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MARY HOLLOWAY & PEARLINE CLARKE v. ADDIE JONES

JULY 23, 1986

MARY HOLLOWAY & PEARLINE CLARKE
v.
ADDIE JONES, ET AL.



BEFORE ROY NOBLE LEE, ROBERTSON and ANDERSON

ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:

Mary Holloway and Pearline Clarke appeal from a final judgment of the Chancery Court, Leflore County, Mississippi, dismissing their complaint for the partition of twenty-three (23) acres of land. The appellees, Addie Jones, Leroy Holmes, Mamie Johnson, Jessie Jones, and unknown heirs at law of Allen Holmes and Willie Holmes, have not appeared or filed briefs in the cause.

The appellants have assigned two (2) errors in the judgment of the lower court. Since the appellees have filed no brief or authorities on this appeal we are not required to consider their position and may regard such failure as conceding the claim of appellants.

 However, the real question here, e.g., whether or not the appellants may inherit from their natural father, as illegitimates under the law and decisions of this State, is squarely before us, and we will proceed to a determination of that question.

 The appellants brought this suit to partite twenty-three (23) acres of land in Leflore County. They base their claims to an undivided one-eighth (1/8) interest each in said land on the fact that they are the illegitimate children of Willie Holmes, deceased intestate.

 Willie Holmes held title to the land involved and died in 1969, survived by his wife, Alice Holmes. Born of their marriage were five (5) children, two of whom were deceased at the time of the trial. The record reflects, and the chancellor found, that the appellants are the illegitimate children of Willie Holmes by one Mattie Abercrombie.

 In an opinion on May 6, 1982, the chancellor held that appellants were entitled to inherit from their natural father, Willie Holmes, and that they were vested with an undivided one-eighth (1/8) interest each in the said lands. On March 28, 1984, the chancellor rendered a supplemental opinion, wherein he concluded that, although appellants are the illegitimate children of Willie Holmes, when Willie Holmes died on February 16, 1969, his illegitimate children could not inherit from him at the time, and that, consequently, they could not inherit from him when the complaint was filed. He based his conclusion on Trimble v. Gordon, 430 U.S. 762, 97 S. Ct. 1459, 52 L.Ed.2d 31 (1977); Mississippi Code Annotated

 91-1-15 (1972), Witt v. Mitchell, 437 So. 2d 63 (Miss. 1983); Estate of Kidd v. Kidd, 435 So. 2d 632 (Miss. 1983); and Larsen v. Kimble, 447 So.2d 1278 (Miss. 1984).

 In Berry v. Berry, 463 So. 2d 1031 (Miss. 1984), discussing Mississippi Code Annotated 91-1-15 (1972), this Court quoted from Larsen v. Kimble, supra, as follows:

 Perhaps the most significant aspect of this remedial statute is the fact that it created a remedy in favor of all illegitimates regardless of the date of the death of the intestate but placed in a three year limitation period, after July 1, 1981, notwithstanding the minority of a child (illegitimate) within which to file such claim. This was done by inclusion of subsection (3)(d)(ii) 2 which states as follows:

 A remedy is hereby created in favor of all illegitimates having any claim existing prior to July 1, 1981; concerning the estate of an intestate whose death occurred Prior to such date by or on behalf of an illegitimate or an alleged illegitimate child to inherit from or through its natural rather and any claim by a natural father to inherit from or through an illegitimate child shall be brought within three (3) years from and after July 1, 1981, and such time period shall run notwithstanding the minority of a child.

 * * *

 Following Larsen v. Kimble, supra, as we are bound to do, in our opinion the chancellor erred in dismissing the complaint. The judgment of the lower court is reversed and the cause is remanded for a trial on the merits. 463 So.2d at 1032, 1033. *fn1

 We are of the opinion that Larsen v. Kimble, supra, and Berry v. Berry, supra, are dispositive of the question now before the Court, that the lower court erred in holding that appellants ...


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