THOMPSON v. BROWN

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Docket Number

41498.

Attorney(S)

Barry V. Smith, for appellant. Jerry L. Minge, W. Gene Richardson, for appellees.

Judges

SMITH, Justice.

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Smart Summary

Factual and Procedural Background

J. C. Morris died intestate leaving no spouse or children and no real property. His known heirs included two sisters, two brothers, and the two children of a deceased sister. Reuben Howard Thompson (appellant) asserted that he was an heir as the son of Elmer "Sam" Morris, a deceased brother of J. C. Morris. Elizabeth Brown, administratrix of the estate and appellee, filed a petition in the Floyd County Probate Court to determine the heirs. The probate court held that appellant was not an heir. Appellant filed exceptions and a motion to vacate the probate order; both were overruled or denied. He then petitioned for certiorari to the Floyd County Superior Court, which denied relief. The Supreme Court of Georgia reviewed the matter and reversed the trial court's denial of certiorari.

Legal Issues Presented

Whether appellant, contending he is the son of Elmer (Sam) Morris, is an heir entitled to inherit through his father's family.
Whether the trial court erred in concluding that appellant's right to inherit depended upon a valid (non-void) marriage between his parents.
Whether appellant's constitutional challenge to the court's reliance on Poulos v. McMahan is dispositive (the opinion addresses the constitutional challenge as a separate matter).

Arguments of the Parties

Appellant's Arguments

Appellant contended he was an heir as the son of Elmer "Sam" Morris.
Evidence presented in support included testimony that Sam acknowledged appellant as his son, community recognition of appellant as Sam's son, church and school records showing appellant used the name Morris, and family testimony (a Bible listing appellant as Sam's son).
Appellant challenged the trial court's reliance on the necessity of a valid parental marriage to determine his right to inherit.

Appellee's Arguments

The probate and trial courts concluded appellant was illegitimate and could not inherit.
Appellees relied on evidence that Elmer (Sam) was married to Lottie and that marriage continued until Sam's death, arguing this prior marriage prevented a valid marriage to appellant's mother.
The courts relied on Poulos v. McMahan, 250 Ga. 354 (297 S.E.2d 451) (1982), to hold that appellant could not inherit through his father's family because there had been no adjudication of paternity during Sam's lifetime.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Poulos v. McMahan, 250 Ga. 354 (297 S.E.2d 451) (1982)	Used by the probate and superior courts to support the proposition that an individual is incapable of inheriting through his father's family where there was no adjudication of paternity during the father's lifetime.	The superior court agreed with the probate court's reliance on Poulos v. McMahan to conclude appellant was incapable of inheriting through his father's family absent a paternity adjudication during Sam's lifetime.
Campbell v. Allen, 208 Ga. 274, 279 (66 S.E.2d 226) (1951)	Described the abandonment of the common-law rule rendering children of void marriages illegitimate and recognized the civil-law rule that children of certain void marriages born before annulment are legitimate.	The court cited Campbell v. Allen to explain that Georgia's law (now reflected in OCGA § 19-3-5(a)) treats the issue of a child born of certain void marriages as legitimate unless the marriage was annulled before the child's birth.

Court's Reasoning and Analysis

The superior court had found beyond a reasonable doubt that Sam was appellant's father but concluded there was no valid marriage between appellant's parents for three reasons: (1) Elmer (Sam) was married to Lottie and that marriage continued until his death; (2) the relationship between Anita (appellant's mother) and Sam was never legitimated by a ceremonial or common-law marriage because the marriage to Lottie was not dissolved; and (3) testimony indicated Elmer continued to make his home with Lottie. The superior court agreed with the probate court and relied on Poulos v. McMahan to hold appellant incapable of inheriting through his father's family absent an adjudication of paternity during Sam's lifetime.

The Supreme Court of Georgia analyzed the trial court's stated basis for denying certiorari and reversed. The Court observed that the trial court relied solely on the undissolved marriage to Lottie as the reason for finding no marriage between appellant's parents. The Court acknowledged that Sam's existing marriage to Lottie prevented him from contracting a valid marriage with Anita (citing OCGA §§ 19-3-2(3), 19-3-1(1)), but emphasized that this did not preclude an apparent common-law marriage between Anita and Sam—void though such a marriage might be—under OCGA § 19-3-5(a).

The Court explained that Georgia had abandoned the common-law rule that children of void marriages were illegitimate, adopting instead the civil-law rule that the issue of certain void marriages born before annulment are to be considered legitimate, as articulated in Campbell v. Allen and reflected now in OCGA § 19-3-5(a). Because appellant was born of a void marriage and there was no evidence the marriage was annulled before his birth, the Court held the trial court erred in conditioning appellant's right to inherit on a valid parental marriage.

Finally, the Court noted that its resolution of the marriage/legitimacy issue rendered appellant's constitutional challenge to Poulos v. McMahan moot.

Holding and Implications

Judgment reversed.

Direct effect: The Supreme Court of Georgia reversed the trial court's denial of certiorari and rejected the trial court's conclusion that appellant's right to inherit depended upon a valid (non-void) marriage between his parents. The court concluded appellant was born of a void marriage and that there was no evidence the marriage was annulled before his birth; accordingly, the prior finding that appellant was illegitimate and could not inherit was erroneous.

No broader new precedent was announced beyond the Court's application of existing Georgia authority and statutes (including Campbell v. Allen and OCGA § 19-3-5(a)); the opinion noted that the constitutional challenge to Poulos v. McMahan was rendered moot by its ruling on the marriage/legitimacy issue.

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THOMPSON v. BROWN et al.

SMITH, Justice.

J. C. Morris died intestate leaving no spouse or children surviving. He left no real property. His known heirs are: two sisters, two brothers, and the two children of a deceased sister. Appellant, Reuben Howard Thompson, contends that as the son of Elmer Sam Morris, the deceased brother of J. C. Morris, he is an heir. The probate and trial courts found that appellant was an illegitimate child and could not inherit. We do not agree and reverse the trial court's denial of certiorari.

Mrs. Elizabeth Brown, appellee and administratrix of the estate, filed a petition in the Floyd County Probate Court to determine the heirs. The probate court held that appellant was not an heir. Appellant filed exceptions to the order and filed a motion to have it vacated. The exceptions were overruled and the motion denied. Appellant filed a petition for certiorari to the Floyd County Superior Court, and it was denied.

The main witnesses at the hearing were: Sam's two sisters, appellant, and appellant's two neighbors. Both of Sam's sisters lived out of town and visited him only occasionally. They testified that Sam was married to Lottie Morris. Neither was present at the time of the marriage and there was no evidence of a ceremonial wedding. Lottie and Sam had no living children. Both sisters were introduced to appellant as Sam's son. One of the sisters produced a Bible in which appellant was listed as Sam's son. Neither testified that they knew Sarah Anita Thompson, appellant's mother, and both testified that at the time of Sam's death he was married to Lottie.

The neighbors and appellant testified that at the time of appellant's birth in 1949, Anita, Sam, and Anita's mother lived as a family. Anita and Sam held themselves out as husband and wife. Anita talked about wanting a church marriage, but she referred to Sam as her husband. Sam referred to Anita as his wife. Sam acknowledged appellant as his son to the community, and family members. Church and school records showed that appellant used the name Morris. Sam continued to live with Anita and appellant until sometime during the mid-to-late `50s when he began leaving and returning only occasionally.

It is unclear what happened between Anita and Sam. Appellant questioned his mother about his father, but never found out why he finally left. Both Anita and Elmer died in 1962 when appellant was 12 years old. Anita's death certificate, filled out with information provided by her mother, lists Anita's marital status at the time of death as "divorced."

The superior court disagreed with the probate court that Sam might be appellant's father and held that beyond a reasonable doubt he was appellant's father. The court found that there was no marriage between appellant's parents because: 1) Elmer was married to Lottie and that his marriage to her continued until the time of his death in 1962; 2) The relationship between Anita and Sam was never legitimated by a ceremonial or common-law marriage because the marriage to Lottie was not dissolved; and 3) There was testimony that Elmer continued to make his home with Lottie. The court agreed with the probate court's reasoning and reliance on Poulos v. McMahan, 250 Ga. 354 ( 297 S.E.2d 451) (1982), that appellant was incapable of inheriting through his father's family since there had been no adjudication of paternity during Sam's lifetime.

1. We begin with appellant's second enumeration of error in which he contends that the trial court erred in denying certiorari because it found that appellant's right to inherit from his father or his father's family depended upon a valid marriage between his parents. We agree.

The court order clearly states only one reason for failing to find a marriage between appellant's parents, and that was Sam's previously undissolved marriage to Lottie. The marriage to Lottie prevented Sam from being able to contract a valid marriage with Anita. See OCGA §§ 19-3-2 (3), 19-3-1 (1). But it did not prevent an apparent common-law marriage, void though it may have been, between Anita and Sam. See OCGA § 19-3-5 (a). The void marriage in this case did not result in appellant being an illegitimate child. "Georgia abandoned the common-law rule that made the children of a void marriage illegitimate, and adopted the civil-law rule that the [children] of certain void marriages, before they were annulled, were to be considered legitimate. This change as to certain void marriages appeared in the Code of 1863 ( § 1657)." Campbell v. Allen, 208 Ga. 274, 279 ( 66 S.E.2d 226) (1951). It now appears in OCGA § 19-3-5 (a) as follows: "Marriages of persons unable to contract, unwilling to contract or fraudulently induced to contract shall be void. However, the issue of such a marriage born before the marriage is annulled and declared void by a competent court shall be legitimate."

Appellant was born of a void marriage between his parents. There being no evidence that the marriage was annulled before appellant's birth, the court erred in holding that appellant's right to inherit from his father or his father's family depended upon a valid marriage between his parents.

2. Division 1 renders appellant's constitutional challenge to Poulos v. McMahan, supra, moot.

Judgment reversed. All the Justices concur.

DECIDED MARCH 5, 1985 — REHEARING DENIED MARCH 28, 1985.