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VANCE WITT, SUCCESSOR ADMINISTRATOR OF THE ESTATE OF FRANCES MITCHELL MAYES, DECEASED, ET AL v. MARK MITCHELL

SEPTEMBER 07, 1983

VANCE WITT, SUCCESSOR ADMINISTRATOR OF THE ESTATE OF FRANCES MITCHELL MAYES, DECEASED, ET AL
v.
MARK MITCHELL



ON PETITION FOR REHEARING

EN BANC

DAN LEE, JUSTICE, FOR THE COURT:

This matter is presented to us by the appellee's petition for rehearing following our decision handed down March 30, 1983. Finding merit in appellee's petition, we hereby withdraw our previous decision and issue this as the opinion of the Court.

 This appeal originated in the Chancery Court of Union County wherein Mark Mitchell, appellee, filed his amended petition to notify of heirship in the estate of Frances Mitchell Mayes, deceased. His mother was Gussie Wright, who lived on the estate of George Mitchell. Appellee alleged in his petition that his father was Mark L. Mitchell, the son of George Mitchell. Mark L. Mitchell was committed to the State Mental Hospital at Jackson in 1918 where he subsequently died in 1962. Mrs. Frances Mitchell Mayes, the sister of Mark L. Mitchell, died intestate on October 17, 1973, without children or lineal descendants. She was survived by one sister, Mrs. Ethel Mitchell Montgomery, her brothers Mark L. and Louie having predeceased her. Louie Mitchell died intestate and his estate was administered by the Chancery Court of Union County in Cause No. 2136. Letters of administration were issued on August 18, 1919. He was never married and had no lineal descendants. Appellee therefore sought one-half of the Mayes estate, which is estimated to be of the value of approximately $1,000,000.

 At the conclusion of a rather lengthy hearing, the chancellor found that Gussie Wright and Mark L. Mitchell were never married, either ceremonially or by common law. However, based on the evidence, the chancellor found that appellee was the illegitimate son of Mark L. Mitchell. The chancellor held that Mississippi Code Annotated section 91-1-15 (1972), in effect prior to the amendment of April 1, 1981, which barred an illegitimate child from inheriting from or through his intestate father unless the father married the mother and acknowledged the child, was unconstitutional in light of Trimble v. Gordon, 430 U.S. 762, 97 S. Ct. 1459, 52 L.Ed.2d 31 (1977). The chancellor further held that Trimble should be given retroactive application to the death of Mrs. Frances Mitchell Mayes.

 Mark L. Mitchell was born in 1883. Records from the Mississippi State Hospital showed he was admitted as a patient on April 22, 1918, and remained there until his death on August 22, 1962. It was believed at that time that Mitchell had never married nor that he had any lineal descendants. Although the records disclosed that Mark L. Mitchell was continuously institutionalized from 1918 until his death, the evidence disclosed, as will be shown, that he was seen in Union County as late as 1926. The court records reflected that Mark L. Mitchell was declared a lunatic and his sisters, Frances and Ethel, were appointed his guardians on June 2, 1924. On August 23, 1974, Ethel died testate and her will is being probated in the Chancery Court of Union County in Cause No. 9417.

 On January 21, 1980, appellee filed his petition, which was subsequently amended on April 15, 1980, alleging he was entitled to one-half of the Mayes estate estimated to be of the value of approximately $1,000,000. At that time the estates of both Frances and Ethel remained open. The successor administrator of Frances' estate, the executor of Ethel's estate and the remainder beneficiaries of Ethel's will and their assigns were named as defendants to appellee's petition.

 The proof showed appellee was born in Union County on October 26, 1918. His mother was Gussie Wright, a sharecropper's daughter who lived with her parents and brothers and sister on a farm owned by George Mitchell, Mark L. Mitchell's father. Throughout his life, as reflected by various records, his relatives and other acquaintances, appellee had been known as Mark Louie Mitchell and Mark George Mitchell. Appellant's middle names were allegedly derived from Louie Mitchell and George Mitchell, Mark L. Mitchell's brother and father.

 The general reputation in the community was that Mark L. Mitchell was appellee's father. Gussie Wright also told various people that Mark L. Mitchell was appellee's father and that she and Mark had been secretly married. There was evidence that upon learning of Gussie's pregnancy, Gussie's mother visited George Mitchell who thereafter paid Mrs. Wright $15 a month for support of appellee. There was also evidence that appellee visited in the George Mitchell household, calling George Mitchell grandpa, and Ethel and Frances, Aunt Ethel and Aunt Fan. On one of these visits, in approximately 1923 or 1924, George Mitchell gave appellee a picture of Mark L. Mitchell and told him it was his father. This picture was produced at trial.

 The general reputation in the community was that Mark L. Mitchell was seen sporadically in Union County until approximately 1926, although the records from the state hospital reflected his continuoud confinement since 1918. During this time, Mark L. Mitchell frequently visited the Wrights. Also, in the late 1920's, Gussie had two more children who also went by the Mitchell name. Mark L. Mitchell, however, was never seen again in Union County following an alleged incident in 1926, when he poured motor oil over Frances' furniture.

 Witnesses for the appellant, who were mostly third cousins of Frances, asserted they had never heard of appellee or any children of Mark L. Mitchell during family discussions. Mary Bean Lambert, who lived with Frances for about one year in 1926, asserted she never saw or heard appellee's name mentioned. She also denied any knowledge of the alleged motor oil incident. Evidently, the only thing that was ever said of Mark L. Mitchell was that he had been committed to the state mental hospital. When it was suggested to Frances that she prepare a will following her husband's death, she replied a will would not be necessary because Ethel was her only living relative.

 DID THE CHANCELLOR ERR IN DECIDING THE CAUSE ON A THEORY NOT IN ISSUE UNDER THE PLEADINGS?

 Appellee in his original petition and amended petition alleged that he was the son of Mark L. Mitchell, deceased, and the nephew of Frances, deceased. Appellants entered a general denial thereto. Nowhere in appellee's petition or amended petition did he allege to be the illegitimate son of Mark L. Mitchell nor did he attack the constitutionality of Mississippi Code Annotated section 91-1-15 (1972). In fact, ...


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