Prout v. Williams
| Docket Number: | 2009-CA-01099-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 01-18-2011 Opinion Author: Barnes, J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Wills & estates - Sole heir-at-law - Paternity - Section 91-1-15(3) - Statute of limitations - Executrix de son tort Judge(s) Concurring: King, C.J., Lee, P.J., Myers, P.J., Irving, Griffis, Ishee, Roberts and Maxwell, JJ. Dissenting Author : Carlton, J. Procedural History: Bench Trial Nature of the Case: CIVIL - WILLS, TRUSTS AND ESTATES |
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| Trial Court: |
Date of Trial Judgment: 06-17-2009 Appealed from: Simpson County Chancery Court Judge: J. Larry Buffington Disposition: Cora Badgett McIntosh found to be sole heir of Floyud McIntosh |
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| Party Name: | Attorney Name: | |||
| Appellant: | Olivia Prout |
ROBERT O. WALLER |
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| Appellee: | Thelma Williams | DAVID RINGER |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Wills & estates - Sole heir-at-law - Paternity - Section 91-1-15(3) - Statute of limitations - Executrix de son tort |
| Summary of the Facts: | Floyd McIntosh 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. 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. Williams filed a petition to adjudicate heirship 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. Prout appeals. |
| Summary of Opinion Analysis: | Issue 1: Sole heir-at-law Prout argues that 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. She 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, she claims that Floyd acknowledged Della as his daughter throughout his lifetime by his “spoken words and actions.” Section 91-1-15(3) is the controlling statute. Prout 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). However, 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). “Adjudicate” means “[t]o settle in the exercise of judicial authority.” The only judicial proceeding regarding Floyd’s heirship was filed by Williams in 2008, well after Floyd had died. The delayed birth certificate has no legal effect on how illegitimates become heirs at law; Title 91 of the Mississippi Code does not mention usage of birth certificates to “adjudicate” paternity. Furthermore, the delayed birth certificate does not meet the requirements of a “voluntary acknowledgment” of paternity by Floyd either. Prout did not show that the three instances were met under section 91-1-15(3) whereby an illegitimate and her kindred may inherit under the laws of descent and distribution. It is undisputed that Floyd and Cletho never married. Further, there was no “adjudication of paternity or legitimacy” either before Floyd’s death as Prout argues in this issue or after the death of Floyd within the statutory time limits. Thus, any claim of heirship by Della or her heirs is time-barred. Issue 2: Statute of limitations Prout argues that the statute of limitations under section 91-1-15(c) was tolled by Cora’s execution of the 1983 warranty deed. She maintains that Cora fraudulently concealed this conveyance and the heirship interest in Floyd’s estate, thereby wrongfully taking all of the proceeds from the sale of the property to the disadvantage of Floyd’s heirs. An executrix de son tort is generally a person who presumes to act on behalf of an estate but without authority. A person is considered an executor de son tort if he takes part in any intermeddling with the estate of a decedent under a claim of authority or any act characteristic of the office of a rightful executor or which evinces legal control such as taking possession of the assets without administration and controlling the property as if the taker were the legal representative. Prout did not raise this argument before the chancery court; therefore, she is barred from raising it as an issue on appeal. In addition, Cora or any interested party had no reason to investigate the possible illegitimate heirs of Floyd at the time of his death in 1979 because, at that time, the laws of Mississippi did not allow illegitimates to inherit from their father or his kindred by the laws of descent and distribution. Also, none of Cora’s actions in the record indicate she was acting as an administratrix de son tort regarding Floyd’s estate. |
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