Jones by Jones v. Harris, 55051

• Decision Date: 14 November 1984
• Docket Number: No. 55051,55051
• Citation: 460 So.2d 120
• Court: Mississippi Supreme Court
• Parties: Albert & Bridget JONES, Minors, by Mother and Next Friend, Albertine JONES and Barbara Jones v. Patricia R. HARRIS, Secretary, Department of Health and Human Services.

Page 120

460 So.2d 120

Albert & Bridget JONES, Minors, by Mother and Next Friend Albertine JONES and Barbara Jones v. Patricia R. HARRIS, Secretary, Department of Health and Human Services.

No. 55051.

Supreme Court of Mississippi.

Nov. 14, 1984.

Dennis W. Carroll, Eileen Franch, Peter M.D. Martin, Baltimore, for appellants.

Stanley Ericsson, Baltimore, for appellee.

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

WALKER, Presiding Justice, for the Court:

This cause is certified by the United States Court of Appeals for the Fourth Circuit, 712 F.2d 924 (1983), pursuant to Rule 46 of the Rules of the Supreme Court of Mississippi which provides:

When it appears to the Supreme Court of the United States, or to any circuit court of appeals of the United States, that there are involved in any proceedings before it questions or propositions of law of this state which are determinative of said cause independently of any other questions involved in said case and that there are no clear controlling precedents in the decisions of the Supreme Court of this State, such federal court before rendering a decision may certify such questions or propositions of law of this state to the Supreme Court of Mississippi for rendition of a judgment or opinion concerning such questions or propositions of Mississippi law. This Court may, in its discretion, decline to answer the questions certified to it. (August 1, 1980).

The question certified is stated as follows:

Accepting that there is such differentiation as between legitimate children on the one hand and illegitimate children on the other hand in the applicable Mississippi statutory provisions governing rights of inheritance (compare Miss.Code Sec. 91-1-15 of Trusts and Estates Title, Descent and Distribution Chapter with Sec. 91-1-3 and Sec. 91-1-11), as to render the less favorable treatment of illegitimate children unconstitutional and void, does the law of the State of Mississippi call for interpretation of the Mississippi statutes governing descent and distribution or common law to apply and extend to illegitimate children the benefits available to legitimate children, or would Mississippi achieve that result only by virtue of Federal constitutional imperative?

The underlying case concerns a claim for surviving children's insurance benefits under the Social Security Act. Under the provisions of 42 U.S.C. Sec. 416(h)(2)(A) a child whose parents were not married qualifies as a dependent of his father if he would be entitled to share in the intestate estate of his father according to "such law as would be applied in determining the devolution of intestate personal property by the Courts of the State in which he [the insured] was domiciled at the time of his death...." (Emphasis added).

The three children involved are Maryland residents. The putative father was at the time of his death in April 1975 a Mississippi domiciliary. Albertine Jones initially filed for Social Security benefits on behalf of her children August 22, 1976. The United States District Court for the District of Maryland and the Court of Appeals for the Fourth Circuit upheld the denial of benefits (Jones v. Schweiker, 668 F.2d 755 (4th Cir.1981)).

A writ of certiorari was granted by the United States Supreme Court on November 1, 1982. On April 18, 1983 the Supreme Court vacated the judgment of the Fourth Circuit and remanded "for further consideration in light of Mississippi Code Annotated section 91-1-15 (Cum.Supp.1982)." Jones v. Heckler, 460 U.S. 1077, 103 S.Ct. 1763, 76 L.Ed.2d 339 (1983).

Section 91-1-15, as amended, creates a new remedy through which illegitimates may pursue their rights in a petition to establish heirship.

Under the law as it was at that time we held in Knight v. Moore, 396 So.2d 31 (Miss.1981) that for an illegitimate to inherit from her father she must bring suit to establish paternity within six years after attaining the age of twenty-one.

After the enactment of section 91-1-15 (Supp.1981) which became effective July 1, 1981, we considered Estate of Kidd v. Kidd, 435 So.2d 632 (Miss.1983) ¹ and held that section 91-1-15, as amended, created a new remedy whereby illegitimates, who would have otherwise been barred under the holding of Knight v. Moore, supra, could proceed under the new remedy known as an action to determine heirship and that Emma Gunn Webber, the illegitimate child of Mack Kidd, was not barred from pursuing her claim on the estate of Kidd when brought under the new statute. We held that the chancellor had erroneously construed Knight so as to bar Emma Gunn Webber's claim and in dismissing her petition. We remanded the case to allow Ms. Webber to pursue her claim on the estate of Kidd under section 91-1-15 as amended.

In Larsen v. Kimble, 447 So.2d 1278 (Miss.1984) the Court again looked at section 91-1-15, as amended, this time in light of a 1983 amendment to the statute. This amendment was not intended as a substantive change but was enacted to make sure that the intent of the legislature was understood. The Court stated:

The 1981 amendment and the 1983 clarification thereof clearly eliminated the "unsurmountable" statutory barrier condemned in Trimble v. Gordon, supra [430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977) ], while at the same time shortened the limitation period within which to bring a claim and increased the standard of proof to sustain such a claim. In doing so we believe that the amendment in 1981 and clarification amendment in 1983 will effectively afford the illegitimates equal protection of the law, while at the same time accomplish the legitimate state interest of (1) avoiding the litigation of stale or fraudulent claims, (2) the fair and just disposal of an intestate decedent's property; and (3) the repose of titles to real property. Estate of Kidd v. Kidd, supra. Justice will thereby prevail wherein all may take comfort, legitimates and illegitimates alike, that they will be treated equally under the laws of the State of Mississippi.

447 So.2d at 1283.

In Larsen this Court held that the child of an illegitimate could bring suit to determine her heirship in the estate of the father of her deceased illegitimate mother.

In Stevenson v. Daniels, 446 So.2d 597 (Miss.1984) the Court reversed the lower court for dismissing the claim of a woman claiming to be the illegitimate daughter of the intestate. We held that her claim which was not brought within six years of her attaining majority was not barred under section 91-1-15, as amended.

We have not dealt with the constitutionality vel non of section 91-1-15, as amended, because we have not had the question presented to us in a case appealed from a court in which the matter was litigated. In this cause there has been no judicial ruling as to the constitutionality of section 91-1-15. To the contrary, the United States District Court for the District of Maryland and the United States Court of Appeals in Jones v. Schweiker, 668 F.2d 755 (4th Cir.1981), found it unnecessary to answer the question for the reason that the Jones children had not established dependency on the putative father and were ineligible for benefits for that reason.

The rule we follow is that a statute is presumed to be constitutional. Peterson v. State, 268 So.2d 335 (Miss.1972); Masonite Corp. v. State Oil & Gas Bd., 240 So.2d 446 (Miss.1970); Mai v. State, 152 Miss. 225, 119 So. 177 (1928); Johnson v. Reeves & Co., 112 Miss. 227, 72 So. 925 (1916); L.N. Dantzler Lumber Co. v. State, 97 Miss. 355, 53 So. 1 (1910); Runnels v. State, Walker (1 Miss.) 146 (1823). In this context, we have said:

Courts have a solemn duty to avoid passing upon the constitutionality of any law expressed by the people through their Legislature unless compelled to do so by an issue squarely presented to and confronting a court in a particular case.

Western Line Consolidated School District v. Greenville Municipal Separate School District, 433 So.2d 954, 958 (Miss.1983).

In this case, we do not feel compelled to answer the question certified since we are asked to assume that section 91-1-15 is unconstitutional when that question has not been squarely presented to and litigated by a court of competent jurisdiction.

We therefore respectfully decline to answer the question certified.

DECLINED TO ANSWER QUESTION CERTIFIED.

PATTERSON, C.J., ROY NOBLE LEE, P.J., and BOWLING, HAWKINS, DAN M. LEE, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.

ROBERTSON, BOWLING and DAN M. LEE, JJ., specially concur.

ROBERTSON, Justice, specially concurring:

I.

This case concerns the rights of illegitimate children of deceased fathers to certain social security benefits under the provisions of 42 U.S.C. Sec. 416(h)(2)(A). To determine whether these illegitimate children are entitled to these benefits, Section 416(h)(2)(A) mandates that we ask whether they would be entitled to a share in their father's estate according to "such law as would be applied in determining the devolution of intestate personal property by the courts of the State ... in which their father was domiciled at the time of his death...."

Why the question asked of us by the Court of Appeals was not so put escapes me. If it had been, I am confident the Court would have simply declared--as is implicit in the majority opinion--that these illegitimates were so entitled in that under Miss.Code Ann. Sec. 91-1-15 (Supp.1984) each had every reasonable procedural opportunity to establish their right to share in the estate of their intestate father. Assuming that there is proof sufficient to show that the deceased was in fact the father of these children, each was eligible to secure a share in the intestate estate of their father under such law as would be applied by the courts of this state.

For reasons I cannot follow, the Court of Appeals balks at this logic--and, as aptly suggested by Judge Bryan, 712 F.2d at 929, has turned this nine year old case into a Jarndyce and Jarndyce. I am...