Bernice Richardson v. Virgil Cornes, Jr.

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2002-CT-01485-SCT

IN THE MATTER OF THE ESTATE OF KELA
RICHARDSON, DECEASED: BERNICE
RICHARDSON, ADMINISTRATRIX OF THE
ESTATE OF KELA RICHARDSON

v.

VIRGIL CORNES, JR., INDIVIDUALLY AND AS
THE NATURAL FATHER AND DULY APPOINTED
GUARDIAN OF VIRGIL CORNES, III, A MINOR,
JEROME CORNES AND JULIAN CORNES

ON WRIT OF CERTIORARI

DATE OF JUDGMENT: 07/03/2002
TRIAL JUDGE: HON. WILLIAM G. WILLARD, JR.
COURT FROM WHICH APPEALED: BOLIVAR COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT: ELLIS TURNAGE
TAMEKIA ROCHELLE GOLIDAY
ATTORNEYS FOR APPELLEE: WILLIAM HARVEY GRESHAM, JR.
CURTIS D. BOSCHERT
NATURE OF THE CASE: CIVIL - WILLS, TRUSTS, AND ESTATES
DISPOSITION: AFFIRMED IN PART; REVERSED IN PART
AND REMANDED - 02/17/2005
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

EN BANC.

EASLEY, JUSTICE, FOR THE COURT:

PROCEDURAL HISTORY

¶1. The Estate of Kela Richardson was opened in the Second Judicial District Chancery

Court of Bolivar County, Mississippi, as a result of the January 29, 1996, wrongful death of
Kela Richardson (Kela). Kela's mother, Bernice Richardson (Richardson), was appointed

administratrix of the estate and granted letters of administration. Richardson filed a petition

for determination of heirs-at-law and wrongful death beneficiaries. Richardson also filed a

petition for authority to settle a claim of the estate and wrongful death beneficiaries.

¶2. The trial court entered an order granting authority to settle a claim of the estate and

wrongful death beneficiaries. The trial court also entered an order determining heirs-at-law

and declaring wrongful death beneficiaries to be: Bernice Richardson (mother); Virgil Cornes,

Jr., (Cornes), (father); Virgil Cornes, III (brother); Julian Cornes (brother); Jerome Cornes

(brother); Chrysanthemum Richardson (sister); Nathan Duwell White (brother) and Kamia

White (sister).

¶3. Following recovery in the wrongful death case, Richardson filed a petition for

determination of heirs-at-law and wrongful death beneficiaries and to disinherit natural father,

Virgil Cornes, Jr., and his kindred, namely being Kela’s brothers, Virgil Cornes, III, Julian

Cornes and Jerome Cornes, pursuant to Miss. Code Ann. § 91-1-15(3)(d)(I) (Rev. 2004).

Richardson alleged that Cornes did not openly treat Kela as his child and did not provide any

financial or emotional support to Kela. The trial court denied the petition to disinherit Cornes

and Cornes' children because Richardson, as the administratrix, had previously filed sworn

pleadings in which she alleged that the biological father and his children were heirs-at-law.1

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Richardson as the administratrix had sworn under oath in her petition for
determination of heirs-at-law and wrongful death beneficiaries, filed August 11, 2000, that
Kela was "survived by the following heirs at law and wrongful death beneficiary [sic], under
Mississippi's Wrongful Death Act set forth in Mississippi Code Ann. Section 11-7-13 (cum.
supp. 1992): Bernice Richardson, mother; Virgil Cornes, Jr., father; Chrysanthemum
Richardson, sister; Nathan P. White, a minor brother; Kamie White, a minor sister; Virgil
Cornes, III, minor brother; Julian Cornes, a minor brother and Jerome Cornes, a brother."

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¶4. Richardson appealed the trial court's decision. A divided Court of Appeals reversed the

trial court's decision and denied Cornes' motion for rehearing on August 3, 2004. In re Estate

of Richardson, 2004 WL 1099993 (Miss. Ct. App. 2004).2

¶5. Unhappy with the decision of the Court of Appeals, Cornes filed a petition to this Court

for writ of certiorari. This Court granted Cornes’ writ of certiorari.

FACTS

¶6. Bernice Richardson and Virgil Cornes, Jr., were the natural parents of Kela Richardson.

Richardson and Cornes were never married. Kela died intestate in January 29, 1996, at the age

of twenty-two years old. Richardson was granted letters of administration and proceeded with

a wrongful death case on behalf of Kela's wrongful death beneficiaries. That suit yielded a

substantial settlement.

¶7. Meanwhile, Richardson filed numerous sworn pleadings declaring Kela's heirs-at-law

and wrongful death beneficiaries to be Richardson, her other children, Cornes, and Cornes'

other children. In his separate opinion Court of Appeals Judge Griffis noted, “[n]owhere did

Richardson or [Ellis] Turnage advise the chancellor that any of the named individuals were

‘potential’ heirs or indicate that there was any remaining controversy on or challenge to the

Cornes’ right of heirship or their right to receive a portion of the wrongful death settlement

proceeds.” Estate of Richardson, 2004 WL 1099993 at 14.

(emphasis added).
2
Judge Irving authored the majority decision for the Court of Appeals, in which
Chief Judge King, and Judges Thomas, Lee and Chandler concurred. Judge Griffis
concurred in part and dissented in part, joined by Presiding Judges Bridges, and Southwick
and Judge Myers.

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¶8. In both the estate action and the wrongful death action, Richardson was represented by

attorney Ellis Turnage. Turnage assisted Cornes and his children in filing their waivers of

process and joinders to the petition for authority to settle a claim of the estate and wrongful

death beneficiaries filed by Richardson to receive authority to settle Kela’s wrongful death

claim. Turnage also represented Cornes in creating a guardianship for his minor child for

purposes of handling the settlement proceeds.3

¶9. On November 29, 2000, the trial court entered an order that determined Kela's heirs-at-

law and declared her eight wrongful death beneficiaries to be Richardson, Richardson's other

children, Cornes and his children. On November 29, 2000, the trial court also entered a

separate order which granted Richardson the authority to settle the claims of the estate and the

wrongful death beneficiaries. That order directed Richardson to distribute the proceeds of the

settlement equally between Richardson, her children, Cornes, and his children. The order

stated:

That after acceptance of the settlement, Petitioner is authorized to distribute the
remainder of the settlement funds equally among the wrongful death

3
Judge Griffis stated:

Ellis Turnage apparently wore several hats. He represented Richardson in the
administration of Kela's estate. He represented the wrongful death beneficiaries
in the wrongful death action. He also represented Virgil Cornes, Jr. and Virgil
Cornes, III, in establishing a guardianship for Virgil Cornes, III. According to the
Corneses' brief, Turnage remains as the attorney of record for the guardianship
of Virgil Cornes, III, a minor whose interest he is directly opposed in the
petition to disinherit. While Turnage's apparent conflicting loyalties will be a
topic for a different forum, it clearly evidences that the Corneses relied on
Turnage to believe that no further proceedings were required to establish their
rights as Kela's legal heirs and wrongful death beneficiaries.

Estate of Richardson, 2004 WL 1099993, n. 4.

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 beneficiaries of Kela Richardson, deceased, with a 1/8 (one-eighth) share being
distributed to each of the 8 (eight) wrongful death beneficiaries.

¶10. On January 4, 2001, the trial court entered an order granting authority to Richardson,

as administratrix, to open an interest-bearing account and empowered her to deposit the $339,

077.80, in settlement proceeds into the account.

¶11. Despite the trial court's orders, Richardson did not distribute the settlement proceeds.

On June 6, 2001, Richardson filed a second petition to determine the heirs-at-law and wrongful

death beneficiaries. Richardson requested that the trial court disinherit Cornes and his kindred

pursuant to Miss. Code Ann. § 91-1-15(3)(d).4 On September 5, 2001, Cornes and Virgil

Cornes, III, filed a petition to enforce the trial court’s prior orders. Julian Cornes and Jerome

Cornes subsequently joined into the petition to enforce the trial court’s prior orders.

Thereafter, the trial court conducted a hearing.

¶12. On March 1, 2002, the trial court ruled that Richardson was prohibited, based on the

clean hands doctrine and estoppel, from maintaining her petition to disinherit. The order of

the trial court stated in pertinent part:

That the Administratrix is prohibited, based on the clean hands doctrine and the
doctrine of collateral estoppel, from maintaining her Petition to Disinherit
because the Administratrix has made numerous sworn statements that the
Cornes are heirs at law and wrongful death beneficiaries of the Decedent to this
Court and the Court has found them in fact to be heirs at law and wrongful death
beneficiaries of the Decedent, and the Administratrix cannot now make another

4
Miss. Code Ann. § 91-1-15(3)(d)(I) states:

(d) The natural father of an illegitimate and his kindred shall not inherit:
(I) From or through the child unless the father has openly treated the child as his,
and has not refused or neglected to support the child.

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 sworn statement contrary to her prior sworn statements and receive a benefit to
the detriment of the Cornes.5

¶13. Richardson appealed, and the Court of Appeals reversed the decision of the trial court

and remanded for a hearing on the merits of the petition to disinherit Cornes.6

DISCUSSION

¶14. The Court of Appeals held that Richardson's pleadings did not operate as a waiver of

Cornes' obligation, under the statute governing inheritance from an illegitimate child, to prove

that he acknowledged and supported Kela during her lifetime. Estate of Richardson, 2004 WL

1099993 at 5. The Court of Appeals also held that Richardson was not barred under the

doctrine of unclean hands from seeking to disinherit Cornes and his children. Id. at 7. The

Court of Appeals found that Cornes and his children did not suffer any detriment as a result of

Richardson's petitioning to disinherit them, after admitting in her prior pleadings that they were

heirs-at-law of Kela. Id. at 7-8. The Court of Appeals also found that Richardson was not

barred under the doctrine of equitable estoppel from petitioning to disinherit Cornes and his

children. Id. at 8.

¶15. We disagree. The doctrine of unclean hands applies to the case at hand as determined

by the trial court. The doctrine of unclean hands provides that "he who comes into equity must

come with clean hands." Thigpen v. Kennedy, 238 So.2d 744, 746 (Miss.1970). In O'Neill

5
The dissent correctly notes that, although the chancellor used the term "equitable
estoppel" during the hearing and used "collateral estoppel" in the order, it is clear that the
chancellor determined that Richardson was estopped from making contradictory statements.
Estate of Richardson, 2004 WL 1099993 at 13.

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Cornes' cross-appeal regarding the award of fees to the Administratrix and to her
attorney are not at issue in the appeal to this Court.

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v. O’Neill, 551 So.2d 228, 233 (Miss. 1989), this Court further expounded upon the meaning

of unclean hands, stating: "[t]he meaning of this maxim is to declare that no person as a

complaining party can have the aid of a court of equity when his conduct with respect to the

transaction in question has been characterized by wilful inequity...." The Court in Brennan v.

Brennan, 605 So.2d 749, 752 (Miss.1992), held that "[t]he maxim should be applied by the

court sua sponte where it is shown to be applicable." See also Estate of Van Ryan v.

McMurtray, 505 So.2d 1015, 1019 (Miss. 1987) ("[t]his Court has held that when it is evident

by the facts of the case that the unclean hands doctrine is applicable, the chancellor has a duty

to apply that doctrine of its own motion."). As stated by Court of Appeals Judge Griffis:

Because of Richardson's and Turnage's actions and representations in obtaining
the waivers and joinders, in submitting the Heirship Petition and the Settlement
Petition and in obtaining the chancellor's approval of the orders determining
Kela's heirs and authorizing the settlement of the wrongful death action,
Richardson came before the court with unclean hands when she presented the
petition to disinherit and should not be allowed to benefit from such wilful
misconduct or such improper, unconscientious, or unjust conduct.

Estate of Richardson, 2004 WL 1099993 at 18.

¶16. Likewise, the doctrine of equitable estoppel applies to bar Richardson from seeking to

disinherit Cornes and his kindred. "The doctrine of equitable estoppel is based upon

fundamental notions of justice and fair dealing." O'Neill, 551 So. 2d at 232. The Court has

identified two elements that must be satisfied: "(1) that he [a party] has changed his position

in reliance upon the conduct of another; and (2) that he has suffered detriment caused by his

change of position in reliance upon such conduct." Id. at 232 (citing PMZ Oil Co. v. Lucroy,

449 So.2d 201, 206 (Miss. 1984)). In PMZ Oil, 449 So.2d at 206, this Court stated

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"[w]henever in equity and good conscience persons ought to behave ethically toward one

another the seeds for a successful employment of equitable estoppel have been sown." Judge

Griffis stated:

From the previous discussion of the facts of this case, the chancellor was within
his discretion to find that the Corneses relied upon the actions and
representations of Richardson and Turnage that they would be adjudicated as
Kela's wrongful death beneficiaries. The Corneses relied on their
representations of Richardson and Turnage in joining the Heirship Petition and
Settlement Petition. They suffered detriment because of the change in position
by Richardson and Turnage.

Estate of Richardson, 2004 WL 1099993 at 19.

¶17. We find that the doctrine of judicial estoppel also applies. Id. at 16. "Judicial estoppel

precludes a party from asserting a position, benefitting from that position, and then, when it

becomes more convenient or profitable, retreating from that position later in the litigation."

Dockins v. Allred, 849 So.2d 151, 155 (Miss. 2003). “Because of judicial estoppel, a party

cannot assume a position at one stage of a proceeding and then take a contrary stand later in

the same litigation.” Id. As Judge Griffis clearly stated:

Richardson and Turnage filed the pleadings that resulted in the case being
decided based on the equitable doctrines of judicial estoppel, unclean hands and
equitable estoppel, rather than on the statutory structure of Mississippi Code
Annotated Section 91-1-15(3). Had Richardson and Turnage taken a different
procedural route, i.e., shown candor and honesty with the chancellor, a different
result may have been obtained. Instead, they chose not to do so.

Estate of Richardson, 2004 WL 1099993 at 16.

¶18. The chancellor sits as the finder of fact, and "[t]he chancellor's findings of fact will not

be disturbed unless there is manifest error." Tice v. Shamrock GMS Corp., 735 So.2d 443,

444 (Miss. 1999) (citing Murphy v. Murphy, 631 So.2d 812, 815 (Miss. 1994); Bell v.

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Parker, 563 So.2d 594, 596-97 (Miss. 1990)). We find that the trial court did not err by

ruling that Richardson was now prohibited from pursuing her petition to disinherit Cornes and

Cornes' children should be affirmed. Accordingly, we reverse Court of Appeals' judgment and

affirm the judgment of the trial court to deny Richardson's petition to disinherit Cornes and

Cornes's children.

CONCLUSION

¶19. We find that the Court of Appeals erred in reversing the judgment of the trial court as

to the determination of heirs-at-law. Therefore, the judgment of the Court of Appeals is

reversed in part and rendered in part as to the determination of heir-at-law as discussed in the

opinion above. The judgment of the Second Judicial District Chancery Court of Bolivar

County is affirmed in part as to the determination of heirs-at-law.

¶20. The issue of the administratrix’s fees and attorney’s fees raised in Cornes’s cross-

appeal at the Court of Appeals was not presented to this Court on petition for certiorari.

Therefore, the judgment of the Court of Appeals is affirmed in part as to the award of

administratrix’s fees and attorney’s fees. The judgment of the Second Judicial District

Chancery Court of Bolivar County is reversed in part and remanded in part as to the issue of

administratrix’s fees and attorney’s fees in accordance with the judgment of the Court of

Appeals.

¶21. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED IN PART AND
RENDERED IN PART AS TO THE DETERMINATION OF HEIRS-AT-LAW. THE
JUDGMENT OF THE CHANCERY COURT OF THE SECOND JUDICIAL DISTRICT
OF BOLIVAR COUNTY IS AFFIRMED IN PART AS TO THE DETERMINATION OF
HEIRS-AT-LAW. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN
PART AND REMANDED IN PART AS TO THE AWARD OF ADMINISTRATRIX’S FEES
AND ATTORNEY’S FEES. THE JUDGMENT OF THE CHANCERY COURT OF THE

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SECOND JUDICIAL DISTRICT OF BOLIVAR COUNTY IS REVERSED IN PART AND
REMANDED IN PART AS TO THE AWARD OF ADMINISTRATRIX’S FEES AND
ATTORNEY’S FEES.

SMITH, C.J., WALLER, P.J., CARLSON, DICKINSON AND RANDOLPH, JJ.,
CONCUR. COBB, P.J., CONCURS IN PART AND DISSENTS IN PART WITH
SEPARATE WRITTEN OPINION JOINED BY GRAVES, J. DIAZ, J., NOT
PARTICIPATING.

COBB, PRESIDING JUSTICE, CONCURRING IN PART AND DISSENTING IN
PART:

¶22. The majority’s affirmance of the trial court’s decision to award wrongful death benefits

to Virgil Cornes and his three sons, when the record is devoid of any evidence that the statutory

requirements of Miss. Code Ann. §§ 11-7-13 & 91-1-15 (Rev. 2004) have been met, is simply

incorrect. It allows an award to which they might not be entitled and deprives the other

beneficiaries of an award they might receive. Therefore I must respectfully, but strongly,

dissent as to the heirship issue.7

¶23. Section 11-7-13 states in pertinent part that:

The provisions of this section shall apply . . . to the natural father on account of
the death of the illegitimate child or children, and they shall have all the
benefits, rights and remedies conferred by this section on legitimates, if the
survivor has or establishes the right to inherit from the deceased under
Section 91-1-15.

(Emphasis added).

¶24. Section 91-1-15 states in pertinent part that:

(3) An illegitimate shall inherit from and through the illegitimate’s natural
father and his kindred, and the natural father of an illegitimate shall inherit from
and through the illegitimate according to the statutes of descent and distribution
if:

7
However, the majority’s decision to reverse and remand to the trial court on the
issues of the administratrix fee and attorney fee is correct, and I concur on those issues.

10
 (a) The natural parents participated in a marriage ceremony. . . or
(b) There has been an adjudication of paternity or legitimacy
before the death of the intestate; or
c) There has been an adjudication after the death of the intestate,
based on 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 an adjudication of paternity is filed within one (1) year
after the death of the intestate or within ninety (90) days after the
first publication of notice to creditors to present their claims,
whichever is less . . .
(d) The natural father of an illegitimate and his kindred shall
not inherit:
(I) From or through the child unless the father has openly
treated the child as his, and has not refused or neglected to
support the child...

(Emphasis added).

¶25. Although the administratrix stated in her petition for authority to settle claim of estate

and wrongful death beneficiaries, filed on September 5, 2000, that the eight petitioners “have

been declared wrongful death beneficiaries by separate order of the court,” the record reveals

no such order signed until November 29, 2000. And that order does not mention anything

about the requirements of Section 91-1-15 having been met with regard to subsection © or (d).

It contains only a summary statement that the eight (including Virgil Cornes and his three sons)

are the sole and only heirs at law and wrongful death beneficiaries.

¶26. It is undisputed that Virgil Cornes was the natural father of the deceased, Kela

Richardson. However, the question as to whether he had complied with Section 91-1-15 was

never raised until June 6, 2001, when the administratrix filed a “petition for determination of

heirs and wrongful death beneficiaries and to disinherit the natural father and his kindred.” In

that petition she states numerous facts including, inter alia, that she became pregnant with Kela

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by Cornes; he abandoned her and provided no financial or emotional support during the

pregnancy or birth; he visited Kela only twice during her childhood (when she was 2 ½ and

again when she was 4 or 5 years old); and he never financially or emotionally supported Kela.

He did, however, attend her funeral and paid $300 toward her funeral. Cornes responded by

filing a petition to enforce the prior orders of the court, claiming that the first order was res

judicata, that he and his son should get their equal shares, and that the administratrix breached

her fiduciary duty and she should be sanctioned for filing a frivolous motion to disinherit him.

He did not dispute the allegations about his failure to support, etc. which are critical to the

proper application of Section 91-1-15.

¶27. This Court has recently recognized the absolute necessity of meeting the requirements

of Section 91-1-15 in order for a father and his kindred to claim wrongful death benefits

through a deceased illegitimate child. See Williams v. Farmer, 876 So.2d 300 (Miss. 2004);

Estate of Patterson v. Patterson, 798 So.2d 347 (Miss. 2001).

¶28. The record does not reveal that the chancery court ever even considered Section 91-1-

15. At a hearing on February 22, 2002, the administratrix’s petition to disinherit, as well as

Cornes’s petition to enforce the prior orders which found that he and his sons would share

equally, was before the chancery court. No testimony was heard, only arguments of counsel.

There was only very brief mention of Cornes’s petition, and clearly no determination was made

on the merits of the statutory requirements necessary to support Cornes’s inheritance claim.

The chancellor included many findings, but the two which are critical to the appeal before us

are: that the November 29, 2000, orders were not final judgments and that the administratrix

Bernice Richardson is prohibited by doctrines of clean hands and collateral estoppel from

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maintaining her petition to disinherit. He then ratified his prior orders, and ordered

Richardson to file a petition to close the estate and fully account for the funds to be distributed

in 8 equal shares. Still no mention was made regarding final judgment on M.R.C.P. 54(b).

¶29. Following a telephonic hearing on June 19, 2002, the chancellor filed an order on July

3, 2002, again reaffirming and incorporating the prior orders and finding all eight to be

included in the division of all funds. This order was certified final pursuant to M.R.C.P. 54(b).

On July 19, 2002, Richardson timely filed a motion for rehearing and to stay enforcement of

judgment pending appeal without supersedeas, in which she again pointed out that the orders

and record are silent as to the merits of her petition to disinherit. The chancellor granted, in

toto, the stay of enforcement pending appeal.

¶30. In my view, the fact that Bernice Richardson, in many pleadings, named all eight of the

petitioners as heirs at law and wrongful death beneficiaries, does not constitute unclean hands

sufficient to overcome the necessity to apply the proper statutory requirements to determining

the wrongful death beneficiaries. There is absolutely nothing in the record to indicate that

Bernice Richardson deliberately misrepresented or falsified who was entitled to inherit from

Kela Richardson. I dare say that it is a rare administratrix, even a highly educated one, who

knows the nuances and specifics of the laws of descent and distribution as applied in wrongful

death cases. And my research did not reveal any cases in which we have held this or similar

knowledge to be the duty of an administratrix. It was clear from the very beginning, from the

names of the petitioners and the information which Bernice provided, that there were

illegitimate children at issue. Even when, several years into this case, she filed the petition to

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set aside the prior orders and to disinherit the Corneses, the document prepared for her

signature still incorrectly listed all eight as heirs at law and wrongful death beneficiaries.

¶31. The Court of Appeals correctly found that an administratrix is under an affirmative duty

to disclose to a court the existence of known potential heirs and claimants. Miss. Code Ann.

§ 91-7-293 (Rev. 2004); Smith ex rel. Young v. Estate of King, 501 So.2d 1120, 1123 (Miss.

1987). In fulfilling this duty, an administratrix “is the arm of the court employed under the law

to collect and distribute the estate of the deceased . . . .” Id. at 1252 (quoting In re Will of

Hughes, 241 Wis. 257, 5 N.W.2d 791, 794 (1942)). When Richardson listed Virgil Cornes,

Jr., and his sons as heirs at law and wrongful death beneficiaries in pleadings before the

chancery court, she actually was fulfilling her duty under the law to disclose their existence.

Her numerous sworn statements regarding Cornes and his sons were actually to her detriment.

Thus, the majority is wrong to characterize Richardson’s actions in fulfilling her duties as

administratrix of Kela’s estate as “willful misconduct . . . improper, unconscientious . . . [and]

unjust conduct.” Maj. Op. ¶15 (quoting Court of Appeals’ separate opinion). Accordingly,

Richardson is not barred by the clean hands doctrine from maintaining her petition to disinherit

the Corneses.

Equitable Estoppel

¶32. Richardson is also not barred by the doctrine of equitable estoppel from adopting and

maintaining her petition to disinherit once she learned the statutory requirements which needed

to be satisfied in order to properly distribute the assets. There is no evidence that the

Corneses suffered detriment because of Richardson’s earlier pleadings. In fact, they benefitted

from her error because they were included from the outset, instead of being excluded under

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Section 91-1-15. Because the prior orders of the chancellor were not final, the Corneses were

still able to conduct an effective defense of their interests. The chancery court denied

Richardson’s petition to disinherit and found in favor of the Corneses. Thus, the Corneses

suffered no detriment and equitable estoppel cannot apply.

Judicial Estoppel

¶33. Finally, Richardson should not be barred by the doctrine of judicial estoppel from

maintaining her petition to disinherit. Richardson did not benefit from her earlier pleadings

listing the Corneses as potential heirs and beneficiaries. In fact, listing the Corneses was a

detriment to Richardson since, but for them, she was a potential heir and beneficiary to a much

larger share of Kela’s estate. Acknowledging the Corneses as potential heirs and beneficiaries

doubled the number of potential heirs and beneficiaries, thus lowering the resulting

inheritance. When a party does not benefit from the prior assertion, the doctrine of judicial

estoppel should not be applied. Thomas v. Bailey, 375 So.2d 1049, 1053 (Miss. 1979).

Accordingly, judicial estoppel is not applicable in this case.

¶34. In my view, the Corneses are entitled to their day in court to make their arguments. In

that regard, I agree with the Court of Appeals majority that the matter should be reversed and

remanded for an evidentiary hearing on the heirship issue. I respectfully disagree with the

majority’s holding that a chancellor can ignore statutory requirements and reduce the lawful

benefits due to innocent statutory beneficiaries, due to an administratrix’s error, which in no

way has been proved by the record to be intentional.

GRAVES, J., JOINS THIS OPINION.

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