                           IN THE SUPREME COURT OF MISSISSIPPI
                                    NO. 1998-CA-01573-SCT
IN THE MATTER OF THE ESTATE OF ROBERT L. JOHNSON, DECEASED: ROBERT
M. HARRIS AND ANNYE C. ANDERSON
v.
CLAUD L. JOHNSON

DATE OF JUDGMENT:                      10/15/1998
TRIAL JUDGE:                           HON. JON M. BARNWELL
COURT FROM WHICH                       LEFLORE COUNTY CHANCERY COURT
APPEALED:
ATTORNEYS FOR                          JAMES W. CRAIG
APPELLANTS:
                                       DEBRA M. BROWN
                                       STEPHEN E. NEVAS
ATTORNEYS FOR APPELLEE:                JAMES WARREN KITCHENS
                                       CHARLES J. SWAYZE JR.
                                       NANCY A. OLSON
                                       JEFFREY LYNN ELLIS
NATURE OF THE CASE:                    CIVIL - WILLS, TRUSTS AND ESTATES
DISPOSITION:                           AFFIRMED - 06/15/2000
MOTION FOR REHEARING                   7/14/2000; denied 10/5/2000 & Op. Modified at Para. 17, Para.
FILED:                                 20 deleted
MANDATE ISSUED:                        10/12/2000



     EN BANC.

     MILLS, JUSTICE, FOR THE COURT:

¶1. Robert L. Johnson ("Johnson") died intestate on August 16, 1938, in Leflore County, Mississippi, at the
age of 27. Though he was an apparent indigent at the time of his death, he left behind numerous musical
recordings. His musical legacy of Mississippi blues recordings has gained interest and acclaim through the
decades, resulting in the concomitant growth of his estate. Naturally, his heirs are now interested in his
accomplishments.

¶2. Caroline Thompson ("Thompson") was the last surviving sibling of Johnson. Thompson died testate on
February 20, 1983, in Maryland. She devised her entire estate, including all rights and claims to the works
of Johnson, to her grandson, Robert M. Harris, and her half-sister, Annye Anderson, in equal shares.

¶3. On June 1, 1989, fifty-one years after Johnson's death, his estate was opened in the Chancery Court of
Leflore County, Mississippi. Two years later, on May 31, 1991, Johnson's estate received its first royalty
payments. The administrator, Willis Brumfield, subsequently filed a petition to determine heirship. On
March 10, 1992, Claud L. Johnson ("Claud"), answered the petition, claiming to be the illegitimate son of
Johnson. Claud was born on December 16, 1931.

¶4. On June 22, 1992, the chancery court dismissed Claud's claim to heirship, asserting his action was time-
barred under Miss. Code Ann. § 91-1-15(d)(ii). This Court, however, reversed and remanded the case to
the chancery court for a hearing on the merits of Claud's claim to heirship. See In re Estate of Johnson,
705 So. 2d 819, 823 (Miss. 1996), cert. denied, Harris v. Johnson, 522 U.S. 1109, 118 S. Ct. 1037,
140 L.Ed.2d 104 (1998). On October 12-15, 1998, the chancery court conducted an evidentiary hearing
to determine heirship, wherein it adjudicated Claud to be "the biological son and the sole heir at law of the
decedent, Robert L. Johnson."

¶5. Aggrieved by the chancery court's decision, Robert Harris and Annye Anderson (hereafter
"Appellants") timely perfected this appeal.

                                       STANDARD OF REVIEW

¶6. "Findings of a Chancellor will not be disturbed or set aside by this Court on appeal unless we are of the
opinion the decision made by the trial court was manifestly wrong and not supported by substantial, credible
evidence, or unless an erroneous legal standard was applied." Sarver v. Sarver, 687 So. 2d 749, 753
(Miss. 1997). See also Pittman v. Pittman, 652 So. 2d 1105,1108 (Miss. 1995).

                                              DISCUSSION

                                                      I.

   WHETHER THE CHANCERY COURT'S DECISION IS SUPPORTED BY CLEAR AND
                      CONVINCING EVIDENCE

¶7. An illegitimate child may inherit through a natural parent when there has been an adjudication of
paternity based upon clear and convincing evidence. Miss. Code Ann. § 91-1-15(3)(c)(1994). Appellants
assert that the chancery court erred in adjudicating Claud to be the biological son of Johnson. Specifically,
they argue the court's decision was not supported by clear and convincing evidence. Further, appellants
contend that the witness testimony was contradictory, the chancellor's decision was based on hearsay, and
that no DNA evidence was presented at trial. After reviewing the record, we disagree and find the
chancery court did not err by adjudicating Claud to be the biological son of Johnson.

¶8. At trial, Claud testified that he had been told from birth that Robert Johnson, the blues singer, was his
father. Claud also testified that he remembers seeing Johnson at his home on two occasions and identified
pictures of Johnson as the man he knew to be his father. Additionally, Claud testified that he abandoned his
step-father's surname of Cain and began using the last name Johnson upon reaching adulthood, long before
the estate was opened. Claud also presented his birth certificate, which had been on file with the Mississippi
Bureau of Vital Statistics since 1931. It lists "R.L. Johnson, laborer" as Claud's father.

¶9. Claud's mother, Virgie Mae Cain, testified by video deposition that Robert Johnson was the father of
her first born son, Claud, and that Johnson was the only man with whom she had been intimate at the time
of conception. She further stated that Johnson came to see Claud after he was born. Virgie Mae's testimony
was corroborated by Pearlina Strickland, her childhood friend, who testified that it was general knowledge
in the community that Johnson was Claud's father. Mack Brown, Virgie Mae's nephew, also testified at trial
that he remembered seeing Johnson, Virgie Mae, and Claud together when Claud was a baby. Brown
positively identified Johnson from a picture presented at trial and stated that it was general knowledge in the
community that Claud was Johnson's son.

¶10. Finally, Claud offered the deposition testimony of Eula Mae Williams, another childhood friend of
Virgie Mae. The eighty-year old Williams testified that she and Claud's mother were friends before, during,
and after the time Virgie Mae became pregnant. Eula Mae testified that she and Virgie Mae grew up in the
same crossroads community in Copiah County and, as young girls, attended community events together.
They shared secrets and obviously relied upon one another for support and companionship. They were also
prone to sneak out to "house parties" where they would listen to the music of various blues musicians. It
was at one of these celebrations that Virgie Mae met Johnson. Contrary to Virgie Mae's assertion that no
one ever saw Johnson and her engage in sexual intercourse, Eula Mae testified that she did in fact see Virgie
Mae and Johnson engage in sexual intercourse in the spring prior to Claud's birth in December. The
resulting courtship is best expressed by Eula Mae herself in response to pretrial questioning by attorney
Victor McTeer, wherein Eula Mae described an incident where she, her boyfriend, Virgie Mae, and
Johnson all went for a "walk" in the spring of 1931:

      Q: All right, so you walked off the road, correct?

      A: Right.

      Q: And you started to kiss and do whatever people do?

      A: M-hm.

      Q: All right. Now, when you started that, what was Virgie and --

      A: Doing the same thing we were.

      Q: How do you know? You were sitting there watching them while you were -

      A: We was both standing up.

      Q: Oh, so both of you were standing up in the woods?

      A: Sure, we was standing up out there in the woods.

      ***

      Q: Excuse me, I haven't finished yet. Virgie and Robert, were they kissing and standing up?

      A: Right.

      Q: Was there ever a time when you were not looking at them?

      A: Well, yes.

      Q: I see. Did you at any point in time remove your clothing?
A: Well, had to.

Q: Okay. Did you observe them remove their clothing?

A: Sure.

Q: You were sitting there watching someone else do this?

A: I done told you.

Q: Well, let me, let me share something with you, because I'm really curious about this. Maybe I have
a more limited experience. But you're saying to me that you were watching them make love?

A: M-hm.

Q: While you were making love?

A: M-hm.

Q: You don't think that's at all odd?

A: Say what?

Q: Have you ever done that before or since?

A: Yes.

Q: Watch other people make love?

A: Yes, I have done it before. Yes, I've done it after I married. Yes.

Q: You watched other people make love?

A: Yes, sir. Yes, sir.

Q: Other than...other than Mr. Johnson and Virgie Cain.

A: Right.

Q: Really?

A: You haven't?

Q: No. Really haven't.

A: I'm sorry for you.

Q: Well, I appreciate that. And perhaps I need the wealth of experience that you have. But share with
me this. Did you actually watch them engage in the act? You actually watched that?

A: Yes.
      Q: When they were engaging in the act, was your husband (her boyfriend at the time) watching, too?

      A: Sure.

      Q: Okay. Did they watch you?

      A: Sure.

      Q: And you watched them watch you?

      A: Yes.

Eula Mae also testified that Virgie Mae told her she was pregnant with Johnson's baby in May of 1931, the
year of Claud's birth. Moreover, Eula Mae testified as follows about a chance meeting with Johnson several
years after Claud's birth:

      Q: Now, ma'am, when you saw R.L. Johnson there at Shelby some years after Claud's birth, did you
      talk to him at all?

      A: Yes, we talked about the baby.

      Q: Tell us about that conversation...

      A: Well, I was just asking when was he coming back down here. He said, "Well, I'm not coming
      back." He said, "I'm going pretty good right now." He say, "I'll be up here." He said, "She done got
      married now, and she got a husband and children."

¶11. The above testimony is more than sufficient to establish the credibility of the witness and to prove the
facts asserted. It rings true.

¶12. The appellants also complain that no DNA evidence was presented at trial to support the chancery
court's ruling. Such evidence would be nigh impossible to obtain since Johnson's grave site is unknown. As
far as we know, Johnson is buried "down by the highway side, so [his] old evil spirit can get a Greyhound
bus and ride."(1)

¶13. The chancellor had to deal with the evidence before him, not such evidence as might be available in a
perfect world. Chancellor Barnwell correctly applied the clear and convincing standard to this issue, stating:

      The question is, is whether or not the evidence presented by Claud Johnson is sufficiently credible, is
      sufficiently clear, and sufficiently convincing enough for this Court to determine whether or not he in
      fact is the child of Robert Johnson, the blues singer, the one whose picture we have in evidence.

As noted above, the findings of a chancellor will not be disturbed upon appeal unless the trial court's
decision was manifestly wrong and not supported by substantial, credible evidence, or where an erroneous
legal standard was applied. Sarver, 687 So. 2d at 753. In the present case, the chancellor applied the
correct clear and convincing standard. Claud presented testimony and documentation which supported his
assertion that Johnson was indeed his biological father. Although some of the testimony was contradictory,
we realize and expect conflict, especially in a paternity suit based on a birth which occurred nearly seventy
years ago. We find the chancellor's decision to be well-reasoned, rational and supported by substantial and
credible evidence. This issue is without merit.

                                                          II.

      WHETHER THE BIRTH CERTIFICATE OF CLAUD JOHNSON WAS PROPERLY
                        ADMITTED INTO EVIDENCE

¶14. Appellants assert that the birth certificate of Claud is not in total conformity with the rules and
regulations of the Mississippi Department of Health and, therefore, should not have been admitted into
evidence. In 1931, Rule 22(7) of the Mississippi Board of Health's Bureau of Vital Statistics provided that
each "certificate of birth shall contain the...[f]ull name of the father, except for illegitimate children."(2) In the
present case, the birth certificate of Claud, who was illegitimate, lists R.L. Johnson as the father, even
though Rule 22(7) prohibited such disclosure at that time. Consequently, the appellants argue Claud's birth
certificate should not have been admitted into evidence.

¶15. We first note that this case was tried without a jury. We deem judges capable of ignoring inadmissible
evidence such as hearsay. State ex rel. Patterson v. Sims, 253 Miss. 458, 465, 176 So. 2d 261, 264
(1965). Additionally, we are aware that the equal protection rationale in Trimble v. Gordon, 430 U.S.
762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977), might render the birth certificate in question fully admissible to
the same extent enjoyed by children born of a lawful marriage. However, we need not reach the
constitutional parameters in this opinion.

¶16. The statement in question possesses sufficient indicia of trustworthiness to merit admissibility under
M.R.E. 804(b)(4)(B) and M.R.E. 803(24). M.R.E. 804(b)(4) reads as follows:

      (b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is
      unavailable as a witness:

      (4) Statement of Personal or Family History. (A) A statement concerning the declarant's own birth,
      adoption, marriage, divorce, legitimacy, relationship by blood, adoption or marriage, ancestry, or
      other similar fact of personal or family history, even though declarant had no means of acquiring
      personal knowledge of the matter stated; or (B) a statement concerning the foregoing matters, and
      death also, of another person, if the declarant was related to the other by blood, adoption, or
      marriage or was so intimately associated with the other's family as to be likely to have accurate
      information concerning the matter declared.

¶17. Additionally, M.R.E. 803(24) provides in relevant part that:

      A statement not specifically covered under any of the foregoing exceptions but having equivalent
      circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as
      evidence of a material fact; (B) the statement is more probative on the point for which it is offered
      than any other evidence which the proponent can procure through reasonable efforts; and (C) the
      general purposes of these rules and the interests of justice will best be served by admission of the
      statement into evidence.

In the present case, Claud's grandmother, Mrs. Marilda Smith, was the declarant as outlined under M.R.E.
804(b)(4)(B). At the time she provided the information found on the certificate, Claud's grandmother had
no interest in the outcome of this case. She had no motive to falsify the birth certificate because Johnson's
music did not become financially successful until many years later. Further, the information listing R. L.
Johnson as the father on Claud's birth certificate went uncontested for almost 60 years and is consistent
with the later testimony of Claud's mother and her childhood friends. Consequently, the information listing R.
L. Johnson as Claud's father on the birth certificate possesses sufficient indicia to indicate trustworthiness.
The best interest of justice is served by allowing its admissibility. Therefore, this issue is without merit.

                                                      III.

   WHETHER THERE WAS CREDIBLE EVIDENCE AS TO THE CAUSE OF DEATH OF
                        ROBERT L. JOHNSON

¶18. Appellants briefly assert in a footnote that the chancery court failed to "give weight to the death
certificate which gave syphilis as the cause of Robert Johnson's death." Johnson died in 1938, some six
years after he allegedly fathered Claud. On the back of Johnson's death certificate, the registrar handwrote
that the plantation owner thought Johnson died from syphilis. Dr. Alfio Rausa, an expert in the field of public
health, testified that syphilis was much more prevalent among black men in the Mississippi Delta in 1939
than in other parts of the state. Dr. Rausa also viewed a picture of Johnson and noted that Johnson's
drooping eye could be a symptom of syphilis. Dr. Rausa further testified, however, that men with active
syphilis still have an 85% to 90% chance of fathering a child. Dr. Rausa concluded his testimony by stating
that he was unable to determine whether Johnson actually had syphilis based on the limited information
available.

¶19. The chancellor addressed the syphilis issue in his opinion as follows:

      The Court does not believe that there was sufficient proof to show that Robert Johnson had syphilis,
      or that he was impotent at the time of conception, and that would be an incredible stretch to make
      that assumption, although it's a possibility. But we're not dealing with possibilities, we're dealing with
      what is clear and what is convincing to the Court.

This Court agrees that insufficient proof existed to show Johnson had syphilis. Dr. Rausa clearly testified
Johnson could have died from a number of things and that syphilis was merely one possibility. Further, even
if we assume that Johnson did have syphilis, the testimony clearly indicates that Johnson still had An 85% to
90% chance of fathering a child.

                                               CONCLUSION

¶20. The chancellor did not err in adjudicating Claud L. Johnson to be the biological son of Robert L.
Johnson. Accordingly, the judgment of the Leflore County Chancery Court is affirmed.

¶21. AFFIRMED.

      PRATHER, C.J., PITTMAN AND BANKS, P.JJ., SMITH, WALLER, COBB AND DIAZ,
      JJ., CONCUR. McRAE, J., NOT PARTICIPATING.

1. Robert Johnson, Me and the Devil Blues (1937), compiled in SAMUEL CHARTERS, ROBERT
JOHNSON 76 (1973).

2. The passage of time fails to diminish this writer's pique at the condescending remarks of my brother,
Justice Banks, in In re Estate of Johnson, 705 So. 2d 819, 824 (Miss. 1996)(Banks, J., dissenting from
denial of motion for rehearing). This writer can only respond that, despite Justice Banks's characterization
of my work as "outdated and derogatory, and unbecoming," the prescient Justice Banks, subsequent to
making such remarks, has often and consistently referred to children born out of wedlock as illegitimate.
See Hogan v. Buckingham, 730 So. 2d 15, 19 (Miss. 1998).
