Perkins v. Thompson, 58856

• Decision Date: 09 August 1989
• Docket Number: No. 58856,58856
• Parties: Joyce PERKINS, et al. v. Lizzie Lee THOMPSON, et al.
• Court: Mississippi Supreme Court

Page 204

551 So.2d 204

Joyce PERKINS, et al. v. Lizzie Lee THOMPSON, et al.

No. 58856.

Supreme Court of Mississippi.

Aug. 9, 1989.

Rehearing Denied Sept. 20, 1989.

Ceola James, Vicksburg, for appellants.

Calvin L. Wells, Frank T. Moore, Jr., Wells, Moore, Simmons, Stubblefield & Neeld, Jackson, C. Ashley Atkinson, William Timothy Jones, Bert H. Jones, McComb, for appellees.

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

PRATHER, Justice, for the Court:

The Chancery Court of Warren County dismissed the claim of heirship by an out-of-wedlock child as being filed outside the period of statute of limitations of Miss.Code Ann. Sec. 91-1-15(3)(c) (Supp.1988). Joyce Perkins, appellant, appeals this adverse ruling, claiming that her petition to administer her father's estate as his child and only heir at law was timely filed.

I.

Robert Taylor, a resident of Vicksburg, Warren County, died intestate on August 1, 1985. His wife, Arutha had died in 1961. No children resulted from this marriage, but Taylor was survived by two aunts, Lizzie Lee Thompson and Thelma Lee Newton and one uncle, Booker T. Lee, appellees herein. Joyce Perkins claimed to be the out-of-wedlock daughter of Robert Taylor. Perkins' birth certificate, however, showed her mother and father to be Louise and Ben Perkins, who were married. Joyce's date of birth was August 31, 1952. Louise Perkins filed for divorce from Ben Perkins in 1977 alleging that only one child, Ben Perkins, Jr., was born of their marriage; Joyce Perkins was not named as a child in the divorce proceeding.

Joyce Perkins contended that she was throughout her life recognized by Robert Taylor as his daughter. She exhibited correspondence from him signed as "Dad," a joint savings account in their names verified by bank records, a car as a graduation gift from college, and many other memorabilia from grade school and throughout her life. She testified that she visited and actually resided with various members of Robert Taylor's family. Additionally, Ben Perkins denied living with his wife, Louise, for the year preceding Joyce's birth and denied being Joyce's father. Louise Perkins admitted that Robert Taylor was the biological father of Joyce and that Joyce was conceived at a time when she was not living with Ben Perkins.

On the other hand, the aunts and uncle of Robert Taylor denied any acknowledgement by Robert Taylor to them of Joyce's paternity. Rather, they testified that Joyce was introduced as the "godchild" of Robert Taylor's mother, with whom Joyce resided for a period of time. Additionally, throughout her life, Joyce Perkins represented on her school records, social security records, passport, etc. that Ben Perkins was her father.

At the death of Robert Taylor, Joyce Perkins was present and took charge of the funeral arrangements with the knowledge of the other family members. The obituary notice and the funeral program listed Joyce Perkins as the daughter of Robert Taylor. The other family members were in attendance for the funeral and knew of this representation.

After Taylor's death, Joyce Perkins filed a petition to be named the administratrix of Taylor's estate, also claiming that she was his illegitimate daughter and sole heir. This petition and decree appointing her as administratrix of the estate was filed on August 6, 1985. As part of the requirements for her to be named administratrix of the estate, Ms. Perkins posted a bond underwritten by Western Surety Company in the amount of $200,000. Publication of notice to creditors began running in the Vicksburg Evening Post on August 23, 1985, continuing at weekly intervals through September 13, 1985.

Taylor's estate consisted of approximately $186,000.00 in personal property ($157,070.00 of which was cash in a safe deposit box) and real estate valued by appraisal at $104,100.00 as the first accounting filed February 11, 1986. The bulk of the real estate consisted of seven low income rental properties in poor condition, in some of which the decedent had only an undivided interest. Joyce Perkins, a resident of North Carolina, took possession of the real property and with the help of her mother, Louise Perkins, rented it and made repairs, commingling the income with the cash assets of the estate.

On or about August 9, 1985, the appellees, the aunts and uncle of Taylor, retained an attorney to represent them in the Taylor estate. The first attorney testified that he advised his clients that the estate was opened, but that he did not consider any adversary position to have been taken by Joyce Perkins since his clients had received no legal notice. The attorney initiated no action. Various proofs of heirship were filed in the estate by Joyce Perkins on December 12, 1985. On March 14, 1986, in an ex parte proceeding a decree naming Joyce Perkins the sole heir-at-law of Robert Taylor was entered, but the estate remained open pending receipt of closing letters from the Internal Revenue Service.

Sometime in July, 1986, Lizzie Lee Thompson, Booker T. Lee and Thelma Lee Newton, the aunts and uncle of Robert Taylor and the appellees herein, contacted a second attorney about representing them after it appeared that their prior counsel had done little or nothing on the case. On or about August 6, 1986, the appellees contacted their third counsel for representation. On August 29, 1986, the appellees filed a motion to intervene and stay proceedings in the Chancery Court of Warren County. On September 10, 1986, the chancery court issued two orders, one rescinding the order dated March 14, 1986 declaring Joyce Perkins the only heir-at-law, and the second granting to the appellees the right to intervene in the estate and to file a complaint.

On August 31, 1987 through September 4, 1987, the Chancery Court of Warren County heard testimony from approximately nineteen witnesses concerning the relationship between Robert Taylor and Joyce Perkins, i.e., whether Joyce Perkins was the illegitimate daughter of Robert Taylor. After hearing all the testimony presented, the chancery court issued an order which did not reach the actual question of whether Joyce Perkins was Robert Taylor's illegitimate daughter. Instead, the court ruled in favor of the appellees because it found that Joyce Perkins had not complied with the statutory scheme for the determination of descent among illegitimates. The trial court held that the appellant's claim was time barred for failure to comply with the provisions of Sec. 91-1-15(3)(c) Miss.Code Ann. (Supp.1988).

During trial, the attorney for Western Surety Company took an active role in assisting the attorneys for Joyce Perkins. The surety company was not made a party by either litigant. Following the trial, Western Surety Company was allowed by the court to file a cross-claim against Joyce Perkins for reimbursement as her surety for all reasonable and necessary attorney's fees and expenses which had been incurred by Western Surety Company in the defense of its interest and the interest of the principal (Ms. Perkins) at trial. Testimony was presented by several witnesses as to the reasonableness of the attorney's fees assessed against Ms. Perkins at trial. The reasonableness of the fees was not challenged by Perkins' attorney. Following this testimony, the chancellor awarded Western Surety Company a judgment against Joyce Perkins for total attorney's fees and expenses of $39,155.65.

Joyce Perkins filed this appeal asserting numerous assignments of error. However, only two of these assignments will be addressed in this opinion:

(1) Was Joyce Perkins time barred from establishing her heirship claim by Sec. 91-1-15, Sec. 91-1-27, and Sec. 91-1-29 Miss.Code Ann. (Supp.1988); and

(2) If the first assignment is answered in the affirmative, was Joyce Perkins properly assessed with attorney's fees and expenses in favor of Western Surety Company?

II.

Joyce Perkins claims to be the out-of-wedlock daughter of Robert Taylor. This claim of paternity could have been established during the lifetime of the father under the Uniform Law of Paternity, Sec. 93-9-1 et seq. Miss.Code Ann. (Supp.1988). These proceedings may be initiated by the child or any public authority chargeable by law with the support of the child, or, if instituted within one year of the child's birth, by the mother prior to July 1, 1989. (See Sec. 93-9-9). By Session Laws, 1989, HB 523, Chap. 438, effective July 1, 1989, paternity proceedings on behalf of a child shall not be instituted after the child has reached eighteen (18) years of age.

Yet another way to legitimate offspring may be followed under the adoption statute, Sec. 93-17-1 Miss.Code Ann. (Supp.1988) under which procedure the Chancery Court is authorized to make legitimate any living child of the petitioner not born in wedlock and to decree the offspring an heir of the petitioner. In the case at bar there was no paternity action, no adoption action, and no legitimation proceeding prior to the death of Robert Taylor.

Paternity hearings are very similar to heirship hearings in that the same ultimate fact has to be determined. The case before us is an heirship proceeding. Heirship proceedings are usually heard within the administration of estates, but this is not an absolute requirement. Estate of Smiley, 530 So.2d 18, 24-25 (Miss.1988). Statutory procedures governing heirship hearings are found at Miss.Code Ann. Sec. 91-1-27 and Sec. 91-1-29 (1972), which are as follows:

Sec. 91-1-27. How title to property acquired by descent may be made.

In all cases in which persons have died, or may hereafter die, wholly or partially intestate, having property, real or personal, any heir at law of such deceased person, or any one interested in any of the property as to which he shall have died intestate, may petition the chancery court of the county in which said deceased had his mansion house or principal place or residence, or in which any part of his real estate may be situated, in...