
    Vance WITT, Successor Administrator of the Estate of Frances Mitchell Mayes, Deceased, et al. v. Mark MITCHELL.
    No. 53558.
    Supreme Court of Mississippi.
    Sept. 7, 1983.
    Mitchell, McNutt, Bush, Lagrone & Sams, F.M. Bush, III, Tupelo, for appellant.
    Ford & Cornelius, Robert T. Cornelius, Will R. Ford, New Albany, for appellee.
   ON PETITION FOR REHEARING

DAN M. LEE, Justice,

for the Court:

This matter is presented to us by the appellee’s petition for rehearing following our decision handed down March 30, 1983. Finding merit in appellee’s petition, we hereby withdraw our previous decision and issue this as the opinion of the Court.

This appeal originated in the Chancery Court of Union County wherein Mark Mitchell, appellee, filed his amended petition to notify of heirship in the estate of Frances Mitchell Mayes, deceased. His mother was Gussie Wright, who lived on the estate of George Mitchell. Appellee alleged in his petition that his father was Mark L. Mitchell, the son of George Mitchell. Mark L. Mitchell was committed to the State Mental Hospital at Jackson in 1918 where he subsequently died in 1962. Mrs. Frances Mitchell Mayes, the sister of Mark L. Mitchell, died intestate on October 17, 1973, without children or lineal descendants. She was survived by one sister, Mrs. Ethel Mitchell Montgomery, her brothers Mark L. and Louie having predeceased her. Louie Mitchell died intestate and his estate was administered by the Chancery Court of Union County in Cause No. 2136. Letters of administration were issued on August 18, 1919. He was never married and had no lineal descendants. Appellee therefore sought one-half of the Mayes estate, which is estimated to be of the value of approximately $1,000,000.

At the conclusion of a rather lengthy hearing, the chancellor found that Gussie Wright and Mark L. Mitchell were never married, either ceremonially or by common law. However, based on the evidence, the chancellor found that appellee was the illegitimate son of Mark L. Mitchell. The chancellor held that Mississippi Code Annotated section 91-1-15 (1972), in effect prior to the amendment of April 1, 1981, which barred an illegitimate child from inheriting from or through his intestate father unless the father married the mother and acknowledged the child, was unconstitutional in light of Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977). The chancellor further held that Trimble should be given retroactive application to the death of Mrs. Frances Mitchell Mayes.

Mark L. Mitchell was born in 1883. Records from the Mississippi State Hospital showed he was admitted as a patient on April 22,1918, and remained there until his death on August 22, 1962. It was believed at that time that Mitchell had never married nor that he had any lineal descendants. Although the records disclosed that Mark L. Mitchell was continuously institutionalized from 1918 until his death, the evidence disclosed, as will be shown, that he was seen in Union County as late as 1926. The court records reflected that Mark L. Mitchell was declared a lunatic and his sisters, Frances and Ethel, were appointed his guardians on June 2, 1924. On August 23, 1974, Ethel died testate and her will is being probated in the Chancery Court of Union County in Cause No. 9417.

On January 21, 1980, appellee filed his petition, which was subsequently amended on April 15, 1980, alleging he was entitled to one-half of the Mayes estate estimated to be of the value of approximately $1,000,000. At that time the estates of both Frances and Ethel remained open. The successor administrator of Frances’ estate, the executor of Ethel’s estate and the remainder beneficiaries of Ethel’s will and their assigns were named as defendants to appel-lee’s petition.

The proof showed appellee was born in Union County on October 26, 1918. His mother was Gussie Wright, a sharecropper’s daughter who lived with her parents and brothers and sister on a farm owned by George Mitchell, Mark L. Mitchell’s father. Throughout his life, as reflected by various records, his relatives and other acquaintances, appellee had been known as Mark Louie Mitchell and Mark George Mitchell. Appellant’s middle names were allegedly derived from Louie Mitchell and George Mitchell, Mark L. Mitchell’s brother and father.

The general reputation in the community was that Mark L. Mitchell was appellee’s father. Gussie Wright also told various people that Mark L. Mitchell was appellee’s father and that she and Mark had been secretly married. There was evidence that upon learning of Gussie’s pregnancy, Gus-sie’s mother visited George Mitchell who thereafter paid Mrs. Wright $15 a month for support of appellee. There was also evidence that appellee visited in the George Mitchell household, calling George Mitchell grandpa, and Ethel and Frances, Aunt Ethel and Aunt Fan. On one of these visits, in approximately 1923 or 1924, George Mitchell gave appellee a picture of Mark L. Mitchell and told him it was his father. This picture was produced at trial.

Mark L. Mitchell was seen sporadically in Union County until approximately 1926, although the records from the state hospital reflected his continuous confinement since 1918. During this time, Mark L. Mitchell frequently visited the Wrights. Also, in the late 1920’s, Gussie had two more children who also went by the Mitchell name. Mark L. Mitchell, however, was never seen again in Union County following an alleged incident in 1926, when he poured motor oil over Frances’ furniture.

Witnesses for the appellant, who were mostly third cousins of Frances, asserted they had never heard of appellee or any children of Mark L. Mitchell during family discussions. Mary Bean Lambert, who lived with Frances for about one year in 1926, asserted she never saw or heard appellee’s name mentioned. She also denied any knowledge of the alleged motor oil incident. Evidently, the only thing that was ever said of Mark L. Mitchell was that he had been committed to the state mental hospital. When it was suggested to Frances that she prepare a will following her husband’s death, she replied a will would not be necessary because Ethel was her only living relative.

DID THE CHANCELLOR ERR IN DECIDING THE CAUSE ON A THEORY NOT IN ISSUE UNDER THE PLEADINGS?

Appellee in his original petition and amended petition alleged that he was the son of Mark L. Mitchell, deceased, and the nephew of Frances, deceased. Appellants entered a general denial thereto. Nowhere in appellee’s petition or amended petition did he allege to be the illegitimate son of Mark L. Mitchell nor did he attack the constitutionality of Mississippi Code Annotated section 91rl-15 (1972). In fact, ap-pellee sought to prove at trial that he was the legitimate son of Mark L. Mitchell by virtue of either the existence of a ceremonial or common law marriage between his mother and Mark L. Mitchell.

In Lucas v. Lucas, 415 So.2d 709 (Miss.1982), this Court stated:

This Court has quoted Griffith, Mississippi Chancery Practice, C.J.S. and Am. Jur.2d at length on this subject in Seymore v. Greater Mississippi Life Insurance Company, 362 So.2d 611 (Miss.1978), in part as follows:

The issues are framed, formed and bounded by the pleadings of the litigants. The Court is limited to the issues raised in the pleadings and the proof contained in the record. Judge Griffith, in his monumental work on Mississippi Chancery Practice, gave these sound reasons why it must be so:
“Courts do not instigate or initiate civil litigation. They act only when called on for aid and only in respect to that which is within the call. The potentiality of a court to consider and determine a given class of cases over which it has jurisdiction is made actual, in a particular case within that class, only when a party entitled to relief with respect thereto has applied to the court by his written pleading and even then his written application must state the facts upon which it is based or else it will still be ineffectual to actuate the court to grant any relief. The power of the court, then, will be exerted only upon and will not move beyond, the scope of the cause as presented by the pleadings, for the pleadings are the means that the law has provided by which the parties may state to the court what it is they ask of the court and the facts upon which they ask it; and proof is received and is considered only as to those matters of fact that are put in issue by the pleadings, and never beyond or outside of them. If the rule were otherwise courts could become the originators instead of the settlers of litigious disputes, and parties would never know definitely what they will be required to meet or how to meet it.” Griffith, Mississippi Chancery Practice (Second Edition 1950), § 564, pp. 586-87. (Emphasis added).
In 89 C.J.S. Trial, § 633 b, at page 464 (1955), we find this language:
“The findings when compared with the pleadings must be within the issues and be responsive thereto, and must cover the material issues raised by the pleadings, and this is required whether or not evidence is introduced on such issues. It is improper to make findings outside the scope of the issues made by the pleadings; and where such findings are made, they are nugatory and cannot support conclusions of law or the judgment; they must be disregarded or treated as immaterial.”
76 Am.Jur.2d, Trial, § 1264, at page 215 (1975) says:
“The findings of fact made by the court should respond to and be within the issues, and a finding outside the issues cannot be considered in determining whether the judgment is supported by the findings.” (emphasis ours). (362 So.2d at 614-615)

415 So.2d at 712.

At the conclusion of the evidence presented by both parties, arguments were presented to the chancellor. It was at this june-ture that the constitutionality of section 91-1-15 was first mentioned.

Upon these facts, this case falls squarely within the confines of Estate of Miller v. Miller, 409 So.2d 715 (Miss.1983). There Justice Roy Noble Lee, writing for the Court, so aptly stated:

In his pleadings, appellee did not claim that he was entitled to inherit from J.D. Miller, deceased, as his illegitimate son, nor did he attack the constitutionality of MCA § 91-1-15 (1972), providing for descent among illegitimates, upon equal protection grounds as discriminating against illegitimates. While the appellant did plead the adverse possession statute, Section 15-1-7, Miss.Code Ann. (1972), as a bar to the claim of appellee, she did not plead the six-year general statute of limitations contained in Section 15-1-49, Miss.Code Ann. (1972). The parties, in their pleadings, should have hit the issues of illegitimacy, unconstitutionality and statute of limitations head on like two wild rams during the mating season. Instead, they danced, bobbed and weaved like boxers in the ring, skirting those questions.

409 So.2d at 716-17.

Concluding that the constitutionality of the statute was not properly before the lower court, we held:

As stated, the record reflects that the constitutional question was not raised by the pleadings, or during the trial of the case below, seized upon and declared the statute, Section 91-1-15 (1972), unconstitutional. In State v. The Cabana Terrace, 247 Miss. 26, 153 So.2d 257 (1962), the court, quoting from Pacific States Box & Basket Co. v. White, 296 U.S. 176, 56 S.Ct. 159, 80 L.Ed. 138 (1935), said:
It is well-settled that the constitutionality of a statute will not be considered unless the point is specifically pleaded. 247 Miss, at 37, 153 So.2d at 260.

See also Stewart v. City of Pascagoula, 206 So.2d 325 (Miss.1968); Comfort v. Landrum, 52 So.2d 658 (Miss.1951); Adams v. Board of Supervisors of Union County, 177 Miss. 403, 170 So. 684 (1936).

We are of the opinion that the constitutionality of the statute was not properly before the lower court and that the court erred in declaring the statute unconstitutional of its own volition.

409 So.2d at 718.

Based on the foregoing we hold that the chancellor erred by deciding this case upon a theory not in issue under the pleadings. Because the case must be reversed, we need not reach the other assignments of error. For the above reasons, the cause is reversed and remanded to the chancery court to allow the parties to amend their pleadings, if they desire, and proceed therein.

Upon consideration of the appellee’s petition for rehearing, we hereby withdraw our opinion of March 30, 1983, and issue this decision as the opinion of the Court. Reversed and remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

PATTERSON, C.J., WALKER and BROOM, P.JJ., and ROY NOBLE LEE, BOWLING, HAWKINS, PRATHER and ROBERTSON, JJ., concur.

ROBERTSON, Justice, specially concurring:

I concur in everything that has been said by Justice Dan Lee in his opinion for the Court on Petition for Rehearing. I write separately, however, to set forth my understanding of the effect of our remand and to highlight for the bar the new and diminished office of pleadings under the Mississippi Rules of Civil Procedure, effective with respect to all civil actions commenced after January 1, 1982.

I.

In my view, on remand Mark Mitchell is now in a position to present his more than facially valid claim to inheritance by and through his natural ancestors.

It is clear to me as a matter of fact and law that, by virtue of Senate Bill No. 2651, 1983 Miss.Laws ch. 339, the Legislature has created a new, separate and distinct remedy for the benefit of all illegitimates without any classifications. The effect of our reversal is that Mitchell is now free, on reformed pleadings, to present and litigate his claims under Senate Bill No. 2651.

II.

The original petition in this case was filed on January 1, 1980. It was subsequently amended on April 15, 1980.

The opinion of the Court relies heavily upon Estate of Miller v. Miller, 409 So.2d 715 (Miss.1983); and Lucas v. Lucas, 415 So.2d 709 (Miss.1982). Both of these cases are concerned with the office of pleadings and their role in the phases of a lawsuit. Both are perfectly good law when applied to cases filed prior to January 1,1982. And because this action was commenced prior to January 1, 1982, our former rules apply, even on the proceedings on remand.

The pleadings we hold inadequate under Lucas and Miller would, in my view, be wholly adequate under the Mississippi Rules of Civil Procedure, and particularly under Rules 8(a) and (e). On this record, if our new rules applied, we would further hold that the issues in question had been tried by express or implied consent and, under Rule 15(b), Miss.R.Civ.P., treat those issues in all respects as if they had been raised in the pleadings.

Whether Rule 8 goes all the way and adopts the theory of “notice pleadings” is an issue I do not address. See Official Comment to Rule 8, Miss.R.Civ.P. But, the rules do significantly' change — and diminish — the office of pleadings in a lawsuit. Most fundamentally, the scheme of our new rules has postponed the stage at which the details of a party’s case must be disclosed. What once (under Miller and Lucas) had to be disclosed in pleadings now need not be disclosed until discovery or pre-trial conference. The most important thing to remember about pleadings under the Mississippi Rules of Civil Procedure is that they simply aren’t very important any more.

All that is necessary at the pleading stage is that the plaintiff provide a short and plain statement of his claim. Here, Mark Mitchell has done this. He has alleged that his father was Mark L. Mitchell, the son of George Mitchell. He has alleged that he is entitled to inherit by and through his natural father and grandfather. Under our new rules, he was not required to anticipate that the Chancery Court would find that Gussie Wright and Mark L. Mitchell were never married. His allegation is sufficient to assert a claim of inheritance by and through Mark L. Mitchell, whatever the latter’s marital state may have been determined to be.

Beyond that, under our new rules Mitchell’s pleadings would not be defective because he did not expressly attack the constitutionality of Miss.Code Ann. § 91-1-15 (1972). Again, his pleadings were clear. He stated a claim to inheritance and under our new rules would have been entitled to present under that statement of a claim any legal theory his counsel might think appropriate.

So much of today’s decision as decides the pleadings issues has no effect as precedent in any action commenced after January 1, 1982. 
      
      . It is noted that the legislature further amended Mississippi Code Annotated section 91-1-15 on March 14, 1983, five days after this case was argued before this Court.
     