September 3, 1996
FOR PUBLICATION
IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
FILED
BLANCHE BILBREY AND CECIL ( September 3, 1996
ASBERRY, (
( Cecil W. Crowson
Plaintiffs-Appellees, ( Appellate Court Clerk
(
(
( Pickett Chancery
(
v. ( Hon. Vernon Neal,
( Chancellor
(
( No. 01S01-9509-CH-00168
(
VESTEL SMITHERS, (
(
Defendant-Appellant. (
For Plaintiffs-Appellees: For Defendant-Appellant:
Phillips M. Smalling Onnie L. Winebarger
Byrdstown Byrdstown
OPINION
JUDGMENT OF COURT OF APPEALS
AFFIRMED; CASE REMANDED. REID, J.
This case presents for review the right of a child born out of
wedlock to inherit from his natural father who died prior to the amendment of
Tenn. C ode Ann . § 31-2-105(a )(2)(B) (Supp. 1 995) in 1978 . The record
supports the finding of paternity, but the claimant failed to establish the right
to inherit as required by the statu te; howe ver, the ap pellant is es topped to
deny the claiman t's asserte d interest in the dece dent fathe r's real prop erty.
THE CASE
S. D. (Sam) Asberry died intestate on June 12, 1966, survived
by two legitim ate ch ildren, O rban A sberry and B lanch e Bilbre y, and C ecil
Asberry, who was born out of wedlock. Orban Asberry qualified and served
as the ad ministrato r of his fathe r's estate. T he adm inistration of th e estate
was clos ed on th e 12th d ay of Aug ust, 1968 , and the d ecede nt's perso nalty
was distributed equally between Orban Asberry and Blanche Bilbrey. At the
time of his father's death, Cecil Asberry made no claim for a share of the
personal estate.
No disp osition wa s mad e of any p ortion of the real prop erty
owned by S. D. (Sam) Asberry until 1983.1 In 1983, and again in 1986,
portions of the real property were conveyed to the State of Tennessee by
warra nty dee d exec uted b y Orba n Asb erry, Bla nche Bilbrey , and C ecil
Asberry. The deeds identified the grantors as "being the only children and
heirs at law of S. D. A sberry." The pro ceeds from the sale of the land were
divided eq ually am ong O rban A sberry, B lanche Bilbrey, an d Cecil A sberry.
In 1993, prior to the filing of the c omplaint in this cas e, Orban A sberry,
Blanch e Bilbrey, et vir, and Ce cil Asberry , et ux, executed an oil and gas
lease of re al prope rty owned by S. D. (S am) A sberry at th e time of h is death.
The record also shows that the proceeds from the sale of timber cut on the
land w ere div ided a mon g Orb an As berry, B lanch e Bilbre y, and C ecil
Asberry.
1
The record does not show who received the rents from the real property owned by the
deced ent.
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Orban Asberry died in 19 93. He d evised a ll of his prope rty to
his steps on, Ves tel Smith ers.
Soon after O rban A sberry 's dea th, Blan che B ilbrey an d Cec il
Asbe rry filed th is suit, se eking an ad judica tion tha t Blanc he Bilb rey, Ce cil
Asberr y, and Ve stel Sm ithers are te nants in c omm on of the re al prope rty
owned by Sam Asberry at the time of his death and that the land be sold and
the proceeds be divided among the parties equally. The parties stipulated
that S. D. (Sam) Asberry's paternity of Cecil Asberry could be proven by
clear and convincing evidence; however, Smithers disputed the allegation
that Cec il Asberry o wns an y interest in th e real pro perty.
The trial cou rt found for the p laintiffs a nd he ld that C ecil
Asberry by intestate succession became the owner of a one-third undivided
interest in his father's real property. The Court of Appeals affirmed.
ANALY SIS
Prior to 1978, a child born out of wedlock could inherit from the
natural father only if there had been an adjudication of paternity prior to the
death o f the father. See Tenn. Code Ann. § 31-206(2) (Supp. 1977). That
law was changed in 1978 by this Court's decision in Allen v. Harvey, 568
S.W.2d 829 (Tenn. 1978), and the subsequent enactment of an amendment
to the statute which is presently found at Tenn. Code Ann. § 31-2-
105(a)(2)(B) (S upp. 1995 ).2
2
Tenn. Code Ann. § 31-2-105(a)(2)(B) states as follows:
(a) If, for purposes of intestate succession, a relationship of parent and child must
be established to determine succession by, through, or from a person:
...
(2) In cases not covered by subdivision (a)(1), a person born out of wedlock is a
child of the mother. That person is also a child of the father, if:
...
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In Allen v. Harvey, there had not been an adjudication of
paternity p rior to the na tural father's death. E ven thou gh the sta tute
contained no provision at that time for an adjudication of paternity after the
death of the father, this Court found "the policy of that Act to be one of
sanction ing inherita nce if the fa ther-child re lationship is clearly esta blished,"
568 S.W .2d at 834 , and he ld that pate rnity for the pu rpose o f "inheritanc e,"
could be determined after the de ath of the father, upon "clear and
convinc ing proo f" provided "rights of inhe ritance ha ve not finally ve sted." Id.
at 835. The Court stated that application of the decision to other cases
would b e prosp ective only. Id.
The decision in Allen v. Harvey turned on a finding of clear and
convincing proof of paternity. The second condition, "where rights of
inheritance have not vested," was not an issue in that case because it was a
conde mnatio n proce eding b y the State in which th e owne r of the pro perty
died during the pendency of the case. The claimant's right to inherit was
depe nden t upon the de termin ation th at he w as the child of the ow ner's
deceased brother. Consequently, there could be no claim that "rights of
inheritanc e" had ve sted, and the issue was no t discuss ed by the Court.
The 1978 amendment to Tenn. Code Ann. § 31-2-105 codified
the Court's decision in Allen v. Harvey, that paternity could be established
after the death of the father upon clear and convincing proof. However, the
statute did not address the second limitation found in Allen v. Harvey, that
"rights of inh eritance h ave not fina lly vested."
In the present case, the Court of Appeals based its decision
that Cecil Asberry is entitled to a share of his natural father's property upon
(B) The paternity is established by an adjudication before the death of the father or
is established thereafter by clear and convincing proof, but the paternity established
under th is subdivis ion is ineffec tive to qualify the fa ther or the father's k indred to
inherit from or through the child unless the father has openly treated the child as
the father's, and has not refused to support the child.
-4-
Mars hall v. M arsha ll, 670 S.W.2d 213 (Tenn. 1984). In Mars hall v. M arsha ll,
the Court applied the decision in Allen v. Harvey "retros pective ly" and h eld
that a child born out of wedlock could inherit from his intestate father, who
had die d in 1975 survived b y a widow and co llateral heirs. Id. at 215. The
opinion, filed in 1984, does not discuss the statute or the holding in Allen v.
Harvey that the claim will not b e allow ed to d isturb ve sted rig hts; no r does it
address the time within which the right of inheritance must be asserted,
excep t to find th at the "d efend ants in the ins tant ca se ha ve not a cted in
reliance upon the precede nt overruled by Allen . . . ." Id. Nevertheless, the
effect of the Mars hall decision was that three and one-half years after the
death of the ow ner of the prope rty, the fee simple title to the prop erty,
subject only to the widow's statutory rights, was divested out of the
decedent's heirs at law and vested into his son who was born out of
wedloc k. The d ecision o bviously d isturbed v ested p roperty righ ts, despite its
focus on "prospe ctive" and "re trospec tive" applica tions of the statute.
Conseq uently, neither the statute nor any opinion of this Court
has addressed directly the time within which a child born out of wedlock
must assert the right to inherit by virtue of his relationship with his natural
father. That is sue w as rais ed in th e trial co urt and the Co urt of A ppea ls in
this ca se. Th e trial co urt ruled that title h ad no t vested in the d eced ent's
legitimate children and, further, that Vestel Smithers was estopped from
asserting any statute of limitation. The Court of Appeals utilized a different
rationale. In response to Smithers' insistence that title to S. D. (Sam)
Asberry's real property had vested in the decedent's legitimate heirs at law
imme diately upo n his dea th in 1966 , that court a pparen tly found tha t,
pursuant to Allen v. Harvey and Mars hall v. M arsha ll, title also vested in
Cecil Asberry upon the death of the father, even though there had been no
adjudication of paternity. The Court of Appeals did not discuss the statute of
limitation or estoppel. The decision by the Court of Appeals that title vested
in the claimant upon the death of his father, even though there had been no
adjudication of paternity, left unresolved significant issues regarding the
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ownership of property. Application of the relevant rules of law compels the
conclusion tha t neither the decision of the Court of A ppeals nor the trial court
is entirely correct. Both courts, as well as this Court in Mars hall v. M arsha ll,
ignored the decision in Allen v. Harvey that an ad judication of patern ity
subsequent to the father's death will not be allowed to disturb vested
interests.
Determining the appropriate application of the limitation that
vested rights will not be disturbed to the statute allowing paternity to be
established after the father's death requires consideration of the law of real
property, intestate succession, and equal protection. That consideration
properly begins with the applicable statutes. Section 31-2-103(a) provides:
The real pro perty o f an inte state d eced ent sh all
vest im med iately up on de ath of th e dec eden t in
the heirs a s provide d in § 31-2 -104. . . .
Tenn . Code Ann. § 3 1-2-103 (a) (Sup p. 1995 ). For purp oses o f intestate
succession, a person born out of wedlock is the child of that person's father
if:
The paternity is established by an adjudication
before the death of the father or is established
thereafte r by clear a nd con vincing pro of.
Tenn. Code Ann. § 31-2-105(a)(2)(B). Consequently, if there has been an
adjudication of paternity prior to the death of the father, the child born out of
wedlock inherits by intestate succession as a legitimate child, and title to the
decedent's real property vests in that child immediately upon death of the
decedent. No further adjudication is necessary to establish the child's right
to inherit.
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But, according to the statute, where there has been no
adjudication of paternity prior to the father's death, paternity can be
established only by clear and convincing proof, which, of course, requires a
judicia l determ ination subs eque nt to the death of the fa ther. T he on ly
designation in the statute of the time within which that determination can be
made is "the reafter," or, in other words , after the father's death. H owever,
"there after" ca nnot b e unlim ited or u ncerta in, bec ause , as pre viously
discussed, the right of a child born out of wedlock to inherit cannot be
asserte d to disturb "rights of inhe ritance" tha t have "finally ve sted." 3
Con sequ ently, it ap pears that the limitatio n imp osed upon the righ t of a ch ild
born ou t of wedloc k to inherit from the child's n atural fathe r, where p aternity
has not been established prior to the father's death, is that paternity must be
prove n by cle ar and convin cing p roof pr ior to the vesting in intere st in
person s other tha n the claim ant-child.
In reaching its decision in Allen v. Harvey, the Court relied upon
Trimble v. Gordon, 430 U.S. 762, 97 S. Ct. 1459 (1977), in which the United
State s Sup reme Cour t held th at an Illin ois sta tute tha t perm itted on ly
legitimate children to inherit from a father who died intestate violated the
equal protection provisions of the United States Constitution. In that case,
the Su prem e Cou rt recog nized that the state h as a le gitima te intere st in
establishing an orderly method of disposition of intestate property, that the
more serious problems incident to proving the paternity of persons born out
of wedlock justify a more demanding standard of proof, and that the
dependability of titles to property passing by intestate succession must be
ensure d. Id. at 771, 97 S. Ct. at 1465.
A reasonable accommodation of these state interests and the
rights of pe rsons b orn out o f wedlock to inherit from their natura l fathers is to
3
The com mo n law conc ept o f seis in is st ill a bas ic prin ciple o f rea l prop erty law in
Ten nes see . Upo n the term inatio n of a free hold e state , "ther e m ust b e som e asc ertain ed pe rson in
existenc e capa ble of tak ing the se isin." Corne lius J. Moyn ihan, Introduction to the Law of Real
Prope rty 113 (1962).
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require that, in the absence of a statute addressing the issue, a claimant
must a ssert the rig ht to inherit w ithin the time allowed c reditors to a ssert a
claim again st the e state o f the pe rson w ho wa s the o wner o f the pro perty in
which an interest is claimed.4 Admittedly, this is a som ewhat arbitrary
determ ination . How ever, in the ab senc e of a s tatute, th is dete rmina tion is
necessary in order to resolve competing rights. In any event, this limitation
can be determined by familiar and well-defined rules, it meets constitutional
standards of notice to claimants,5 it protects the rights of creditors and
subsequent owners of the property, it poses no threat to "rights of
inheritance" beyond those which may now be posed by creditors and taxing
authorities , and it retain s the pre sent de gree of d epend ability in the titles to
intestate property. 6
In summary, a child born out of wedlock, whose paternity was
not adjud icated prio r to the dea th of the fath er, can e stablish the right to
inherit by intestate succession by asserting that right against the estate of
the deceased owner of the property in which an interest is claimed within the
time allowed for creditors to file claims against the estate and by establishing
paternity b y clear an d convin cing proo f.
In this case, Cecil Asberry has shown by clear and convincing
proof that he is the s on of S. D. (Sa m) Asbe rry; however, he did not assert
the right to inherit against the estate of S. D. (Sam) Asberry, the owner of
the property in which an interest is claimed, within the time required. The
estate was closed in 1968; Cecil Asberry's application for a determination of
patern ity was n ot ma de un til this suit w as filed in 199 3. How ever, th is
4
Where, as in Allen v. Harvey, the ow ner of the pro perty at is sue w as no t the cla iman t's
father, the adjudication of paternity may occur long after the death of the claimant's father and the
closing of his estate.
5
See Estate of Jenkins, 912 S.W .2d 134, 1 36 (Te nn. 1995 ).
6
The limitation stated also eliminates reliance upon the questionable use of the distinction
betw een "pros pec tive" a nd "re trosp ective " app licatio n of th e sta tute to dete rm ine its applic ability,
which was discussed in Allen v. Harvey and Mar sha ll v. Ma rsha ll.
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holding d oes no t resolve the rights of the parties in this case.
ESTOPPEL
Another issue is presented by the pleadings and proof. That
issue is whe ther V estel S mithe rs can rely upo n Cec il Asbe rry's de lay in
seeking an adjudication of paternity. Cecil Asberry asserts that Vestel
Smithers is estopped from denying his ownership of an interest in the
property. He bases the claim of estoppel upon the recitations made by
Orban Asberry in the instruments of conveyance executed by Orban
Asberry, Blanche Bilbrey, and Cecil Asberry, in which Vestel Smithers'
predeces sor in title declared that he , Blanche B ilbrey, and Cecil As berry
were the children a nd heirs a t law of the d ecede nt owne r.
Estoppel is an affirmative defense which must be raised in the
pleadings and proven by the party asserting it. Tenn. R. Civ. P. § 8.03;
Edwards v. Central Motor Co., 38 Tenn. App. 577, 277 S.W.2d 4l3, 416
(Tenn . Ct. App . 1954), a ff'd, 277 S.W .2d 417 (Tenn . 1955); Borches & Co. v.
Arbuckle Bros., 111 Tenn. 498, 78 S.W. 266 (1903). Estoppel by deed is an
affirmative d efense based on repre sentation s mad e by a pa rty in a deed .
Essentially, representations made by a party to a deed cannot be denied
later by that party or his privies.
"Estoppel by deed is a bar which precludes one
party to a deed and his privies from asserting as
against the other party and his privies any right or
title in derogation of the deed, or from denying the
truth of any materia l facts asse rted in it."
Denn y v. Wilso n Cou nty, 198 Tenn. 677, 281 S.W.2d 671, 674 (1955)
(quoting 28 Am. Jur. 2d Estoppel & Waiver § 4 (196 6)); see also: Blevins v.
Johns on Co unty, 746 S.W.2d 678, 684 (Tenn. 1988). "Where one
recog nizes anoth er's title o r is instru men tal in an other's acqu iring title h e is
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estopp ed to afterw ards de ny that title." Spicer v. Kimes, 156 S.W.2d 334,
337 (Ten n. Ct. App. 194 1). "The privies of a gra ntor or grantee a re
estopp ed to the s ame e xtent as the original pa rties to the d eed." Id.
Estoppel by deed applies where both parties were grantors or grantees, and
also where one party was a grantor and the other was a grantee. In either
case, an individual's p roperty righ ts are be ing recog nized by the other party
or parties signing the deed. That recognition of rights cannot be taken back
at a later time.
Blanche Bilbrey and Orban Asberry joined Cecil Asberry in the
execution of two warranty deeds and a lease. It was asserted in those
instruments that the grantors were the heirs of S. D. (Sam) Asberry. The
proof sh ows tha t they divided the proc eeds fro m the c onveya nces e qually.
Orban Asberry would be estopped from denying that Cecil Asberry owns a
one-third undivided interest in the real property. Vestel Smithers, as Orban
Asberry's successor in interest, is likewise estopped.
CONCLUSION
The ruling of the Court of Appeals, that Cecil Asberry is entitled
to a one-third und ivided interest in the real pro perty owned by Sam A sberry,
is affirmed. The case is remanded to the trial court for further proceedings
consistent with this opinion.
Costs are taxed to Vestel Smithers, for which execution may
issue.
______________________________
Reid, J.
Concur:
Birch, C.J., Drowota, Anderson,
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and White, JJ.
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