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MICHELLE LEIGH SMITH, BY AND THROUGH HER MOTHER AND NEXT FRIEND, SHERRY HAYNES YOUNG v. ESTATE OF LESLIE CLIFTON KING

JANUARY 28, 1987

MICHELLE LEIGH SMITH, BY AND THROUGH HER MOTHER AND NEXT FRIEND, SHERRY HAYNES YOUNG
v.
ESTATE OF LESLIE CLIFTON KING, DECEASED



BEFORE HAWKINS, P.J., PRATHER AND ROBERTSON, JJ.

PRATHER, JUSTICE, FOR THE COURT:

This appeal addresses the question of whether an executor of a will who intentionally and fraudulently failed to disclose the existence of an illegitimate child to a court will vitiate a final decree adjudicating heirship.

Michelle Leigh Smith, by her mother, Sherry Haynes Young, as next friend filed a petition against the widow, brothers, sisters, mother, and grandmother of Leslie Clifton King, deceased, to be declared an heir at law of the decedent. The widow, Darlene Araujo King, filed a motion to dismiss for failure of the claimant to timely file such a claim and the motion to dismiss was granted by the Chancery Court of Harrison County. This appeal ensued.

 Leslie Clifton King died intestate on April 17, 1983, and his widow, Darlene Araujo King, was appointed administratrix of his estate on April 19, 1983. The estate administration continued routinely and was closed on August 9, 1983, adjudicating the widow to be the only heir at law.

 On February 6, 1984, the appellant minor filed her petition seeking to be declared an heir of the decedent as an illegitimate daughter and to share in the estate. The widow and former administratrix responded denying the petition's allegations and also filed a motion to dismiss for the minor petitioner's failure to timely file such a claim. The minor then moved to amend her complaint to allege fraud. The amendment alleging fraud charged that the widow knew of the

 existence of the appellant as an illegitimate child of the decedent, but fraudulently misrepresented to the court that alleged fact. Responses from two of the decedent's sisters were contained within the record, one response admitting to her brother's acknowledgment of the child as his own; the other sister denied her brother's paternity of the child. On this record, the chancery judge denied the amendment and dismissed the petition as being untimely filed.

 WAS THE CLAIM TIMELY MADE?

 Miss. Code Ann. 91-1-15 (3) (Supp.1985) provides the statutory basis for inheritance rights and the limitation as to the time within which such a claim may be brought, which statute provides in pertinent part:

 (3) An illegitimate shall inherit from and through the illegitimate's natural father and his kindred, and the natural father of an illegitimate and his kindred 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 shall run notwithstanding the minority of a child. No claim of inheritance based on an adjudication of paternity, after death of the intestate, by a court outside the State of Mississippi shall be recognized unless:

 (i) Such court was in the state of residence

 of the intestate at the time of the ...


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