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IN THE MATTER OF THE ESTATE OF OSCAR REUBEN SMILEY, DECEASED: ENA SMILEY PASCHALL, INA SMILEY CLAYTON, REUBEN JAMES SMILEY, ELOISE BLACKWELL, YVONNE SMILEY JONES, OSCAR CORTEZ SMILEY, AND ELSIE LOUIS SMILEY BLACKWELL v. WILLIAM S. SMILEY

JULY 13, 1988

IN THE MATTER OF THE ESTATE OF OSCAR REUBEN SMILEY, DECEASED: ENA SMILEY PASCHALL, INA SMILEY CLAYTON, REUBEN JAMES SMILEY, ELOISE BLACKWELL, YVONNE SMILEY JONES, OSCAR CORTEZ SMILEY, AND ELSIE LOUIS SMILEY BLACKWELL
v.
WILLIAM S. SMILEY, BARBARA NEAL POLK, BARBARA DEVERNE SMILEY JOHNSON, TOMMY JEFF SMILEY, CASSANDRA SMILEY SPEARMAN, BOBBY L. SHOEMAKER, BAY SPRINGS FOREST PRODUCTS, INC., IRWIN J. WHITE, REX TIMBER CO., INC., CURTIS ALEXANDER, AND THE PEOPLES BANK OF MISSISSIPPI, N.A.



BEFORE DAN LEE, PRATHER AND GRIFFIN.

DAN LEE, PRESIDING JUSTICE, FOR THE COURT:

This appeal raises questions concerning the constitutionality and the procedural requirements of the illegitimate inheritance provisions of our intestacy statutes, Miss. Code Ann. 91-1-15 (Supp. 1987).

Ena Smiley Paschall and her six siblings appeal a judgment entered in the Chancery Court of Jasper County in favor of the established heirs of Oscar Reuben Smiley and other defendants, who took title to real property through them. Plaintiffs below, Ena Smiley Paschall, Ina Smiley Clayton, Reuben James Smiley, Eloise Blackwell, Yvonne Smiley Jones, Oscar Cortez Smiley and Elsie Louise Smiley Blackwell, filed a motion to reopen the estate of Oscar Reuben Smiley, combined with additional counts petitioning to determine heirship and redivide assets. They sought to establish their right to share in the estate by virtue of being illegitimate children of Oscar Reuben Smiley.

 The defendants answered and counterclaimed seeking cloud removal and quieting of title. The chancellor heard argument on joined motions for partial summary judgment by the plaintiffs, and judgment on the pleadings and summary judgment and motion to dismiss by the defendants.

 The chancellor sustained defendants' motion to dismiss and motion for summary judgment, and denied appellants' motion for partial summary judgment. The chancellor thus dismissed plaintiffs' (appellants') suit with prejudice and confirmed title in the subject property in the defendants.

 The chancellor rendered an opinion in which he found that the plaintiffs were without a remedy. His opinion included several reasons for his decision, though none were delineated in the judgment. These reasons will be discussed in more detail, but of significance was the chancellor's finding that so much of Miss. Code Ann. 99-1-15, as allowed illegitimates to establish heirship retrospective to the effective date of the statute, was unconstitutional.

 For reasons that follow, we hold that the chancellor prematurely decided the constitutionality of Miss. Code Ann. 91-1-15(3)(d)(ii) (Para. 2). We decline to hold the provision unconstitutional on its face, and we reverse for a more complete factual development. As will become clear, the chancellor's decision likewise cannot stand for any of the other reasons he enumerated in his findings.

 Finally, Mrs. Paschall and the other plaintiffs are not entitled to a summary judgment on the issue of paternity, and we reverse for continued proceedings consistent with this opinion.

 FACTS

 At issue is title to two tracts of real property. One tract consists of 120 acres acquired by Oscar Reuben Smiley during his lifetime, and the other consists of 56.667 acres (originally a one-third undivided interest in approximately 170 acres) which Smiley inherited by descent from his parents.

 This is not the first time the estate has been before this Court. Smiley died on or about April 1, 1977. October 1, 1979, the plaintiffs in the present action, together with their mother, Leverett Jones, filed a petition seeking to establish themselves as Oscar Smiley's heirs by virtue of a common law marriage. In Paschall v. Polk, 379 So.2d 316 (Miss. 1980), this Court upheld a chancellor's determination that Oscar Reuben Smiley did not enter into a valid common law marriage with Leverett Jones. The decision affirmed the chancellor's determination that Barbara Neal Polk Smiley and her four children (the Smileys) were the heirs of Oscar Reuben Smiley. In that opinion this Court noted there was evidence that Oscar Reuben Smiley lived in the same home with Leverett Jones and fathered the six children who were plaintiffs below. The proof also showed that no marriage ceremony took place between the two and, in fact, Oscar Reuben Smiley actually ceremonially married Barbara Neal Polk in 1940, however, and this Court stated that" [t]he sole question presented here is whether or not a valid common-law marriage was consummated between Leverett Jones and Oscar Reuben Smiley prior to the time that Oscar Reuben Smiley

 and Barbara Neal Polk entered into a ceremonial marriage. . . . "Id. at 316.

 It was not until after this decision that the Mississippi Legislature amended Miss. Code Ann. 99-1-15 to create a right of action in favor of illegitimate children to establish a right to inherit from their father. See Miss. Code Ann. 99-1-15(3)(d)(ii) (Para. 2) (Supp. 1987) (effective from and after July 1, 1981).

 The present action commenced June 25, 1984, just before the expiration of the statute of limitations imposed by Miss. Code Ann. 91-1-15 on actions accruing before July 1, 1981, that being July 1, 1984.

 Beginning after the effective date of the amendments to 91-1-15, Barbara Neal Polk, administratrix, made the first of many conveyances involving the property. On October 8, 1981, Ms. Polk and her four children purported to convey by warranty deed the fee simple title to all the property at issue to Bobby Shoemaker for the consideration of $50,453.30 and legal services rendered.

 November 9, 1981, Shoemaker executed a quitclaim deed to Bay Springs Forest Products, Inc., conveying all his interest to the 120-acre tract. September 17, 1982, Bay Springs subsequently granted a deed of trust on this property in favor of National Bank of Newton to cover a loan of $220,089.36. Bay Springs executed a memorandum of timber contract on November 14, 1983, to Rex Timber for all merchantable pine on the 120-acre tract.

 January 4, 1984, Shoemaker executed a warranty deed in favor of Curtis Alexander (his father-in-law) conveying Shoemaker's interest in the 56.667 acres along with other property not involved with this suit.

 After hearing arguments for and against all the motions before the court, the chancellor disposed of the case by granting judgment in favor of all defendants. The chancellor found (1) that Miss. Code Ann. 91-1-15 (Supp. 1987) was unconstitutional to the extent it could be applied retroactively to divest previously vested real property interests, (2) that since 91-1-15 was unconstitutional, and since plaintiffs knew of Trimble v. Gordon, 430 U.S. 762, 97 S. Ct. 1459, 52 L.Ed.2d 31 (1977), they could have brought a similar claim in the original action and were thus barred by res judicata, (3) that if not barred by res judicata, then the six-year statute of limitations barred the plaintiffs because it ran from the date of the decision of Trimble v. Gordon, or (4) plaintiffs were barred because they had not complied with the procedural requirements

 of Miss. Code Ann. 91-1-27 and -29, a prerequisite to bringing suit under 91-1-15.

 The appellants timely perfected this appeal from that judgment and finding.

 I.

 Did the Chancellor Err in Holding Miss. Code Ann. 91-1-15 Unconstitutional as Applied?

 The chancellor found that Miss. Code Ann. 91-1-15 (Supp. 1987) is unconstitutional to the extent it is to be retroactively applied. He apparently reasoned that retroactive application of the amended version of 91-1-15 so clearly deprived defendants of due process that he need not reach the merits of plaintiffs' claims prior to reaching the constitutional question. We do not agree.

 At issue is 91-1-15(3)(d)(ii) (Para. 2) (Supp. 1987), which provides:

 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 father 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.

 The power of judicial review includes the power to determine acts of the Mississippi Legislature unconstitutional. See Alexander v. State Ex Rel Allain, 441 So.2d 1329, 1347 (Miss. 1983).

 Legislative acts are, however, cloaked with a presumption of constitutionality, Mississippi Power Co. v. Goudy, 459 So.2d 257, 263 (Miss. 1984); Anderson v. Fred Wagner and Roy Anderson, Jr., Inc., 402 So.2d 320, 321 (Miss. 1981), and unconstitutionality must appear ...


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