FILED

September 3, 1996

Cecil W. Crowson

Appellate Court Clerk

September 3, 1996

FOR PUBLICATION

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

BLANCHE BILBREY AND CECIL (

ASBERRY, (

(

Plaintiffs-Appellees, (

(

(

( 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

O P I N I O N

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
1

The record does not show who received the rents from the real property owned by the

deced ent.

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Tenn. Code Ann. § 31-2-105(a)(2)(B) (Supp. 1995) in 1978. The record

supports the finding of paternity, but the claimant failed to establish the right

to inherit as required by the statute; however, the appellant is estopped to

deny the claimant's asserted interest in the decedent father's real property. 

THE CASE

S. D. (Sam) Asberry died intestate on June 12, 1966, survived

by two legitimate children, Orban Asberry and Blanche Bilbrey, and Cecil

Asberry, who was born out of wedlock. Orban Asberry qualified and served

as the administrator of his father's estate. The adm inistration of the estate

was closed on the 12th day of August, 1968, and the decedent's personalty

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 disposition was made of any portion of the real property

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

warranty deed executed by Orban Asberry, Blanche Bilbrey, and Cecil

Asberry. The deeds identified the grantors as "being the only children and

heirs at law of S. D. Asberry." The proceeds from the sale of the land were

divided equally among Orban Asberry, Blanche Bilbrey, and Cecil Asberry. 

In 1993, prior to the filing of the complaint in this case, Orban Asberry,

Blanche Bilbrey, et vir, and Cecil Asberry, et ux, executed an oil and gas

lease of real property owned by S. D. (Sam) Asberry at the time of his death. 

The record also shows that the proceeds from the sale of timber cut on the

land were divided among Orban Asberry, Blanche Bilbrey, and Cecil

Asberry.
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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Orban Asberry died in 1993. He devised all of his property to

his stepson, Vestel Smithers. 

Soon after Orban Asberry's death, Blanche Bilbrey and Cecil

Asberry filed this suit, seeking an adjudication that Blanche Bilbrey, Cecil

Asberry, and Vestel Smithers are tenants in common of the real property

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 Cecil Asberry owns any interest in the real property. 

The trial court found for the plaintiffs and held that Cecil

Asberry by intestate succession became the owner of a one-third undivided

interest in his father's real property. The Court of Appeals affirmed.

ANALYSIS

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 of 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) (Supp. 1995).2
(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.

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In Allen v. Harvey, there had not been an adjudication of

paternity prior to the natural father's death. Even though the statute

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

sanctioning inheritance if the father-child relationship is clearly established,"

568 S.W .2d at 834, and held that paternity for the purpose of "inheritance,"

could be determined after the death of the father, upon "clear and

convincing proof" provided "rights of inheritance have not finally vested." Id.

at 835. The Court stated that application of the decision to other cases

would be prospective 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

condemnation proceeding by the State in which the owner of the property

died during the pendency of the case. The claimant's right to inherit was

dependent upon the determination that he was the child of the owner's

deceased brother. Consequently, there could be no claim that "rights of

inheritance" had vested, and the issue was not discussed 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 inheritance have not finally 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
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Marshall v. Marshall, 670 S.W.2d 213 (Tenn. 1984). In Marshall v. Marshall,

the Court applied the decision in Allen v. Harvey "retrospectively" and held

that a child born out of wedlock could inherit from his intestate father, who

had died in 1975 survived by a widow and collateral 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 be allowed to disturb vested rights; nor does it

address the time within which the right of inheritance must be asserted,

except to find that the "defendants in the instant case have not acted in

reliance upon the precedent overruled by Allen . . . ." Id. Nevertheless, the

effect of the Marshall decision was that three and one-half years after the

death of the owner of the property, the fee simple title to the property,

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

wedlock. The decision obviously disturbed vested property rights, despite its

focus on "prospective" and "retrospective" applications of the statute. 

Consequently, 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 issue was raised in the trial court and the Court of Appeals in

this case. The trial court ruled that title had not vested in the decedent'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

immediately upon his death in 1966, that court apparently found that,

pursuant to Allen v. Harvey and Marshall v. Marshall, 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 that neither the decision of the Court of Appeals nor the trial court

is entirely correct. Both courts, as well as this Court in Marshall v. Marshall,

ignored the decision in Allen v. Harvey that an adjudication of paternity

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 property of an intestate decedent shall

vest immediately upon death of the decedent in

the heirs as provided in § 31-2-104. . . .

Tenn. Code Ann. § 31-2-103(a) (Supp. 1995). For purposes of 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

thereafter by clear and convincing proof.

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. 
3

The com mo n law conc ept of seis in is still a bas ic prin ciple o f real prop erty law in

Ten nes see. Upo n the term ination of a freehold e state , "ther e m ust be 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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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

judicial determ ination subsequent to the death of the father. The only

designation in the statute of the time within which that determination can be

made is "thereafter," or, in other words, after the father's death. However,

"thereafter" cannot be unlimited or uncertain, because, as previously

discussed, the right of a child born out of wedlock to inherit cannot be

asserted to disturb "rights of inheritance" that have "finally vested."3

Consequently, it appears that the limitation imposed upon the right of a child

born out of wedlock to inherit from the child's natural father, where paternity

has not been established prior to the father's death, is that paternity must be

proven by clear and convincing proof prior to the vesting in interest in

persons other than the claimant-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

States Supreme Court held that an Illinois statute that permitted only

legitimate children to inherit from a father who died intestate violated the

equal protection provisions of the United States Constitution. In that case,

the Supreme Court recognized that the state has a legitimate interest 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

ensured. Id. at 771, 97 S. Ct. at 1465.

A reasonable accommodation of these state interests and the

rights of persons born out of wedlock to inherit from their natural fathers is to
4Where, as in Allen v. Harvey, the ow ner of the pro perty at is sue w as no t the claiman 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" and "re trosp ective " application of th e statute to determine its applic ability,

which was discussed in Allen v. Harvey and Mar shall v. Ma rsha ll.

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require that, in the absence of a statute addressing the issue, a claimant

must assert the right to inherit within the time allowed creditors to assert a

claim against the estate of the person who was the owner of the property in

which an interest is claimed.4 Admittedly, this is a som ewhat arbitrary

determ ination. However, in the absence of a statute, this determination 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 retains the present degree of dependability in the titles to

intestate property. 6

In summary, a child born out of wedlock, whose paternity was

not adjudicated prior to the death of the father, can establish 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 by clear and convincing proof.

In this case, Cecil Asberry has shown by clear and convincing

proof that he is the son of S. D. (Sam) Asberry; 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

paternity was not made until this suit was filed in 1993. However, this
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holding does not resolve the rights of the parties in this case. 

ESTOPPEL

Another issue is presented by the pleadings and proof. That

issue is whether Vestel Smithers can rely upon Cecil Asberry's delay 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'

predecessor in title declared that he, Blanche Bilbrey, and Cecil Asberry

were the children and heirs at law of the decedent owner. 

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), aff'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 defense based on representations made by a party 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 material facts asserted in it."

Denny v. Wilson County, 198 Tenn. 677, 281 S.W.2d 671, 674 (1955)

(quoting 28 Am. Jur. 2d Estoppel & Waiver § 4 (1966)); see also: Blevins v.

Johnson County, 746 S.W.2d 678, 684 (Tenn. 1988). "Where one

recognizes another's title or is instrumental in another's acquiring title he is
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estopped to afterwards deny that title." Spicer v. Kimes, 156 S.W.2d 334,

337 (Tenn. Ct. App. 1941). "The privies of a grantor or grantee are

estopped to the same extent as the original parties to the deed." 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 property rights are being recognized 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 shows that they divided the proceeds from the conveyances equally. 

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 undivided interest in the real property owned by Sam Asberry,

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.