Prout v. Williams

• Decision Date: 18 January 2011
• Docket Number: No. 2009–CA–01099–COA.,2009–CA–01099–COA.
• Citation: 55 So.3d 195
• Parties: Olivia PROUT, Appellantv.Thelma WILLIAMS, Appellee.
• Court: Mississippi Court of Appeals

55 So.3d 195

Olivia PROUT, Appellant

v.Thelma WILLIAMS, Appellee.

No. 2009–CA–01099–COA.

Court of Appeals of Mississippi.

Jan. 18, 2011.

Robert O. Waller, Jackson, attorney for appellant.David Ringer, attorney for appellee.Before MYERS, P.J., GRIFFIS and BARNES, JJ.BARNES, J., for the Court:

¶ 1. This appeal involves the determination of the heirs at law of Floyd McIntosh. Floyd died intestate, survived by his widow, Cora Badgett McIntosh. Della Mae McIntosh is Floyd's daughter, who was born out of wedlock before Floyd married Cora and who predeceased Floyd. Regarding the parties to this appeal, Olivia Prout is one of Della's five children, and Thelma Williams is Cora's niece and one of the heirs named in Cora's will.

¶ 2. Williams filed a petition to adjudicate heirship in the Chancery Court of Simpson County after Della's children filed a lawsuit claiming that they, as Della's surviving heirs, should receive an interest in Floyd's estate. The chancery court determined that Floyd never adopted Della and that during her lifetime, Della did not establish paternity; therefore, Floyd's sole heir was Cora. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 3. In 1926, Della was born out of wedlock to Floyd McIntosh and Cletho Maheffay in Simpson County, Mississippi. The couple never married, and Della was their only child. On April 9, 1975, Della died intestate. She was survived by her father, Floyd, and her five children from two marriages: Olivia Prout, Linda Prout, Carolyn Prout, Edward Marvin, and Dwight Marvin. On August 1, 1979, Floyd died intestate. He was survived by his widow, Cora. No children were born of their marriage, and Cora bore no children during her lifetime.

¶ 4. Regarding Della's right to inherit from Floyd, in 1981, the Mississippi Legislature amended the Mississippi Code of 1972 and adopted section 91–1–15, thereby providing a means by which an illegitimate child could inherit through his or her natural father by the laws of descent and distribution, provided that: (1) the natural parents married before the child's birth; (2) there had been an adjudication of paternity or legitimacy before the death of the intestate; or (3) there had been an adjudication of paternity after the death of the intestate. Miss.Code Ann. § 91–1–15(3)(a)–(c) (Supp.1983 and 2010). For the latter action, an adjudication of paternity must be made within one year of the death of the intestate or within ninety days after the first publication of notice to creditors, whichever is less. Miss.Code Ann. § 91–1–15(3)(c) (Supp.1983 and 2010). Section 91–1–15(3) also created a three-year “catch-up period” from July 1, 1981, to July 1, 1984, when illegitimates could maintain actions to establish rights in estates where the decedent had died prior to July 1, 1981. Robert Weems, Mississippi Practice Series: Wills and Administration of Estates in Mississippi § 1:10 (3d ed.2003). Section 91–1–15's provisions thus apply to Olivia's claim since Floyd died in August 1979. However, there was no adjudication of Floyd's heirs before his death or within the time prescribed by statute following his death. On July 1, 1984, the statutory three-year catch-up period of section 91–1–15(3) expired for any possible illegitimates of Floyd to maintain an action to establish rights to his estate.

¶ 5. On May 16, 1983, Cora deeded one acre of property in Simpson County to Loyal Smith by warranty deed, which was duly recorded in the land records of Simpson County. In November 1994, Cora died testate. Williams was one of the beneficiaries of Cora's will. Olivia now claims that Cora's conveyance in 1983 constituted fraudulent concealment because Cora did not have full ownership of the property: Floyd's interest in the property was conveyed without notice or compensation to the heirs of Floyd, and Cora did not determine Floyd's heirs at law. Additionally, Olivia claims Cora improperly conveyed the remaining interest in the property through her will to Williams and Williams's two children. Olivia concludes that Cora acted as an administratrix ¹ de son tort and tolled any statute of limitations.

¶ 6. On September 15, 2008, Williams filed a petition for adjudication of heirship. Named as defendants were the known and unknown heirs of Floyd and Della and also Della's five children (Olivia, Linda, Carolyn, Edward, and Dwight). The petition was filed in response to a lawsuit filed in chancery court by Della's five children, which claimed that since Della died intestate, they are her surviving heirs; therefore, they should receive Della's share of Floyd's estate. In Williams's petition, however, she claimed that the time for which illegitimates might assert their status as heirs at law had passed according to the statute of limitations provided in section 91–1–15(3)(c). In March 2009, the chancellor held a hearing to determine Floyd's heirs at law. Olivia, Williams, and Helen McIntosh O'Neil (Floyd's niece) testified.

¶ 7. On June 17, 2009, the chancellor issued a final judgment, finding that Floyd never adopted Della, and Della never established paternity during her lifetime; therefore, Floyd's sole heir-at-law was Floyd's widow, Cora. Olivia timely filed a notice of appeal.

STANDARD OF REVIEW

¶ 8. A limited standard of review is applied to appeals from chancery court. Miller v. Pannell, 815 So.2d 1117, 1119 (¶ 9) (Miss.2002). It is well established that an appellate court “will not disturb the factual findings of a chancellor unless such findings are manifestly wrong or clearly erroneous.” Estate of Dykes v. Estate of Williams, 864 So.2d 926, 930 (¶ 9) (Miss.2003). “If there is substantial evidence to support the chancellor's findings of fact, those findings must be affirmed.” Id. Questions of law are reviewed de novo. Id. For an illegitimate to recover as an heir of a decedent's estate, he or she must prove that heirship exists by clear and convincing evidence. In re Estates of Davidson, 794 So.2d 261, 265 (¶ 10) (Miss.Ct.App.2001) (citing Miss.Code Ann. § 91–1–15(3)(c) (Rev.1994)).

ANALYSIS OF THE ISSUES

¶ 9. Olivia raises two issues. First, Olivia claims the chancery court erred in ruling that Della was not legitimized during Della's lifetime to be Floyd's daughter and that the sole heir of Floyd is Cora. Second, Olivia argues that Cora acted as an administratrix de son tort when she executed and delivered the 1983 warranty deed, thereby tolling any statute of limitations for the legitimization of Floyd's heirs at law. We shall discuss each issue in turn.

1. Whether Cora was the Sole Heir–at–Law of Floyd.

¶ 10. Olivia claims that the chancery court erred in ruling that Della did not previously establish Floyd's paternity during Della's lifetime; thus, Floyd's sole heir at law was his widow, Cora. Olivia maintains that Della's paternity was established prior to Della's and Floyd's deaths by the issuance of a document for Della in July 1965 entitled “Delayed Certificate of Birth” which Floyd had signed on November 14, 1964. Additionally, Olivia claims that Floyd acknowledged Della as his daughter throughout his lifetime by his “spoken words and actions.” Olivia further contends that the current heirship proceeding provided clear and convincing evidence that Della was Floyd's daughter even if the chancery court was correct in determining that Della did not establish paternity prior to Della's or Floyd's death.

¶ 11. It is undisputed that section 91–1–15(3) is the controlling statute. It reads in pertinent part:

An illegitimate shall inherit from and through the illegitimate's natural father and his kindred ... according to the statutes of descent and distribution if:

(a) The natural parents participated in a marriage ceremony before the birth of the child, even though the marriage was subsequently declared null and void or dissolved by a court; or

(b) There has been an adjudication of paternity or legitimacy before the death of the intestate; or

(c) There has been an adjudication of paternity after the death of the intestate, based upon clear and convincing evidence, in an heirship proceeding under Sections 91–1–27 and 91–1–29. However, no such claim of inheritance shall be recognized unless the action seeking an adjudication of paternity is filed within one (1) year after the death of the intestate or within ninety (90) days after the first publication of notice to creditors to present their claims, whichever is less.... This one-year limitation shall be self-executing and may not be tolled for any reason, including lack of notice. If an administrator is appointed for the estate of the intestate and notice to creditors is given, then the limitation period shall be reduced to ninety (90) days after the first publication of notice, if less than one (1) year from the date of the intestate's death; provided actual, written notice is given to all potential illegitimate heirs who could be located with reasonable diligence.

.... A remedy is hereby created in favor of all illegitimates having any claim existing prior to July 1, 1981, concerning the estate of an intestate whose death occurred prior to such date by or on behalf of an illegitimate or an alleged illegitimate child to inherit from or through its natural father and ... shall be brought within three (3) years from and after July 1, 1981, and such time period shall run notwithstanding the minority of a child.

Miss.Code Ann. § 91–1–15(3) (Supp.2010).

¶ 12. Olivia claims that because Floyd acknowledged Della as his daughter by executing her delayed birth certificate in 1964, when Della was thirty-nine years of age, Floyd met his burden of “adjudicating” Della's paternity before his death under section 91–1–15(3)(b). We disagree. The delayed birth certificate is insufficient to meet the requirements for adjudication of paternity before the death of the intestate; thus, it does not toll the time period for Della to adjudicate heirship under section 91–1–15(3). “Ad...