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IN THE MATTER OF THE ESTATE OF EARL B. KIMBLE, DECEASED DARLENE LARSEN v. MABLE L. KIMBLE

MARCH 07, 1984

IN THE MATTER OF THE ESTATE OF EARL B. KIMBLE, DECEASED DARLENE LARSEN
v.
MABLE L. KIMBLE



EN BANC

DAN M. LEE, JUSTICE, FOR THE COURT:

This is an appeal from the Chancery Court of Copiah County wherein the chancellor sustained a motion to dismiss two separate petitions of Darlene Larsen prior to an evidentiary hearing, on the merits of those petitions. On October 20, 1981, Darlene Larsen, the appellant, filed two petitions in the Chancery Court of Copiah County. The first was a petition to determine the heirs of Earl B. Kimble; the second, a petition to reopen the estate of Earl B. Kimble. Larsen's petitions alleged that her mother was Earl Irene Stuart Kimble, the illegitimate daughter of Edith Stuart and Earl B. Kimble. Edith Stuart and Earl B. Kimble were never married. Earl B. Kimble subsequently married Mable Little Kimble, the appellee, on August 30, 1932. Earl Irene Stuart Kimble died in Nevada on September 9, 1976. Earl B. Kimble died on May 29, 1980, survived only by Mable Kimble, his widow, and Darlene Larsen, his alleged granddaughter. Following the consolidation and dismissal of her causes of action, Darlene Larsen now brings this appeal and assigns that dismissal as error. We reverse.

Earl B. Kimble's estate was opened in the Chancery Court of Copiah County on June 24, 1980, and closed on October 6, 1980. Mable Kimble was appointed the administratrix of the estate and all property therein was distributed to her. In her petition, Darlene Larsen alleged that as the daughter of Earl B. Kimble's illegitimate daughter, Earl Irene Stuart Kimble, she was entitled to share in his estate. Larsen first sought to prove the paternity of her mother, Earl Irene Stuart Kimble, and then assert a claim to Earl B. Kimble's estate through her mother.

 There are two questions presented by this appeal: Whether the offspring of an illegitimate can sue to determine her heirship descending from the father of her illegitimate mother and if so, whether the instant suit was timely filed. Based on the following discussion of relevant authorities, we answer both questions in the affirmative.

 In 1977, the United States Supreme Court handed down

 its decision in Trimble v. Gordon, 430 U.S. 762, 97 S. Ct. 1459, 52 L.Ed.2d 31 (1977). This decision is of profound importance to illegitimates who wished to assert their right to inherit from intestate fathers. The Court there held that an Illinois statute which prohibited an illegitimate from inheriting from his intestate father unless the father had acknowledged the child and the child had been legitimated by marriage of the parents was an unconstitutional denial of equal protection. The Court noted that there may be problems associated with giving illegitimates an equal right to inherit from an intestate father. Among these problems were the difficulty of proving paternity and the associated danger of false claims against the estate. The Trimble decision stated that these problems" might justify more demanding standards for illegitimates claiming under their father's estates from that required either for illegitimate children claiming under their mother's estates or for legitimate children generally. "Trimble, 430 U.S. at 770, 97 S. Ct. at 1459, 52 L.Ed.2d at 39.

 The very next year (1978) in Lalli v. Lalli, 439 U.S. 259, 99 S. Ct. 518, 58 L.Ed.2d 503 (1978), the Supreme Court again addressed the right of illegitimates to inherit and the effect of a New York statute which required an adjudication of paternity prior to the death of the father. In Lalli, the Court held that New York's requirement that an order of filiation be made during the lifetime of the father had a rational relation to the state's interest in providing for the just and orderly disposition of property at death.

 In 1981, our legislature responded to the constitutional mandate articulated in Trimble v. Gordon. At that time 91-1-15 Miss. Code Ann. was rewritten to provide illegitimates with the right to inherit from an intestate father. Under the 1981 amendment an illegitimate could inherit from and through the illegitimate natural father and his kindred if one of three things happened: The natural parents participated in a marriage ceremony before the birth of the child; or there had been an adjudication of paternity or legitimacy before the death of the intestate; or there had been an adjudication of paternity after the death of the intestate if the action seeking the adjudication of paternity was filed within one year after the death of the intestate or within ninety (90) days after the first publication notice to creditors, whichever is less. *fn1 91-1-15 (2) Miss. Code Ann. (Supp. 1981). For purposes of clarity we set out the entire 1981 amendment below:

 SECTION 1. Section 91-1-15, Mississippi

 Code of 1972 is amended as follows:

 91-1-15 (1) An illegitimate shall inherit from and through the illegitimate's mother and her kindred, and the mother of an illegitimate and her kindred shall inherit from and through the illegitimate according to the statutes of descent and distribution. However, if an illegitimate shall die unmarried and without issue, and shall also predecease the natural father, the natural mother or her kindred shall not inherit any part of the natural father's estate from or through the illegitimate. In the event of the death of an illegitimate, unmarried and without issue, any part of the illegitimate's estate inherited from the natural father shall be inherited according to the statutes of descent and distribution.

 (2) An illegitimate shall inherit from and through the illegitimate's natural father and his kindred, and the natural father of an illegitimate and his kind shall inherit from and through the illegitimate 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; and such time period ...


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