# FILED

September 3, 1996 Cecil W. Crowson Appellate Cou rt Clerk September 3, 1996 FOR PUBLICATION IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE

BLANCHE BILBREY AND C ECIL ( 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 rev iew the ri ght of a chi ld born out of wedlock to i nherit f rom his naturalfather who di ed prior to the amendment of1 The record does not show who r eceived the rents from the r eal propert

y owned by the deced ent.

-2- Tenn. C ode Ann . § 31-2-105(a )(2)(B) (Supp. 1 995) in 1978 . The record supports the finding of paterni ty, but the clai mant fail ed to establ ish the ri ght to inherit as required by the statu te; howe ver, the ap pellant is es topped to deny the claiman t's asserte d interest in the dece dent fathe r's real prop erty.

THE CASE
S. D. (Sam) Asberry

died intestate on June 12, 1966, survived by two legitim ate ch ildren, O rban A sberry and B lanch e Bilbre y, and C ecil Asberry, who was born out of wedl ock. Orban Asberry qualifi ed and served as the ad ministrato r of his fathe r's estate. T he adm inistration of th e estate was clos ed on th e 12th d ay of Aug ust, 1968 , and the d ecede nt's perso nalty was distri buted equall y between Orban Asberr y and Blanche Bil brey. At t he time of hi s father' s death, CecilAsberry made no clai m for a share of the personal estate.

No disp osition wa s mad e of any p ortion of the real prop erty owned by S. D. (Sam) Asberr y until1983. 1 In 1983, and agai n in 1986, portions of

the real pr

operty were conveyed to t he State of Tennessee by
warra nty dee d exec uted b y Orba n Asb erry, Bla nche Bilbrey , and C ecil Asberry. The deeds i dentifi ed the grantor s as "being t he only chi ldren and heirs at law of S. D. A sberry." The pro ceeds from the sale of the land were divided eq ually am ong O rban A sberry, B lanche Bilbrey, an d Cecil A sberry. In 1993, prior to the filing of the c omplaint in this cas e, Orban A sberry, Blanch e Bilbrey, et vir , and Ce cil Asberry , et ux , executed an oi l and gas lease of re al prope rty owned by S. D. (S am) A sberry at th e time of h is death. The record also shows that the pr

oceeds from the sal e of timber c ut on the land w ere div ided a mon g Orb an As berry, B lanch e Bilbre y, and C ecil Asberry.2 Tenn. Code Ann. § 31-2-105(a)(2)(B)states as fol lows: (a) If,for purposes of intesta te succession, a relationship of paren t and chil d must be establi shed to determine su ccession by,through, or from a person:

. . . (2) In cases n ot 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:

. . .

-3- Orban Asberry died in 19 93. He d evised a ll of his prope rty to his steps on, Ves tel Smith ers.

Soon after O rban A sberry 's dea th, Blan che B ilbrey an d Cec il Asbe rry filed th is suit, se eking an ad judica tion tha t Blanc he Bilb rey, Ce cil Asberr y, and Ve stel Sm ithers are te nants in c omm on of the re al prope rty owned by Sam Asberry at t he time of hi s death and that the land be sol d and the proceeds be di vided among the part ies equall y. The parti es stipul ated that S. D. ( Sam) Asberry's paternity of Cecil Asber ry could be pr oven by clear and convi ncing eviden ce; however, Smithers dis puted the al legation that Cec il Asberry o wns an y interest in th e real pro perty.

The trial cou rt found for the p laintiffs a nd he ld that C ecil Asberry by i ntestate s uccession became the owner of a one-thi rd undivi ded interest in his father's r

eal propert

y. The Court of

Appeals affi rmed.

ANALY SIS

Prior to 1978, a chil d born out of wedl ock could inherit fr om the natural f ather only

if ther e had been an adjudication of p aternit y prior to the death o f the father. See Tenn. Code Ann. § 31-206(2)(Supp. 1977). That law was changed in 1978 by this Cour t's deci sion in Allen v. Harvey , 568 S.W.2d 829 (Tenn. 1978), and t he subsequent enactment of an amendment to the statute which is present ly found at Tenn. Code Ann. § 31-2- 105(a)(2)(B) (S upp. 1995 ). 2(B) The paternity i s establi shed by an adjudication befo re the death of the fat her or is establ ished thereafter by clear and convi ncing proof,but the pat ernity establi shed under th is subdivis ion is ineffec tive to qualify the fa ther or the father's k indred to inheri t from or throu gh the chil d unless the f ather has openly treat ed the chil d as the father's, and has not refused to suppor

t the chi ld.

-4- In Allen v. Harvey , there had not been an adjudicat ion of paternity p rior to the na tural father's death. E ven thou gh the sta tute contained no pr

ovision at

that ti me for an adjudi cation of paternit y after the death of the father, this Court found "the pol icy of t hat Act to be o ne of sanction ing inherita nce if the fa ther-child re lationship is clearly esta blished," 568 S.W .2d at 834 , and he ld that pate rnity for the pu rpose o f "inheritanc e," could be deter mined after the de ath of the fat her, upon "cl ear and convinc ing proo f" provided "rights of inhe ritance ha ve not finally ve sted." Id. at 835. The Court stated that applicat ion of thedecision to other cases would b e prosp ective only. Id

.

The decision i n Allen v. Harveyturned on a fi nding of cl ear and convincingproof of paternity . The second condit ion, "wher e rights of inheritance have not vested," was not an issue in that case because it was a conde mnatio n proce eding b y the State in which th e owne r of the pro perty died during the pendency of the case. The cl aimant's ri ght to inh erit was depe nden t upon the de termin ation th at he w as the child of the ow ner's deceased brother. Consequently, there coul d be no claim that "rights of inheritanc e" had ve sted, and the issue was no t discuss ed by the Court.

The 1978 amendment to Tenn. Code Ann. § 31-2- 105 codifi ed the Court' s decision i n Allen v. Harvey , that paternity could be establ ished after t he death of t he father upon c lear and convi ncing proof. However, the statute di d not address t he second limit ation found in Allen v. Harvey , that "rights of inh eritance h ave not fina lly vested."

In the present

case, the Court

of Appeals based i ts decisi on that CecilAsberry is

entitl ed to a share of his natura l father's propert y upon-5-

Mars hall v. M arsha ll , 670 S.W.2d 213 (Tenn. 1984). In Mars hall v. M arsha ll , the Court appl ied the deci sion in Allen v. Harvey"retros pective ly" and h eld that a chi ld born out of wedlock coul d inherit from his i ntestate f

ather, who had die d in 1975 survived b y a widow and co llateral heirs. Id. at 215. The opinion, filed i n 1984, does not di scuss the stat ute or the hol ding in Allen v. Harveythat the claim will not b e allow ed to d isturb ve sted rig hts; no r does it address the t ime withi n which the r ight of i nheritance must be asserted, excep t to find th at the "d efend ants in the ins tant ca se ha ve not a cted in reliance upon the precede nt overruled by Allen . . . ." Id . Neverthel ess, the effect of the Mars hall decision was t hat three and one -half years after the death of the ow ner of the prope rty, the fee simple title to the prop erty, subject onl y to the wi dow's stat utory ri ghts, was di vested out of the decedent's hei rs at law andvested int o his son who was born ou t of wedloc k. The d ecision o bviously d isturbed v ested p roperty righ ts, despite its focus on "prospe ctive" and "re trospec tive" applica tions of the statute.

Conseq uently, neither the statute nor any opinion of this Court has addressed directly t he time within which a chil d born out of wedlock must assert t he right t o inherit by virt ue of his relations hip with h is natural father. That is sue w as rais ed in th e trial co urt and the Co urt of A ppea ls in this ca se. Th e trial co urt ruled that title h ad no t vested in the d eced ent's legiti mate children and, furt her, that Vestel Smither

s was estopped fr

om asserting any statute of li mitation. The Court of Appeals utili zed a different rat ion ale . I n re spon se to Smi the rs'ins istencethat t it le t o S. D. ( Sam) Asberry's real proper

ty had vested in the decedent 's legi timate hei rs at law imme diately upo n his dea th in 1966 , that court a pparen tly found tha t, pursuant to Allen v. Harvey and Mars hall v. M arsha ll , title also vested in Cecil Asberr

y upon the death of the fat her, even t hough there had been no adjudicat ion of paternity . The Court of Appeal s did not di scuss the stat ute of limitat ion or esto ppel. The deci sion by the Court of Appeals that title vested in the cl aimant upon the deat h of his father, even though there h ad been no adjudicat ion of paternity , left unresolved si gnificant issues r egarding the-6-

ownership of pr

operty. Applicati on of the rel evant rul es of law compels the conclusion tha t neither the decision of the Court of A ppeals nor the trial court is enti rely cor rect. Bot h courts, as well as t his Court i n Mars hall v. M arsha ll , ignored the dec ision i n Allen v. Harveythat an ad judication of patern ity subsequent to t he father' s death wil l not be al lowed to di sturb vested interests.
Determining t he appropriate applicat ion of thelimitation that vested ri ghts wil l not be di sturbed to t he statute allowing paternit y to be establi shed after t he father' s death requi res consider ation of t he law of real property, intestate succession, and equal protection. That considerat ion properly begins wit h the applicable stat utes. Section 31-2-103(a) pr ovides:

The real pro perty o f an inte state d eced ent sh all vest im med iately up on de ath of th e dec eden t in the heirs a s provide d in § 31-2 -104. . . .

Tenn . Code Ann. § 3 1-2-103 (a) (Sup p. 1995 ). For purp oses o f intestate succession, a person born out of wedlock is t he child of that person' s father if:
The paternit y is estab lished by an adjudicat ion before the deat h of the fat her or is establis hed thereafte r by clear a nd con vincing pro of.

Tenn. Code Ann. § 31-2-105( a)(2)(B) . Consequently , if t here has been an adjudicat ion of paternity prior to the death of

the father , the chi ld born out of wedlock inher its by i ntestate s uccession as a l egitimate child, and titl e to the decedent's r

eal propert

y vests i n that chi ld immediatel y upon death of t he decedent. No fur

ther adjudi cation i s necessary to establi sh the chil d's right to inherit.3 The com mo n law conc ept o f seis in is st ill a bas ic prin ciple o f rea l prop erty law in Ten nes see . Upo n the term inatio n of a free hold e state , "ther e m ust b e som e asc ertain ed pe rson in existenc e capa ble of tak ing the se isin." Corne lius J. Moyn ihan, Introduct ion to t he Law of Real Prope rty 113 (1962).

-7-

But, accordi ng to the statute, wher e there has been no adjudicat ion of paternity prior to the father's death, paternit y can be established only by cl ear and convincing proof, whi ch, of course, requir es a judicia l determ ination subs eque nt to the death of the fa ther. T he on ly designati on in the statute of t he time wit hin which t hat determinat ion can be made is "the reafter," or, in other words , after the father's death. H owever, "there after" ca nnot b e unlim ited or u ncerta in, bec ause , as pre viously discussed, t he right of a child born out of wedl ock to inher it cannot be asserte d to disturb "rights of inhe ritance" tha t have "finally ve sted." 3 Con sequ ently, it ap pears that the limitatio n imp osed upon the righ t of a ch ild born ou t of wedloc k to inherit from the child's n atural fathe r, where p aternity has not been establ ished pri or to the f ather's deat h, is t hat paterni ty must be prove n by cle ar and convin cing p roof pr ior to the vesting in intere st in person s other tha n the claim ant-child.

In reaching its deci sion in Allen v. Harvey , the Court relied upo n Trimble v. Gor

don , 430 U.S. 762, 97 S. Ct. 1459 ( 1977), in whi ch the United State s Sup reme Cour t held th at an Illin ois sta tute tha t perm itted on ly legiti mate children to inherit from a fat her who died i ntestate v iolated the equal protect ion provi sions of t he United States Constitut ion. In that case, the Su prem e Cou rt recog nized that the state h as a le gitima te intere st in establi shing an orderly method of dis positi on of inte state proper ty, t hat the more serious probl ems incident to proving t he paternit y of persons born out of wedlock j ustify

a more demanding standard of proof, and t hat the dependabili ty of t itles to propert y passing by i ntestate s uccession must be
ensure d. Id. at 771, 97 S. Ct . at 1465.

A reasonable accommodation of these state interest

s and the rights of pe rsons b orn out o f wedlock to inherit from their natura l fathers is to4 Where, as in Allen v.Harvey , the ow ner of the pro perty at is sue w as no t the cla iman t's father, the adjudi cation of paternit y may occur lo ng after t he death of t he claimant' s father and the closing of

his estat

e.
5 See Estate of Jenki ns , 912 S.W .2d 134, 1 36 (Te nn. 1995 ).

6 The limitation stated also eli minates reli ance upon the questionable use of the disti nction betw een "pros pec tive" a nd "re trosp ective " app licatio n of th e sta tute to dete rm ine its applic ability, which was discussed i n Allen v.Harveyand Mar sha ll v. Ma rsha ll

.

-8- require t hat, in t he absence of a stat ute addressi ng the issue, a claimant must a ssert the rig ht to inherit w ithin the time allowed c reditors to a ssert a claim again st the e state o f the pe rson w ho wa s the o wner o f the pro perty in which an interest is claimed. 4 Admittedly, this is a som ewhat arbitrary determ ination . How ever, in the ab senc e of a s tatute, th is dete rmina tion is necessary in order to r esolve competi ng rights. In any event , this limitat ion can be determined by famili ar and well- defined rul es, it meets constit utional standards of notice to cl aimants, 5 it protects the ri ghts of cre ditors and subsequent owners of the propert

y, it poses no threat

to "ri ghts of inheritance" beyond thos e which may now be posed by cr editors and taxing authorities , and it retain s the pre sent de gree of d epend ability in the titles to intestate property. 6

In summary, a chi ld born out of wedlock, whose paternit y was not adjud icated prio r to the dea th of the fath er, can e stablish the right to inherit by intestate succession by asserti ng that ri ght against the estate of the deceased owner of the propert

y in which a n interest is clai med within t he time all owed for credi tors to f ile cl aims against t he estate and by establi shing paternity b y clear an d convin cing proo f.

In this case, Cecil Asberry has shown by clear and conv incing proof that he is the s on of S. D. (Sa m) Asbe rry; however, he did not assert the right to inherit against

the estate of S. D. (Sam) Asber ry, theowner of the propert

y in which a n interest is clai med, within the time requi red. The estate was cl osed in 1968; Ceci l Asberry' s applicat ion for a determination of patern ity was n ot ma de un til this suit w as filed in 199 3. How ever, th is-9-

holding d oes no t resolve the rights of the parties in this case.

ESTOPPEL

Another issue i s presented by t he pleadings and pr oof. That issue is whe ther V estel S mithe rs can rely upo n Cec il Asbe rry's de lay in seeking an adjudi cation of paternit y. CecilAsberry asser ts that Vestel Smithers is e stopped from denyi ng his ownershi p of an interest in t he property. He bases the clai m of estoppel upon t he recitat ions made by Orban Asberry i n the inst ruments of convey ance executed by Orba n Asberry, Blanche Bilbrey, and Cecil Asberry, in whi ch Vestel Smithers' predeces sor in title declared that he , Blanche B ilbrey, and Cecil As berry were the children a nd heirs a t law of the d ecede nt owne r.

Estoppel is

an affirmative defense which must be rai sed in the pleadings and pr

oven by the par

ty assert ing it. Tenn. R. Civ. P. § 8.03; Edwards v. Centr

al Motor Co. , 38 Tenn. App. 577, 277 S.W.2d 4l3, 416 (Tenn . Ct. App . 1954), a ff'd, 277 S.W .2d 417 (Tenn . 1955); Borches & Co. v. Arbuckle Bros. , 111 Tenn. 498, 78 S. W. 266 (1903). Estoppelby deed is an affirmative d efense based on repre sentation s mad e by a pa rty in a deed

. Essentially, repres entations made by a party to a deed cannot be deni ed later by that

party or his privies.
"Estoppel by

deed is a bar whi ch precludes one party to a deed and his privies fr om asserting as against t he other part y and his privies any r ight or titl e in derogati on of the deed, or from denyi ng the truth of any materia l facts asse rted in it."

Denn y v. Wilso n Cou nty , 198 Tenn. 677, 281 S. W.2d 671, 674 (1955) (quoting 28 Am. Jur . 2d Estoppel & Waiver § 4 (196 6)); see also : Blevins v. Johns on Co unty , 746 S.W.2d 678, 684 (Tenn. 19 88). "Where one recog nizes anoth er's title o r is instru men tal in an other's acqu iring title h e is-10-

estopp ed to afterw ards de ny that title." Spicer v. Kimes , 156 S.W.2d 334, 337 (Ten n. Ct. App. 194 1). "The privies of a gra ntor or grantee a re estopp ed to the s ame e xtent as the original pa rties to the d eed." Id

. Estoppel by deed appl ies where both parties wer e grantors or

grantees, and also where one par

ty was a grantor and the other was a grantee. In either case, an individual's p roperty righ ts are be ing recog nized by the other party or parties signi ng the deed. That recognition of rights cannot be taken back at a later

time.

Blanche Bilbr

ey and Orban Asberry joined CecilAsberry in the execution of two warranty deeds and a lease. It was asserted i n those instruments that the gr antors were t he heirs of S. D. (Sam) Asberry . The proof sh ows tha t they divided the proc eeds fro m the c onveya nces e qually. Orban Asberry would be estopped from denying that Cecil Asberry owns a one-thir d undivided i nterest i n the real pr operty. Vestel Smither s, as Orban Asberry's successor in i nterest, is li kewise estopped.

CONCLUSI ON
The ruling of

the Court of

Appeals, that

Cecil Asberr

y is entitled to a one-third und ivided interest in the real pro perty owned by Sam A sberry, is affi rmed. The case is remanded to the tri al court f or furt her proceedings consistent

with thi s opinion.

Costs are taxed to Vestel Smithers, for which execut ion may issue.

______________________________ Reid, J.

Concur: Birch, C.J ., Drowota, Anderson,-11-

and White, JJ.