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ALBERT & BRIDGET JONES, MINORS, BY MOTHER & NEXT FRIEND, ALBERTINE JONES & BARBARA JONES v. PATRICIA R. HARRIS

NOVEMBER 14, 1984

ALBERT & BRIDGET JONES, MINORS, BY MOTHER & NEXT FRIEND, ALBERTINE JONES & BARBARA JONES
v.
PATRICIA R. HARRIS, SECRETARY, DEPARTMENT OF HEALTH & HUMAN SERVICES



BEFORE WALKER, HAWKINS AND PRATHER

WALKER, PRESIDING JUSTICE, FOR THE COURT:

This cause is certified by the United States Court of Appeals for the Fourth Circuit pursuant to Rule 46 of the Rules of the Supreme Court of Mississippi which provides:

When it appears to the Supreme Court of the United States, or to any circuit court of appeals of the United States, that there are involved in any proceedings before it questions or propositions of law of this state which are determinative of said cause independently of any other questions involved in said case and that there are no clear controlling precedents in the decisions of the Supreme Court of this State, such federal court before rendering a decision may certify such questions or propositions of law of this state to the Supreme Court of Mississippi for rendition of aJudgment or opinion concerning such questions or propositions of Mississippi law. This Court may, in its discretion,

 decline to answer the questions certified to it. (August 1, 1980).

 The question certified is stated as follows:

 Accepting that there is such differentiation as between legitimate children on the one hand and illegitimate children on the other hand in the applicable Mississippi statutory provisions governing rights of inheritance (compare Miss. Code 91-1-15 of Trusts and Estates Title, Descent and Distribution Chapter with 91-1-3 and 91-1-11), as to render the less favorable treatment of illegitimate children unconstitutional and void, does the law of the State of Mississippi call for interpretation of the Mississippi statutes governing descent and distribution or common law to apply and extend to illegitimate children the benefits available to legitimate children, or would Mississippi achieve that result only by virtue of Federal constitutional imperative?

 The underlying case concerns a claim for surviving children's insurance benefits under the Social Security Act. Under the provisions of 42 U.S.C. 416 (h)(2)(A) a child whose parents were not married qualifies as a dependent of his father if he would be entitled to share in the intestate estate of his father according to" such law as would be applied in determining the devolution of intestate personal property by the Courts of the State in which he [the insured] was domiciled at the time of his death. . . . "(Emphasis added).

 The three children involved are Maryland residents. The putative father was at the time of his death in April 1975 a Mississippi domiciliary. Albertime Jones initially filed for Social Security benefits on behalf of her children August 22, 1976. The United States District Court for the District of Maryland and the Court of Appeals for the Fourth Circuit upheld the denial of benefits (Jones v. Schweiker, 668 F.2d 755 (4th Cir. 1981)).

 A writ of certiorari was granted by the United States Supreme Court on November 1, 1982. On April 18, 1983 the Supreme Court vacated the judgment of the Fourth Circuit and remanded" for further consideration in light of Mississippi Code Annotated section 91-1-15 (Cum. Supp. 1982). "Jones v.

 Heckler, ___ U.S. ___, 103 S. Ct. 1763 (1983).

 Section 91-1-15, as amended, creates a new remedy through which illegitimates may pursue their rights in a petition to establish heirship.

 Under the law as it was at that time we held in Knight v. Moore, 396 So.2d 31 (Miss. 1981) that for an illegitimate to inherit from her father she must bring suit to establish paternity within six years after attaining the age of twenty-one.

 After the enactment of section 91-1-15 (Supp. 1981) which became effective July 1, 1981, we considered Estate of Kidd v. Kidd, 435 So.2d 632 (Miss. 1983) *fn1 and held that section 91-1-15, as amended, created a new remedy whereby illegitimates, who would have otherwise been barred under the holding of Knight v. Moore, supra, could proceed under the new remedy known as an action to determine heirship and that Emma Gunn Webber, the illegitimate child of Mack Kidd, was not barred from pursuing her claim on the estate of Kidd when brought under the new statute. We held that the chancellor had erroneously construed Knight so as to bar Emma Gunn Webber's claim and in dismissing her petition. We remanded the case to allow Ms. Webber to pursue her claim on the estate of Kidd under section 91-1-15 as amended.

 In Larsen v. Kimble, 447 So.2d 1278 (Miss. 1984) the Court again looked at section 91-1-15, as amended, this time in light of a 1983 amendment to the statute. This amendment was not intended as a substantive change but was enacted to make sure that ...


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