IN THE SUPREME COURT OF MISSISSIPPI
NO. 2002-CA-00969-SCT
BRADLEY TEW
v.
ESTATE OF INFANT JANE DOE, DECEASED
DATE OF JUDGMENT: 5/13/2002
TRIAL JUDGE: HON. JOHN C. LOVE, JR.
COURT FROM WHICH APPEALED: NESHOBA COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT: JAMES A. WILLIAMS
EDWARD NICHOLAS KRAMER, III
ATTORNEY FOR APPELLEE: STEVEN DETROY SETTLEMIRES
NATURE OF THE CASE: CIVIL - WILLS, TRUSTS, AND ESTATES
DISPOSITION: AFFIRMED - 11/06/2003
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE McRAE, P.J., EASLEY AND GRAVES, JJ.
GRAVES, JUSTICE, FOR THE COURT:
¶1. Unborn infant Jane Doe was killed along with her mother, Jennifer Parker Smith, in an
automobile accident on May 31, 1999, in Neshoba County, Mississippi. At the time of her
death, Smith was in her late third trimester of pregnancy with unborn Jane Doe.
¶2. Jennifer Smith was married to David Smith at the time of her death. However, they
were separated and living apart from one another since December 1994. David Smith executed
an affidavit stating that he was not the father of Jane Doe. Further, the chancery court
adjudicated that Bradley Tew was the natural father of Jane Doe.
¶3. Prior to the trial court adjudicating Tew as the natural father, a Petition to Determine
Heirs was filed pursuant to Miss. Code Ann. § 11-7-13 (1972), by the Administratrix of the
Estate of Jane Doe, Sharmyn Parker, who is the maternal Aunt of Jane Doe. The Petition was
joined by Clayton Parker and Martha Munn, the maternal grandparents of Jane Doe.
¶4. At the hearing to determine heirs, the maternal relatives raised the one-year limitation
established by Miss. Code Ann. § 91-1-15 (Rev. 1994), in that Tew had taken no action to be
declared the father of Jane Doe until summons was issued on the petition to determine heirs.
Tew and his witnesses testified that Tew knew of the pregnancy, the accident and subsequent
deaths of both Smith and Jane Doe. However, Tew did not make any acknowledgment of the
horrific incident.
¶5. On April 10, 2002, the chancellor rendered a written opinion finding that Tew was the
natural father of Jane Doe, deceased. The chancellor concluded that Tew had failed to comply
with the requirement of § 91-1-15 (3)(c) in that he had taken no action to be declared the father
of Jane Doe within one year of her death. The chancellor further found that the statute was
constitutional as applied to Tew. Hence, Tew raises the following issues on appeal:
I. WHETHER THE TRIAL COURT ERRED IN FINDING THAT THE
ADMINISTRATRIX DID NOT QUALIFY AS AN EXECUTRIX DE SON
TORT DURING THE ONE YEAR PERIOD FOLLOWING THE DEATH
OF JANE DOE.
II. WHETHER SECTION 91-1-15(3) OF THE MISS. CODE ANN. IS
CONSTITUTIONAL AS APPLIED TO BRADLEY TEW.
DISCUSSION
EXECUTRIX DE SON TORT
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¶6. Tew argues that the chancellor erred in finding that the administratrix was not de son
tort since she knew of the wrongful death claim of Jane Doe and wilfully concealed it. Tew
avers that he should be excused from the statutory period because of the administratrix’s
conduct and that he should be declared the rightful and exclusive wrongful death beneficiary.
¶7. The relevant statute to this controversy is § 91-1-15 (3)(c), Miss. Code Ann. (1972, as
amended) which states:
[T]he natural father of an illegitimate . . . shall inherit from and through the
illegitimate according to the statutes of descent and distribution if . . . there has
been an adjudication of paternity after the death of the intestate based upon clear
and convincing evidence, in an heirship proceeding under sections 91-1-27 and
91-1-29. However, no such claim of inheritance shall be recognized unless
the action seeking adjudication of paternity is filed within one (1) year
after the death of the intestate . . . .
¶8. The chancellor recognized that an exception to this one (1) year limitation can exist
under certain circumstances, including the situation where a person who is attempting to take
from the estate of the intestate intermeddles with the assets of the estate and/or assumes the
role of administratrix without legal authority qualifies as an executrix de son tort. The
position of executrix de son tort is defined as:
(O)ne who, without authority from the deceased or the court of probate,
assumes, by interference with the estate of the deceased, to act as executor or
administrator and performs such acts with respect to the personalty of that
estate as can legally be done only by a properly appointed executor or
administrator.' 21 Am.Jur. Executors and Administrators s 825 (1939). But, as
indicated by the term itself (which means executor in his own wrong) such an
office is implied only for the purpose of this intermeddler's being sued or made
liable for the assets with which he has intermeddled. Id. at 837. See s 617,
Miss.Code 1942 Ann. (1956); Holmes v. Holmes, 154 Miss. 713, 123 So. 865
(1929); 34 C.J.S. Executors and Administrators s 1063.
Murdock Acceptance Corp. v. Woodham, 208 So.2d 56, 60 (Miss. 1968).
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¶9. Upon review of all the evidence presented at trial, the chancellor found that Parker did
not engage in conduct sufficient to render herself an executrix de son tort within the one year
period following the death of Jane Doe. The chancellor opined that the determination was
based upon the absence of testimony that Parker took any action with respect to the assets of
the estate of Jane Doe. The chancellor stated in pertinent part:
Here, there is no evidence Sharmyn Parker, the administratrix, took any action
relative to the assets or estate of Baby Jane Doe during the period of May 31,
1999 through May 31, 2000. There is nothing in the record to indicate that she
even had any idea that there were any assets until the estate was opened on June
13, 2001. With these facts, there is noting to indicate that she took any action
as an administratrix de son tort prior to May 31, 2000.
¶10. A chancellor’s findings of fact should not be disturbed unless manifestly wrong or
clearly erroneous. Jundoosing v. Jundoosing, 826 So.2d 85, 88 (Miss. 2002); In re Estate
of Brewer, 755 So.2d 1108, 1111 (Miss. Ct. App. 1999). We conclude that the trial court’s
findings are not manifestly wrong.
CONSTITUTIONAL CHALLENGE
¶11. Tew argues that § 91-1-15(3)(c) is unconstitutional as a denial of equal protection
guaranteed under the Fourteenth Amendment to the United States Constitution, in that the one-
year limitation for paternity is a suspect classification.
¶12. M.R.C.P. 24(d) provides that a party challenging the constitutionality of a statute is
required to give notice to the Attorney General “within such time as to afford him an
opportunity to intervene and argue the question of constitutionality.” In the instant case, Tew
never provided notice of his constitutional challenge to the Attorney General in the trial court.
Additionally, in Estate of Patterson v. Patterson, 798 So.2d 347, 351 (Miss. 2001), this Court
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declined to address the constitutional challenge because the appellant did not raise the issue
below and “did not give the required notice of this issue to the State Attorney General in either
the trial or here.” See also M.R.A.P. 44 (similar procedure on appeal).
¶13. Contrary to case law as referenced above in Estate of Patterson, the chancery court
found that the constitutional challenge was not procedurally barred. The chancellor proceeded
to rule on the merits of the challenge and upheld the statute’s constitutionality. ¶14.
Because Tew failed to raise his constitutional challenge as required by M.R.A.P. 44,
we decline to address this issue.
CONCLUSION
¶15. Parker did not engage in conduct sufficient to render herself an executrix de son tort
within the one-year period following the death of Jane Doe. Tew’s claim is barred by his
failure to comply with Miss. Code Ann. § 91-1-15(3)(c).
¶16. We decline to address Tew’s challenge to the constitutionality of the statute. The trial
court’s judgment is affirmed.
¶17. AFFIRMED.
PITTMAN, C.J., SMITH, P.J., WALLER, COBB, EASLEY AND CARLSON, JJ.,
CONCUR. McRAE, P.J., CONCURS IN RESULT ONLY. DIAZ, J., NOT
PARTICIPATING.
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