Summary
In Thomas, the Supreme Court of Mississippi found that the alleged child of the deceased Will Thomas was not entitled to share in his estate.
Summary of this case from Allen v. CalifanoOpinion
No. 36109.
April 22, 1946. Suggestion of Error Overruled May 13, 1946.
DESCENT AND DISTRIBUTION.
In proceeding involving heirship, evidence was insufficient to establish that deceased was father of defendant or that deceased recognized defendant as his daughter, and was insufficient to sustain finding that defendant was the legitimate daughter of deceased (Code 1942, sec. 474).
APPEAL from the chancery court of Pearl River county, HON. LESTER CLARK, Chancellor.
H.H. Parker, of Poplarville, and G.B. Keaton, of Picayune, for appellant.
The burden of proof is on the appellee.
Anderson v. Thomas (La.), 141 So. 441; 7 C.J. 943, Sec. 9; 10 C.J.S. 30.
The Louisiana law controls in this case.
Smith v. Kelly's Heirs, 23 Miss. 167; Fisher v. Browning 107 Miss. 729, 66 So. 132; Pfleifer v. Wright, Executrix, 73 A.L.R. 932.
There is no common law marriage in the State of Louisiana.
D'Antonio v. State, 187 Miss. 648, 191 So. 281; Graves v. State, 134 Miss. 547, 99 So. 364; Johnson Heirs v. Raphael, 117 La. 967, 42 So. 470.
The Louisiana law requires a definite acknowledgment on the part of the reputed father before a notary public, in the presence of two witnesses, to legitimize the claimant.
Murdock v. Porter, 155 La. 145, 99 So. 18; Lange v. Richoux, 6 La. 570; Jobert v. Pilot, 4 La. Ann. 305; Succession of Herbert, 33 La. Ann. 1099; Succession of Fortier, 51 La. Ann. 1562, 26 So. 554; Bourriaque v. Charles, 107 La. 217, 31 So. 757; Briggs v. McLaughlin, 134 La. 133, 63 So. 851; Landry v. American Creosote Works, Ltd., 119 La. 231, 43 So. 1016, 11 L.R.A. (N.S.) 387; Talbot v. Hunt, 28 La. Ann. 4; Succession of Llula, 41 La. Ann. 87, 6 So. 555; Succession of Roach, 155 La. 541, 99 So. 442; Anderson v. Thomas, 19 La. App. 428, 137 So. 378; Succession of Yoist, 132 La. 309, 61 So. 384; Liautaud v. Baptiste (La.), 3 Rob. 441; Succession of Caballero v. The Executor, 24 La. Ann. 573; Marionneaux v. Dupuy, 48 La. Ann. 496, 19 So. 466; Davenport v. Davenport, 116 La. 1009, 41 So. 240; Bostwick v. Thomson, 149 La. 152, 88 So. 775; New Orleans v. Loyds, 31 La. Ann. 781; State ex rel. Knollman v. King, 109 La. 799, 33 So. 776; Cassard v. Zacharie, 52 La. Ann. 835, 27 So. 368, 49 L.R.A. 272; State v. Adler, 202 La. 416, 12 So.2d 204; Van Dickson v. Mayfield, 158 La. 529, 104 So. 315; Cormier v. Cormier, 185 La. 968, 171 So. 93; Wells v. White, 13 La. App. 696, 129 So. 171; Succession of Tyson, 186 La. 516, 172 So. So. 772; Succession of Serres, 136 La. 531, 67 So. 356; Succession of Jones, 185 La. 377, 169 So. 440; Thompson v. Vestal Lumber Mfg. Co., 22 So.2d 842; Minor v. Young, 149 La. 583, 89 So. 757; Succession of Lacosst, 142 La. 673; Taylor v. Allen, 151 La. 82, 91 So. 81; Succession of Corsey, 171 La. 663, 131 So. 841; Ford v. Calhoun, 6 La. App. 380; Succession of Falls, 2 La. App. 759; 19 Tulane Law Review, 1944-1945, 325-345; 1 Dart's Civil Code, Arts. 8, 198, 200, 203, 204, 206, 209; 10 C.J.S. 70, Sec. 12.
Under the proof presented in the case at bar the appellee is not entitled to inherit under the laws of the State of Mississippi.
Alabama V.R. Co. v. Williams, 78 Miss. 209, 28 So. 853, 51 L.R.A. 836, 84 Am. St. Rep. 624; Illinois Cent. R. Co. v. Johnson, 77 Miss. 727, 28 So. 753, 51 L.R.A. 837; Code of 1942, Sec. 474.
The finding of a chancellor when supported by an erroneous application of the law, or when manifestly wrong against the overwhelming weight of the testimony, will be reversed.
Clark v. Dorsett, 157 Miss. 365, 128 So. 79; Gerard v. Gill, 195 Miss. 726, 15 So.2d 478.
The finding of the chancellor, if based on sufficient evidence, wil not be disturbed by the Supreme Court.
Huckaby v. Jenkins, 153 Miss. 359, 121 So. 130; Sykes v. Sykes, 162 Miss. 487, 139 So. 853; Nash v. Stanley, 168 Miss. 691, 152 So. 294; Silver Creek Co. v. Hutchens, 168 Miss. 757, 151 So. 559; Dowling v. Whites Lumber Supply Co., 170 Miss. 267, 154 So. 703.
The marital status of Will Thomas and Lettie Thomas, or their marriage contract, cannot be collaterally attacked by a third party, after the death of one of the parties.
Ellis v. Ellis, 152 Miss. 836, 119 So. 304; White v. White, 154 Miss. 897, 124 So. 64; O'Antonio v. State, supra; Jourdan v. Jourdan, 181 Miss. 176, 179 So. 268.
The agreement and contract to become man and wife between Will Thomas and Lettie Thomas will be inferred from long cohabitation and living together and public avowal that they were man and wife.
Henderson v. Cargill, 31 Miss. 367; MacAllum v. Sprinks, 129 Miss. 237, 91 So. 694; Jourdan v. Jourdan, supra; Howard v. Kelly, 111 Miss. 285, 71 So. 391; Sims v. Sims, 122 Miss. 745, 85 So. 73; Alabama V.R. Co. v. Beardsley, 79 Miss. 417, 30 So. 660; 35 Am. Jur. 10, Sec. 192.
The slight declarations against marriage relied on by cross-appellant are insufficient to overthrow the common law marriage proven.
Henderson v. Cargill, supra; 38 C.J. 1346, Sec. 119.
Nate S. Williamson and E.T. Strange, both of Meridian, and J.E. Stockstill, of Picayune, for appellee.
The law of Mississippi is the law of the forum and controls the case at bar and stands alone in controlling and establishing the legitimacy of the girl, Geneva Thomas, and in connection with the statute of descent and distribution of this state, controls the disposition of the property acquired and accumulated by Will Thomas in Pearl River County, Mississippi, where he selected, chose and established his permanent residence and where he occupied and enjoyed the benefits of said property for more than twenty years continuously to the date of his death in said county, in November, 1944. Section 474 of the Code of 1942 provides for the creation of the status of Mildred Geneva Thomas as the child of, and the heir at law of, Will Thomas, deceased, without the aid or without the effect of any rule of law in the State of Louisiana, where the child was born and there fully recognized by its putative father, Will Thomas. We maintain that under the law of Mississippi, which provides and guarantees the right and the privilege of Will Thomas to select and establish his permanent residence in the State of Mississippi, even after the birth of said child, and after his legal marriage to, and after the death of, Angeline, the mother of said child, when Will Thomas did select and establish a residence in Mississippi he thereby freed himself, and the rights of his heirs at law, from any provision or effect of the law of Louisiana, in respect to the inheritance and descent and distribution of his property in Mississippi. Under the broad terms of the above statute, all that has to be shown is the legal marriage, no matter where, to the mother of his child, Geneva, begotten before marriage, and that he, Will Thomas, recognized the child as his, no matter where, after the legal marriage.
Code of 1942, Sec. 474.
However, in the State of Louisiana the subsequent marriage of the mother of children born out of marriage except those who are born from an incestuous or adulterous connection, may be legitimated by the subsequent marriage of their father and mother, whenever the latter have legally acknowledged them as their children, either before their marriage, by an act passed before a notary and two witnesses, or by their contract of marriage itself.
Smith v. Kelly's Heirs, 23 Miss. 167; Succession of Fletcher, 11 La. Ann. 59; Succession of Giordano, 194 So. 577; Jenkins et al. v. Aetna Casualty Co., 158 So. 217; Wilson v. Rogers (La.), 14 So.2d 650; Jackson v. United Public Service Co., Inc., 196 La. 1, 198 So. 633; Succession of Curtis, 106 La. 1045, 109 So. 832; Blasini et al. v. Succession of Blasini, 30 La. Ann. 1388; Succession of Tyson, 186 La. 516, 531, 172 So. 772, 777; Succession of Llula, 41 La. Ann. 87, 6 So. 555; Succession of Anderson, 176 La. 66, 145 So. 270; Hutchinson's Code of 1848, Secs. 502, 505, par. 53; Code of 1942, Sec. 474; Civil Code of Louisiana, Arts. 198, 199, 208, 209.
The court erred in finding from the testimony that Lettie Thomas was the common law wife of Will Thomas and decreeing her to be an heir at law to his estate and entitled to a widow's allowance.
Walker v. Matthews et al., 191 Miss. 489, 3 So.2d 820; Howard v. Kelly, 111 Miss. 285, 71 So. 391; Lanham v. Wright, 164 Miss. 1, 142 So. 5; McCloskey Brothers v. Hood Milling Co., 119 Miss. 92, 80 So. 492; Re Thompson's Estate (Fla.), 199 So. 325; McClish v. Rankin et al. (Fla.), 14 So.2d 714; Henley v. Rockett (Ala.), 8 So.2d 852; Travers v. Reinhardt, 205 U.S. 423, 27 S.Ct. 563-567, 51 L.Ed. 865.
Argued orally by H.H. Parker, for appellant, and by Nate S. Williamson, for appellee.
Appellant filed her petition to remove the administrator of the estate of Will Thomas, deceased, for possession of certain personalty, and for a decree adjudging her to be the sole heir of Will Thomas. She asks also to be appointed administratrix. Appellee, cited as a defendant, denied that Lettie Thomas was the lawful wife and now the sole heir of the deceased, but alleged that appellee was his daughter and as such his sole heir. The Chancellor held that appellant was the common law wife of Will Thomas and that the appellee was his legitimate child and entitled to share in the estate together with appellant. By agreement the status of the administrator was not affected. To the direct appeal of appellant, the appellee filed a cross-appeal. Each claims to be the sole heir.
The testimony is without dissent that appellee was born out of wedlock and was the daughter of Angeline Thomas to whom Will Thomas was later married in Louisiana, September 4, 1919. Angeline died in 1922 and shortly thereafter Will Thomas moved to Picayune, Mississippi. It is further beyond dispute, and the Chancellor correctly found, that Will Thomas then and there accepted appellant as his common-law wife and that they lived together as such until his death in 1944.
Appellee was never legitimated according to the laws of Louisiana although Will Thomas later married her mother in that State. For her to become a lawful heir in this State it must be shown first that she was the natural daughter of Will Thomas, that both parents were later lawfully married and that the father acknowledged her as his daughter in this State. Code 1942, Section 474.
We are agreed that if she is not shown to be the daughter of Will Thomas we need not examine whether there is adequate proof of his acknowledgment of her as his daughter, nor whether if this be shown her status as an heir would be thereby established in view of Smith v. Kelly's Heirs, 23 Miss. 167, 55 Am. Dec. 87. We prefer to base our decision upon the insufficiency of the proof to establish either the paternity of Will Thomas or his recognition of appellee as his own daughter.
The testimony is more than merely preponderant that appellee was born before Will Thomas met her mother. She was generally known as Geneva Dunn and her mother was quoted as having stated that one Homer Dunn was her father. Dunn himself testified to the contrary. We need not recite the testimony disproving the paternity of Will Thomas. It was shown that appellee's mother lived with one Alfred Miller for five or six years prior to her acquaintance with Will Thomas, at which time appellee was about six years old. Out of thirty-two witnesses only one, her aunt, Stella Goldsmith, testified that Will and Angeline were acquainted prior to the birth of appellee. She is contradictory in her statement as to the age of appellee when her mother married Will Thomas. Other inconsistencies in her chronologies render her evidence inadequate to withstand the pressure of conflicting testimony all of which is consistent and plausible.
On the issue of recognition and acknowledgment in this State the testimony is insufficient. Although several witnesses testified that Will Thomas referred to her on occasions as "my little girl," or "my child," or "my daughter," it is more significant that four witnesses who knew them well stated that Will referred to her as his stepdaughter or his wife's daughter. There is also testimony that he positively disclaimed any relationship. We are of the opinion that appellee did not on this issue sustain the burden of proof which rested on her and that the finding of the learned Chancellor that she was the legitimate daughter of Will Thomas ought not to be upheld. We have not detailed the proof sustaining our conclusion but have weighed it carefully in the light of our duty to uphold the Chancellor in findings of fact save where manifestly unwarranted.
Our decision renders it unnecessary to examine the interesting questions of law which would arise had our decision upon the factual issues been otherwise. The decree of the trial court will be reversed upon the direct appeal and affirmed upon the cross-appeal, and appellant decreed to be the sole lawful heir of Will Thomas.
Reversed on direct appeal, affirmed on cross-appeal, and decree here for appellant.