BEFORE DAN LEE, P.J., SULLIVAN AND ZUCCARO, JJ.
ZUCCARO, JUSTICE, FOR THE COURT:
The issue in this case is whether the Chancery Court of Hinds County erred in dismissing, on the basis of res judicata and collateral estoppel, the complaint of appellants which alleged that they were the illegitimate children of George Washington Stutts, Sr., deceased, who should, in spite of their illegitimate status, share in decedent's estate pursuant to the illegitimate inheritance provisions of our intestacy statutes, Miss. Code Ann. 91-1-15 (1972). We hold that the dismissal was error and accordingly we reverse and remand.
The facts are undisputed. George Washington Stutts, Sr. died interstaate in 1964 leaving a substantial estate, which consisted of, to a large degree, real estate situated in Hinds and Yazoo Counties. Stutts resided in Hinds County, and his estate was administered in the Chancery Court of the First Judicial District of Hinds County. During the administration of Stutts' Estate in 1965, a petition to determine heirship was filed in which appellants, Emmanuel Stutts, born in 1953, Delores Stutts, born in 1955 and Ezekiel Stutts, born in 1956, sought to establish an inheritance claim against the estate by alleging that they were the children of George Washington Stutts, Sr. Appellants' claim was based on their contention that a common law marriage existed between their mother, Maggie Brown, and George Stutts, Sr., in that Brown and Stutts lived together from 1951 until 1962 (common law marriages were recognized in Mississippi until 1956). During the same time frame, however, Stutts was married to Zelma Mitchel Stutts, who was his wife through a ceremonial marriage. That estate proceeding was litigated between Zelma Stutts and the legitimate children of George W. Stutts, Sr., and appellants claiming to be heirs of the deceased through Magie Brown. After a two-day hearing on appellants' claims, the Chancery Court of Hinds County, on November 115, 1965, determined that appellants were not legal heirs of George Washington Stutts, Sr., and as such they could not share in his estate. This determination was made based upon the lower court's finding that appellants had failed to prove the existence of a common law marriage between Maggie Brown and the decedent. Additionally, the chancellor factually found that Emmanuel Stutts, Delores Stutts and Ezekiel Stutts, had failed to prove that they were even the children of the decedent. This finding of insufficient proof of paternity was made by the chancellor in regard to any claims the children might file in the future for support against the estate of George Washington Stutts, Sr. pursuant to the Uniform Act on Paternity found at 383-01 et seq. of the Mississippi Code Annotated (1942). Oddly, the issue of support under the Uniform Act had never been raised at trial.
Following the chancery court's entry of final judgment on November 15, 1965, the children appealed to this Court. We subsequently affirmed in toto the lower court's decision on the basis of the then existing rule that illegitimates could not inherent through their father. See Stutts v. Estate of Stutts, 194, So.2d 229 (Miss. 1967).
In 1981, the Mississippi Legislature amended Miss. code Ann. 91-1-15 to create a right of action in favor of
illegitimate children to inherit from their father. See Miss. Code ann. 91-1-15(3)(d)(ii) (Para.2) (Supp. 1987) (effective from and after July 1, 1981). On June 29, 1984, just before the expiration of the 3-year statute of limitations imposed by 91-1-15 on actions accruing before July 1, 1981, appellants filed the present action in the Chancery Court of Hinds County, to share in the estate of George Washington Stutts, Sr., as his illegitimate children. All appellees joined in a motion to dismiss the action on the basis that it was barred by the doctrines of res judicata and collateral estoppel. The motion was based on the chancellor's fact finding in the 1965 action that appellants were not the children of George Washington Stutts, Sr., illegitimate or otherwise. The lower court granted appellees' motion, finding the prior action to be a bar to the case sub judice. On appeal, one assignment of error is raised as follows.
I. DID THE CHANCERY COURT ERR IN DISMISSING THE CLAIMS OF EMMANUEL STUTTS, DELORES STUTTS AND EZEKIEL STUTTS?
In the 1965 action, the chancellor made a factual determination that Maggie Brown Stutts, mother of appellants, had failed to prove the existence of, by clear and convincing evidence, a common law marriage between herself and George Washington Stutts, Sr. Thus, if the children of Maggie Brown, now appellants, were the decent's children, they were his illegitimate children, who under the law as it existed at the time could not share or participate in his estate. See Miss. Code Ann. 474 (1942). However, the trial court in the prior action additionally made the following finding of fact:
The court further finds as a fact from the claim of the Uniform Act on Paternity, being Chapter 312, Laws of 1962, that there was no proof to show that George W. Stutts, Sr. was the father of Maggie Brown's three children, namely Emmanuel Stutts, Delores Stutts and Ezekiel Stutts, and if this proceeding is attempted to be brought to enforce an obligation of the father for liabilities under Chapter 312, there is no ample proof that George W. Stutts, Sr. was the father. This action was not commenced in the lifetime of George W. Stutts, Sr. and the proceeding could not be maintained.
We find it noteworthy that the chancellor made this finding of fact as to the paternity of the children, because no claim for support under the Uniform Act on Paternity had been made
by appellants, and the first time in the 1965 record that such appears is in the chancellor's order.
Returning to the present case, following commencement of appellants' action, all appellees joined in a motion to dismiss on the basis that the chancellor's decree in the 1965 case, especially that portion dealing with paternity, acted as res judicata and collateral estoppel to the relitigation of that issue. The lower court granted appellees' motion, dismissing appellants' action, and finding that the paternity of appellants as it concerns George Washington Stutts, Sr. had previously been litigated so as to bar the present action to reopen his estate under 91-1-15 as amended in 1981. The principal questions now on appeal are whether the chancellor's fact finding as to paternity in the 1965 action meets the criterion for the imposition of the doctrine of collateral estoppel, as to that issue, and to a much lesser degree, whether claim preclusion, i.e. res judicata is applicable.
In Dunaway v. W. H. Hopper and Asociates, Inc., 422 So.2d 749, 751 (Miss. 1982), this Court stated that collateral estoppel is applicable, and the parties to an action will be ...