                     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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