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IN THE MATTER OF THE HEIRSHIP OF HUGH McLEOD, DECEASED: HANNAH CRAFT v. WILLIE PRICE

APRIL 22, 1987

IN THE MATTER OF THE HEIRSHIP OF HUGH McLEOD, DECEASED: HANNAH CRAFT
v.
WILLIE PRICE, ET AL AND SYSTEMS FUELS, INC., ET AL



EN BANC.

ANDERSON, JUSTICE, FOR THE COURT:

The opinion rendered in this cause on October 1, 1986, is hereby withdrawn and the following is substituted as the opinion of the court.

ON PETITION FOR REHEARING

 This is an appeal from the Chancery Court of Jefferson Davis County. Hugh McLeod, an adult resident of Jefferson Davis County, died intestate on January 17, 1933. He had eight brothers and sisters and at the time of his death he owned with them an undivided 1/9th interest in a certain 80 acres of land. By subsequent inheritances and conveyances,

 this land came into the hands of the defendants in the present action.

 On February 12, 1982, - almost half a century after McLeod's death - Hannah Craft filed a petition in the Chancery Court of Jefferson Davis County alleging that she and McLeod had entered into a common law marriage in 1928. (Mississippi then allowed the creation of such marriages). By virtue of this alleged marriage, she contended that she was the sole heir at law of Hugh McLeod, and that neither McLeod's siblings nor their descendants and grantees had any interest in the land.

 All of the defendants denied that Hugh McLeod had been married to Hannah Craft or to anyone else, and further alleged that Mrs. Craft's action was barred by the statute of limitations, Mississippi Code Annotated, Section 15-1-49 (1972), or alternatively by laches.

 The record contains no explanation of why Mrs. Craft waited for 49 years to bring this action. It is alleged in the pleadings, however, that in 1981 she executed an oil and gas lease to a third party; this document purported to convey an interest in the property she claims in the present action.

 The two primary issues to be resolved by this Court on petition for rehearing are:

 (1) what, if any, statute of limitation applies to proceedings to establish heirship; and

 (2) if there is an applicable statute of limitation, when does the cause of action accrue thereby establishing a time when heirship proceedings must be brought.

 Section 91-1-1, et seq. of the Mississippi Code Annotated (1972), controls the distribution of property by intestate succession. Under 91-1-27, Miss. Code Ann., any potential heir at law may petition the chancery court of the decedent's home county or county where some of his real estate is situated to enter a decree establishing the lawful heirs of the decedent where the decedent has died either totally or partially intestate. All known heirs must be named in the petition and all unknown heirs are to be notified by publication. Once such notice requirements are complied with, the chancery court may enter a valid decree establishing the lawful heirs of the decedent which will be binding on all parties cited therein and will be free from collateral attack unless a suit is brought within two years after the date of entry of the decree. See Miss. Code Ann., 91-1-29 and 91-1-31 (1972). *fn1

 An examination of these statutes fails to reveal any prescribed time period in which a suit to establish heirship must be brought or thereby barred. Instead, these statutes, when read together, simply provide that once a suit to establish heirship has been brought and a valid decree entered then any party wishing to attack that decree must do so within two years of the date of entry. Thus, it would appear that there is no requirement that a suit to establish heirship must be brought at all. Such an interpretation seems reasonable when one remembers that title to the decedent's property automatically vests in his lawful heir or heirs upon his death without instituting any legal proceedings. Thus, proceedings to establish heirship would only be needed or required either when there was a dispute as to the identity of a lawful heir or where a would be heir sought to establish his claim to the decedent's property to the exclusion of another's claim.

 In Bryant v. Lemmons, 598 S.W.2d 79 (Ark. 1980), the Arkansas Supreme Court was faced with a similar problem. In that case, two claimants seeking to establish their claim to 20 acres of land filed petitions in 1976 to determine their status as heirs to the estates of their grandfather, who died intestate in 1938, and their father, who died intestate in 1967. A question concerning the applicability of Arkansas' general five year statute of limitation as a bar to these claims was raised on appeal after the probate court ...


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