hully Grubbs and should therefore inherit the estate to the exclusion of Velma Wood, Esther Campbell and Mary Alice Grubbs. At the time of the hearing before the chancery court, the twins were approaching their sixtieth birthday.

¶ 5. The body of Hully Grubbs was exhumed for the purpose of DNA analysis. Samples were collected and submitted to two independent testing labs, GenTest of New Orleans, Louisiana, and Genetic Design of Greensboro, North Carolina. The evidence presented at trial consisted of sixty years of rumor and gossip, plus the results of the genetic tests, which revealed a probability of paternity with regard to Gene Jacks of 83.7% and a probability with regard to Joan Jacks of 71.97%. Generally, the rumor and gossip went as follows. In 1937, Mattie Jacks sent a letter to Hully Grubbs stating that she was pregnant and requesting money. She allegedly sent like letters to four other men, namely, Allen Holiman, Sam Gardner, Jessie Kilgore, and Pete Sumner. Hully Grubbs showed the letter to his sister, Velma Wood. Hully Grubbs allegedly offered to marry Mattie Jacks, but she refused, stating she wanted only financial assistance. The specifics of the testimony are discussed in detail below. The only witnesses at the bench trial who were contemporaries of the events surrounding the birth of the twins were Velma Wood, the sister of Hully Grubbs, who testified by deposition, the parties having stipulated to her unavailability, and Lottie Grubbs, the sister-in-law of Hully Grubbs. All other witnesses related only rumor and gossip.

¶ 6. The chancellor found that Velma Wood, Esther Campbell and Mary Alice Grubbs Thomas are the sole heirs-at-law of Hully Grubbs, deceased. In his final opinion and order, the chancellor adopted, verbatim, the findings of fact and conclusions of law prepared by George W. Weaver, attorney for Velma Wood and Esther Campbell. From this ruling, Gene Jacks and Joan Jacks Brogdon appeal, raising the following issue:

THE CHANCERY COURT ERRED IN FINDING THAT FREDDY GENE JACKS AND JOAN JACKS BROGDON ARE NOT THE BIOLOGICAL CHILDREN OF HULLY GRUBBS.

STANDARD OF REVIEW

¶ 7. This Court will not disturb findings of fact made by a chancellor unless those findings are manifestly wrong or clearly erroneous. Bank of Mississippi v. Hollingsworth, 609 So.2d 422, 424 (Miss. 1992) (citing Smith v. Dorsey, 599 So.2d 529 (Miss.1992); Bowers Window & Door Co. v. Dearman, 549 So.2d 1309 (Miss. 1989)). This Court must affirm a chancellor on a question of fact unless, upon review of the record, it is "left with the firm and definite view that a mistake has been made." Rice Researchers, Inc. v. Hiter, 512 So.2d 1259, 1264 (Miss.1987) (citations omitted). The factual findings of a chancellor will be affirmed if this Court finds substantial evidence supporting the findings. Brooks v. Brooks, 652 So.2d 1113, 1117-18 (Miss.1995) (citing Lenoir v. Lenoir, 611 So.2d 200, 203 (Miss.1992); Tedford v. Dempsey, 437 So.2d 410, 417 (Miss. 1983)).

¶ 8. Unfortunately, in the case sub judice, the chancellor failed to make his own findings of fact and conclusions of law. Rather, the chancellor adopted, verbatim, the findings of fact and conclusions of law prepared by George Weaver, attorney for Velma Woods and Esther Campbell. This Court has explained that such findings "are not the same as findings independently made by the trial judge after impartially and judiciously sifting through the conflicts and nuances of the trial testimony and exhibits." Rice Researchers, 512 So.2d at 1265. Where the chancellor adopts, verbatim, findings of fact and conclusions of law prepared by a party to the litigation, this Court analyzes such findings with greater care, and the evidence is subjected to heightened scrutiny. Brooks at 1118 (citing Omnibank of Mantee v. United S. Bank, 607 So.2d 76, 83 (Miss.1992); In re Estate of Ford, 552 So.2d 1065, 1068 (Miss.1989)).

¶ 9. The Appellants submit that this Court should review this matter de novo. While, as noted above, the deference normally afforded the chancellor's findings of fact is lessened, this Court will not review this case de novo. As this Court explained in Rice Researchers, though the deference afforded the findings of fact is lessened, where the chancellor is of the view that, over all, the Appellees had "the better of the battle ..., [t]hat determination is entitled to deference, though sensibly not as much as in the ordinary case." Rice Researchers at 1265. This Court must view the challenged findings and the record as a whole "with a more critical eye to ensure that the trial court has adequately performed its judicial function." Id. (citations omitted).

¶ 10. The Appellants also argue that this Court should utilize a de novo standard of review because the chancellor erroneously applied an incorrect legal standard. Where an action is brought to establish paternity and the putative father is deceased at the time of the action, paternity must be proven by clear and convincing evidence. Miss.Code Ann. § 91-1-15(3)(c) (1994). Where a lower court misperceives the correct legal standard to be applied, this Court will not give deference to the findings of the lower court, but instead reviews questions of law de novo. Brooks at 1117 (citing Bean v. Broussard, 587 So.2d 908 (Miss.1991); Bank of Mississippi v. Hollingsworth, 609 So.2d 422, 424 (Miss.1992)).

¶ 11. The Appellants assert that the following statement made by the chancellor in his opinion demonstrates that the chancellor applied an incorrect legal standard:

The Court finds that, in order for Plaintiffs, F. Gene Jacks and F. Joan Jacks Brogdon, to meet their burden of proof by clear and convincing evidence, the social evidence will, of necessity, have to be substantially higher than fifty percent prior probability assigned by Dr. Sinha and agreed to by Dr. Bever and approved by the American Association of Blood Banks.

The chancellor's statement, though confusing because of its unfortunate use of language often employed in describing various quanta of proof, does not demonstrate that the chancellor employed a different standard of proof than that required by § 91-1-15(3)(c). The Appellants take the statement out of context. The statement is found at the close of the chancellor's discussion of his findings of fact regarding the genetic evidence presented by the parties and just prior to his discussion of social or non-genetic evidence presented by the parties. The chancellor, in his discussion of genetic evidence, noted that in arriving at the percentages representing the probability that Hully Grubbs was the father of the Appellants, the Appellants' expert used a prior probability standard of fifty percent. As the experts explained, the prior probability standard depends upon the likelihood of "sexual access" between the mother and putative father. The fifty percent probability standard is the percentage recommended by the American Association of Blood Banks as being "neutral," that is, it does not take into account whether there was a high likelihood of sexual access or a low likelihood of access. The higher the prior probability standard, the higher the percentage...