Smith By and Through Young v. Estate of King, 07-CA-59300

• Decision Date: 24 April 1991
• Docket Number: No. 07-CA-59300,07-CA-59300
• Citation: 579 So.2d 1250
• Parties: Michelle Leigh SMITH By and Through her Mother and Next Friend, Sherry Haynes YOUNG v. ESTATE OF Leslie Clifton KING, Deceased, Darlene Aroujo King, Admrx.
• Court: Mississippi Supreme Court

Page 1250

579 So.2d 1250

Michelle Leigh SMITH By and Through her Mother and Next Friend, Sherry Haynes YOUNG v. ESTATE OF Leslie Clifton KING, Deceased, Darlene Aroujo King, Admrx.

No. 07-CA-59300.

Supreme Court of Mississippi.

April 24, 1991.

Daniel H. Fairly, Wells Wells Marble & Hurst, Jackson, for appellant.

W. Rayford Jones, Jones Jones & Jones, Gulfport, for appellee.

En Banc.

SULLIVAN, Justice, for the Court:

This cause comes on appeal before this Court for the second time. The first time we heard this case we found that an administrator is under an affirmative duty to disclose to the court the existence of known potential heirs and claimants. Smith By and Through Young v. Estate of King, 501 So.2d 1120, 1123 (Miss.1987) (hereinafter Estate of King I ). We then remanded the cause to the chancery court for a new trial to determine whether the court must set aside the final decree distributing the assets, adjudicating the heirs and closing the estate on grounds of fraud because the illegitimate child's existence was not disclosed to the court.

Following the mandate of Estate of King I the chancellor at the conclusion of the second trial determined that the evidence failed to show that a fraud had been perpetrated on the court. The chancellor indicated that it was the illegitimate child's mother's duty to make the paternity issue known to the administratrix:

[W]hen a fraud is perpetrated, it has to be of such a nature that the whole matter reeks with it and I don't find that this does. Apparently a secret was kept about the child and I find that it was more further kept from Mrs. King, the administratrix, than from anyone else....

Unhappy with the trial court's adjudication, Smith appeals to this Court. The assignment of error addressed by this Court is:

Whether the trial court erred in finding that no fraud was perpetrated on the court by the administratrix's omission to tell the court of a potential heir.

Though not raised by Smith on appeal, we are compelled to address a constitutional error not raised by Smith but of sufficient gravity for us to notice it pursuant to Rule 28(a)(3), Miss.Sup.Ct.R. The error is:

Whether an administrator is required to provide actual notice to known or reasonably ascertainable illegitimate children who are potential heirs and whose claims would be barred by the running of the ninety (90) day period under Miss.Code Ann. Sec. 91-1-15(3)(c) (Supp.1990).

I.

DID THE TRIAL COURT ERR IN FINDING THAT NO FRAUD WAS

PERPETRATED ON THE COURT BY THE ADMINISTRATRIX'S

OMISSION TO TELL THE COURT OF A

POTENTIAL HEIR?

Our review of the chancellor's findings of fact is limited. We will reverse only if the findings are clearly erroneous and not supported by substantial, credible evidence in the record. Estate of Robinson v. Gusta, 540 So.2d 30, 33 (Miss.1989).

Miss.Code Ann. Secs. 91-1-27 and -29 (1972), require that paternity be established before an illegitimate can inherit by intestate succession. Estate of Robinson v. Gusta, 540 So.2d 30, 33 (Miss.1989); Paschall v. Estate of Smiley, 530 So.2d 18, 25 (Miss.1988). There is no dispute that Michelle Smith did not have her paternity adjudicated in an heirship proceeding under Miss.Code Ann. Secs. 91-1-27 and -29 within ninety (90) days after the first publication to creditors as required by Miss.Code Ann. Sec. 91-1-15(3)(c). ¹ Estate of King I, 501 So.2d at 1122. Nor is there any dispute that both Mrs. King, the administratrix, and her attorney were aware that Michelle Leigh Smith could be an illegitimate child of the deceased, and that they omitted bringing this fact to the attention of the court during the probate proceedings because they did not believe Michelle Smith was an heir.

Mrs. King testified that her husband, the decedent, told her that he had sexual relations with Sherry Young, Michelle Smith's mother, one time and that Mrs. Young told him that the child, Michelle Smith, was his. He further told Mrs. King that he had never legitimized the child because he was not sure and did not believe that Michelle was his child. He did tell Mrs. King that he sent money to the child's mother on a few occasions. However, Mrs. King stated that this occurred before he married Mrs. King and it was not on a regular basis or for child support.

The decedent's sister, Mrs. Roberts, testified that she went with Mrs. King and her mother to their attorney's office a few days after the decedent's death. She told them that Michelle was her brother's daughter. At this meeting the attorney discussed with Mrs. Roberts the fact that legally Michelle's mother's now ex-husband, Mr. Smith, was the father of Michelle because Michelle's mother was married to him when Michelle was born. Mrs. Roberts pointed out that an exception in law existed whereby "if it is physically impossible for the husband to be the father then the law does not apply." ² The attorney also asked whether the sister knew of any petition or any legal action that established Mr. King as the father of Michelle.

Michelle's mother, Sherry Young, also contacted Mrs. King's attorney in May 1983, one month after the decedent's death and prior to the running of the ninety (90) day bar. She testified that she called his office and told him she was calling about the estate of Leslie Clifton King, the father of her child. The attorney told her he was not aware of this knowledge, but if Mrs. Young would bring him a birth certificate he would help her. ³

The fact that Michelle's mother did not directly disclose to Mrs. King that Michelle was the daughter of the deceased is irrelevant under the circumstances of this case because both Mrs. King and her attorney knew of the child's existence and potential right of inheritance. As administratrix, Mrs. King was under a duty to use reasonable diligence to ascertain potential heirs and to file the names of such heirs in the final account. Miss.Code Ann. Sec. 91-7-293 (1972); Estate of King I, 501 So.2d at 1123. In this case the administratrix and her attorney determined that Michelle Smith was not an heir and forwent having the court adjudicate the heirs until the administratrix sought a final distribution of the deceased's assets on August 9, 1983, at which time Michelle's claim was barred due to the expiration of the ninety (90) day nonclaim statute.

We recognize that an administratrix "is the arm of the court employed under the law to collect and distribute the estate of the deceased...." In re Will of Hughes, 241 Wis. 257, 5 N.W.2d 791, 794 (1942). Moreover, she is a fiduciary to both the decedent's creditors and his heirs. Estate of King I, 501 So.2d at 1122; Shepherd v. Townsend, 249 Miss. 383, 392, 162 So.2d 878, 881, 10 A.L.R.3d 538, error overruled 249 Miss. 383, 163 So.2d 746 (1964). The difficulty we have with the chancellor's decision that no fraud was perpetrated on the court is that in this case Mrs. King claimed to be the sole heir at law and benefited from her silence regarding the existence of Michelle Smith. Cf. Tulsa Professional Collection Serv. v. Pope, 485 U.S. 478, 489, 108 S.Ct. 1340, 1347, 99 L.Ed.2d 565 (1988). We note that some foreign courts addressing similar issues have found that an executor's or administrator's failure to diligently search out heirs or to notify the court of potential heirs' existence is committing fraud. See e.g., Stevens v. Torregano, 192 Cal.App.2d 105, 13 Cal.Rptr. 604, 616 (Cal.App. 1 Dist.1961) (though an executor had no duty to search out unknown heirs, to withhold information of a known heir constituted fraud because an executor is a fiduciary); In re Bailey's Estate, 205 Wis. 648, 238 N.W. 845, 848 (1931) (an omission by the administratrix of the existence of an illegitimate child who the administratrix believed was not an heir, constituted passive, if not active, fraud sufficient to sustain a revision of the order of distribution).

Rather than proceed judicially to get an adjudication of heirship prior to the running of the nonclaim statute, Mrs. King intentionally chose not to reveal the existence of Michelle Smith to the court relying on her and her attorney's determination that Michelle Smith was not an heir. Under the particular facts of this case we have no difficulty reaching the conclusion that the trial court erred in determining that the administratrix and her attorney did not perpetrate a fraud on the court. We find that Mrs. King's violation of her duty as administratrix which benefited her as an heir at law perpetrated a fraud on the court.

In reversing the chancellor's decision, we must set aside the final decree of distribution. This alone, however, is insufficient to provide Michelle Smith the remedy she seeks. Michelle still must meet the requirements of Miss.Code Ann. Sec. 91-1-15(3)(c) (Supp.1990).

II.

IS THE ADMINISTRATRIX REQUIRED TO PROVIDE ACTUAL NOTICE TO

KNOWN OR REASONABLY ASCERTAINBABLE ILLEGITIMATE CHILDREN WHO

ARE POTENTIAL HEIRS AND WHOSE CLAIMS WOULD BE BARRED BY THE

RUNNING OF THE NINETY (90) DAY PERIOD UNDER THE NONCLAIM

STATUTE, MISS.CODE ANN. Sec. 91-1-15(3)(c) (Supp.1990)?

Not only did the administratrix fail to notify the court of Michelle Smith's existence, but she further failed to notify Michelle Smith that her right to be adjudicated an heir would be terminated in ninety (90) days under the nonclaim statute which began running when the administratrix published notice to creditors. We take notice of the fact that Michelle Smith did file within the one (1) year self-executing period which ran from the date of her father's death. Further, we recognize that to deny an illegitimate the right to institute heirship proceedings when the child, of whose existence the administratrix was aware, had no knowledge that the administratrix published notice to creditors is a harsh result which we do not look upon favorably.

In Perkins v. Thompson, 551 So.2d 204 (Miss.1989), we held that an illegitimate child seeking to be appointed administratrix and...