Leflore By and Through Primer v. Coleman

• Decision Date: 24 February 1988
• Docket Number: Nos. 56631,56677,s. 56631
• Citation: 521 So.2d 863
• Parties: Rodney LEFLORE and Dacia Primer, Minors, By and Through Vera Leflore PRIMER, Their Guardian v. Stanley COLEMAN. In the Matter of the ESTATE OF Willie J. PRIMER, Deceased: Rodney Leflore and Dacia Primer, Minors, By and Through Vera Leflore Primer, Their Guardian and Next Friend v. Willie Charles PRIMER and the Heirs At Law of Willie Primer, Deceased.
• Court: Mississippi Supreme Court

Page 863

521 So.2d 863

Rodney LEFLORE and Dacia Primer, Minors, By and Through Vera

Leflore PRIMER, Their Guardian v. Stanley COLEMAN.

In the Matter of the ESTATE OF Willie J. PRIMER, Deceased:

Rodney Leflore and Dacia Primer, Minors, By and Through Vera Leflore Primer, Their Guardian and Next Friend v. Willie Charles PRIMER and the Heirs At Law of Willie Primer,

Deceased.

Nos. 56631, 56677.

Supreme Court of Mississippi.

Feb. 24, 1988.

Robert M. Jones, Gilmer & Jones, Jackson, for appellant.

Mildred M. Morris, Steen, Reynolds, Dalehite & Currie, Jackson, James E. Smith, Smith & Smith, Carthage, for appellee.

EN BANC.

HAWKINS, Presiding Justice, for the Court:

Before us are the consolidated appeals of Rodney Leflore and Dacia Primer, purported illegitimate children of Willie Primer The issue we address upon this appeal is whether the failure of these minors to assert any claim in the estate of the decedent until after expiration of 90 days from date of first publication of notice to creditors as required by Miss.Code Ann. Sec. 91-1-15(3)(c) bars their claim and action. Because the sworn petition for letters of administration of Primer's estate specifically alleged they were natural children of the decedent (born out of wedlock), and because no effort was made by the administrator to secure process upon them as required by Miss.Code Ann. Sec. 91-1-29, we find that failure to assert a claim in the 90-day period did not bar them, and reverse and remand for proceedings consistent with this opinion.

deceased intestate, from a decree of the chancery court of Leake County dismissing their claim of heirship, and the circuit court of Madison county dismissing their wrongful death action against Stanley Coleman (based upon the chancery court dismissal of their heirship claim).

FACTS

Willie J. Primer, an adult resident of Leake County, was killed in Madison County on September 25, 1983, when the motorcycle he was operating and a GMC truck being driven by Stanley Coleman collided on Old Highway 16. During his lifetime Primer was married to Shirley Primer (later Shirley Primer Payne), and to this marriage one child was born: Willie Charles Primer. At the time of Primer's death, Mrs. Payne, his divorced wife, resided in Detroit, Michigan, with Willie Charles Primer. On October 31, 1983, Sally Ann Primer, the natural mother of Primer, and Mrs. Payne filed a sworn petition for letters of administration upon Primer's estate in the chancery court of Leake County which contained the following allegation:

4. That said decedent was first married to Shirley Primer Payne, but which marriage ended in divorce. To that union one child, Willie Charles Primer, was born. The said child is now 12 years of age and resides with his said mother in Michigan. That petitioner Sally Ann Primer is the mother of decedent. It is further shown that two other children were born to the union of decedent and one Vera Primer, whose address is also Route 7, Box 317, Carthage, Mississippi, said children being Rodney T. Wilder, age 8, Daysha S. Primer, age 7. It is shown, however, that decedent never consumated or contracted a legal marriage with Vera Primer and that although decedent acknowledged said issue as being his children, yet they were never adjudicated his legal children through adoption, paternity action or any other legal means as recognized by Mississippi law.

* * *

6. Petitioner would show that it would be in the best interest of decedent's estate that the Court appoint Sally Ann Primer as administratrix thereof. In support of such contention it is shown that decedent expired not being survived by spouse and that his son, Willie Charles Primer, is disqualified due to his minority, and there are no other persons who stand in equal right except decedent's co-lateral heirs consisting of his parents and brothers and sisters. That because Sally Ann Primer was the mother of decedent and because she resides in Leake County and is not disqualified according to law, that she is in the best position to manage decedent's estate.

Cause No. 56,677, Vol. I, pp. 1-2.

The chancery court entered an order authorizing letters of administration to issue Sally Ann Primer on October 31, 1983.

In the November 3, 10 and 17, 1983, issues of THE CARTHAGINIAN, a weekly newspaper published in Leake County, the following notice to creditors was published:

NOTICE TO CREDITORS

In the Matter of the Estate of Willie J. Primer, deceased.

Sally Ann Primer, Administratrix

Civil Action File No. 11,087.

All persons holding claims against the Estate of Willie J. Primer, deceased, will appear before the Clerk of the Chancery Court of Leake County, Mississippi and have same probated and registered by the Clerk of said Court within ninety (90) days after the date of the first publication of this notice.

Letters of Administration were granted to Sally Ann Primer by the Clerk of said Court on the 31st day of October, 1983.

All persons failing to probate and register their claims against said estate within ninety (90) days from the date of first publication of this Notice will be forever barred, and a suit shall not be maintained thereon in any court even though the existence of the claim may have been known to the administratrix.

This the 31 day of October, 1983.

(s) Sally Ann Primer

Cause No. 56,677, Vol. I, p. 13.

Also, on the 31st day of October, 1983, Sally Ann Primer filed a petition for authority to bring a suit for the wrongful death of Primer, pursuant to Sec. 11-7-13 of the Mississippi Code (1972) in behalf of Willie Charles Primer. The chancery judge entered an order authorizing the filing of suit on November 14, 1983. The order recites that "the sole statutory heir of decedent is his son, Willie Charles Primer, a minor, who is 11 years of age."

On the 29th day of February 1984, Vera Leflore Primer filed a complaint in behalf of Rodney Leflore and Dacia Leflore in the chancery court of Leake County to determine their right to inherit. The complaint alleged that Rodney and Dacia were minor residents of Leake County and that Vera was an adult resident of Leake County. It named Willie Charles Primer and his mother Shirley Payne as defendants, and further alleged that the plaintiffs were unable to ascertain the name or post office address of any additional heirs to Willie Primer. The complaint also contained the following allegations:

II.

The Plaintiffs, Rodney Leflore and Dacia Primer, along with Defendant, Willie Charles Primer, are all children of Willie Primer and are also the sole heirs at law of Willie Primer, who died on or about September 25, 1983; and, said plaintiffs file this Complaint To Determine Right To Inherit pursuant to Miss.Code Ann. Sec. 91-1-27, et seq. (1972).

III.

Plaintiffs have not instituted proceedings under the paternity laws of the State of Mississippi, or any other state, for the purpose of establishing the paternity of said Rodney Leflore and Dacia Primer, and enforcing the rights of Rodney Leflore and Dacia Primer to inherit under said law.

IV.

During the lifetime of Willie Primer, Willie Primer acknowledged Rodney Leflore and Dacia Primer, by his spoken words and actions, to be his son and his daughter, respectively.

V.

Upon his death, Willie Primer died intestate and had his principal residence in Leake County, Mississippi. That at the time of his death, Willie Primer died possessed of real and personal property in the State of Mississippi. Plaintiffs allege that they, along with Willie Charles Primer, are the sole heirs at law of Willie Primer and, by virtue of such heirship, Plaintiffs are entitled to share in the estate of Willie Primer, including but not limited to, the aforementioned property and any claims arising out of or relating to the death of Willie Primer.

WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that this Complaint be received, that process issue for the Defendant, Willie Charles Primer, and further, that summons by publication be made to the Clerk of this Court addressed "to the unknown heirs at law of Willie Primer, Deceased", commanding the Defendants, both known and unknown, to answer or plead otherwise according to law, and that upon a final hearing hereof, an order be entered recognizing Rodney Leflore and Dacia Primer as the children and heirs at law of Willie Primer, Deceased, and further adjudicating Willie Primer to be the natural father of both Rodney Leflore and Dacia Primer.

Cause 56,677, Vol. I, pp. 15-16.

Process by publication was had upon Willie Charles Primer and his mother Shirley Payne on the 8th, 15th and 22nd days of March, 1984, in THE CARTHAGINIAN.

Among other things, the right to inherit by Rodney and Dacia was contested because no claim had been filed within 90 days from date of publication of the first notice to creditors. The special chancellor in his opinion stated the following:

The second defense contained in the guardian's answer is that Plaintiffs did not file their complaint to inherit within 90 days after the first publication of notice to creditors in this estate as provided by Miss.Code Ann., Sec. 91-1-5 (Supp.1984) and thus plaintiffs are barred from proceeding. In this regard the court has been asked to take judicial notice of the court file. Further, independent facts stipulated at the hearing establish that the first notice to creditors was published on November 3, 1983, and the complaint to determine right to inherit was not filed until February 29, 1984. The fact that the plaintiffs are illegitimate is not in dispute. There is no doubt that more than 90 days elapsed between the first publication to creditors and the filing of the complaint. Thus by the terms of the statute, plaintiffs are barred from proceeding. Plaintiffs argued that the administrator's notice to creditors was ineffective to start the running of the statute of limitations because the order of the chancery clerk appointing the administrator was never approved by the...