Tew v. Estate of Doe
| Docket Number: | 2002-CA-00969-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 11-06-2003 Opinion Author: Graves, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Wills & estates - Executrix de son tort - Constitutionality of section 91-1-15 (3)(c) - M.R.C.P. 24(d) Judge(s) Concurring: Pittman, C.J., Smith, P.J., Waller, Cobb, Easley and Carlson, JJ. Non Participating Judge(s): Diaz, J. Concurs in Result Only: McRae, P.J. Procedural History: Bench Trial Nature of the Case: CIVIL - WILLS, TRUSTS AND ESTATES |
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| Trial Court: |
Date of Trial Judgment: 05-13-2002 Appealed from: Neshoba County Chancery Court Judge: John Love, Jr. Disposition: The chancellor found that the Appellant had failed to comply with the requirement of § 91-1-15 (3)(c) in that he had taken no action to be declared the father of Jane Doe within one year of her death. Case Number: 2001-214 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Bradley Tew |
JAMES A. WILLIAMS
EDWARD NICHOLAS KRAMER, III |
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| Appellee: | Estate of Infant Jane Doe, Deceased | STEVEN DETROY SETTLEMIRES |
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| Topic: | Wills & estates - Executrix de son tort - Constitutionality of section 91-1-15 (3)(c) - M.R.C.P. 24(d) |
| Summary of the Facts: | Unborn infant Jane Doe was killed along with her mother, Jennifer Smith, in an automobile accident. A Petition to Determine Heirs was filed by the Administratrix of the Estate of Jane Doe, Sharmyn Parker, who is the maternal Aunt of Jane Doe. The chancellor adjudicated that Bradley Tew was the natural father of Jane Doe but concluded that Tew had failed to comply with the requirement of section 91-1-15 (3)(c) in that he had taken no action to be declared the father of Jane Doe within one year of her death. Tew appeals. |
| Summary of Opinion Analysis: | Issue 1: Executrix de son tort Tew argues that the chancellor erred in finding that the administratrix was not de son tort since she knew of the wrongful death claim of Jane Doe and wilfully concealed it and that he should be excused from the statutory period because of the administratrix’s conduct. Section 91-1-15 (3)(c) provides that the right of the natural father of an illegitimate to inherit shall not be recognized unless the action seeking adjudication of paternity is filed within one year after the death of the intestate. However, an exception exists where a person who is attempting to take from the estate of the intestate intermeddles with the assets of the estate and/or assumes the role of administratrix without legal authority qualifies as an executrix de son tort. Here, there was no evidence that Parker took any action with respect to the assets of the estate of Jane Doe. Issue 2: Constitutionality of statute Tew argues that section 91-1-15(3)(c) is unconstitutional in that the one-year limitation for paternity is a suspect classification. Tew failed to comply with M.R.C.P. 24(d) which requires that a party challenging the constitutionality of a statute give notice to the Attorney General. |
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