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12/16/94 DENNIS RAY TIERCE v. REBA GILLIAM

December 16, 1994

DENNIS RAY TIERCE
v.
REBA GILLIAM, AS EXECUTRIX OF THE ESTATE OF JOHN R. TIERCE, DECEASED



Appeal from Tuscaloosa Circuit Court. (CV-91-99.80). Robert B. Harwood, TRIAL JUDGE.

Released for Publication March 25, 1995.

Houston, Maddox, Almon, Kennedy, Ingram, and Cook, JJ., concur.

The opinion of the court was delivered by: Houston

HOUSTON, JUSTICE.

Irene Elizabeth Batchelder and William Copeland Tierce were married in November 1942. In February 1944, William left the United States for military service in Italy. William returned to the United States in December 1945 and learned that Irene was approximately six months pregnant. On February 2, 1946, William sued for a divorce on the ground of adultery. Shortly thereafter, Irene and William were divorced.

At the time of the divorce, Irene was pregnant with the defendant, Dennis Ray Tierce. The issue of Dennis Ray's paternity was not adjudicated during the divorce proceedings. On April 4, 1946, Dennis Ray was born; his birth certificate listed William as the father.

William remarried; he and his second wife, Grace Clements Tierce, had five children -- Brenda T. Scrivner, Shelia T. Ellis, Howard W. Tierce, Cynthia Tierce, and Edna Tierce. William died in December 1972. Approximately 17 years later, in December 1989, William's father, John R. Tierce ("the testator"), died. The executors of the testator's estate, Reba Gilliam and John D. Tierce, filed a routine accounting of the estate and submitted a list of 10 heirs, which named Dennis Ray as the son of William and as a possible heir to the estate. Forty-five years after Dennis Ray's birth and over 20 years after William's death, Shelia T. Ellis sued for a declaratory judgment, asking the court to determine that Dennis Ray was not the son of William and, therefore, that he was not entitled to a share of the estate. The trial court ruled that Dennis Ray was not the biological son of William and, therefore, that he was not an heir to the estate. Dennis Ray appealed; we reversed the judgment and remanded the case, holding that Shelia's action was barred by the 20-year rule of repose. See Tierce v. Ellis, 624 So. 2d 553 (Ala. 1993).

Thereafter, the executors of the testator's estate filed a "motion for declaratory judgment," seeking a determination as to whether our holding in Tierce v. Ellis required that Dennis Ray be designated as a distributee under the testator's will. The trial court ruled that Dennis Ray was not entitled to a share of the estate, finding that the testator had never recognized Dennis Ray as his grandson and that he had never evidenced an intention of including Dennis Ray as a distributee under his will. It is from that judgment that Dennis Ray now appeals. We affirm.

The testator's will provided in pertinent part as follows:

"(c) Upon the death of my wife, I give, devise and bequeath Share # 2 (and also Share # 1, if my wife has failed to exercise the power of appointment) unto the Trustees under that certain Trust Agreement dated the 26th day of February, 1975, in force and effect between me, as Grantor, and Lura G. Tierce and Reba T. Gilliam, as original Trustees thereunder. It is my intention that said residue of my estate shall merge with and become a part of the trust or trusts created by me during my lifetime and that the shares created thereof for the benefit of my children shall participate equally in the assets transferred hereunder by my will.

"(d) In the event that upon the death of my wife the trusts established under that certain Trust Agreement referred to in subparagraph [(c)] above of this Item of my Will shall not be in existence, then and in that event said residue of my estate shall be apportioned into so many equal shares as the number of my children then living or having died theretofore leaving lineal descendants who are then surviving. Each share so apportioned shall be delivered over to the child for whom it is set aside, free from trust, the lineal descendants of any deceased child shall take in equal shares, per stirpes, the share to which the parent would have been entitled if living [sic]."

(Emphasis added.)

The trust agreement referred to in the will, and executed on the same day as the will, contained the following relevant provisions:

"2. Division of Corpus. The trust corpus shall be divided by the Trustees into equal shares, so as to provide one share for the primary benefit of each of Grantor's living children, namely Reba T. Gilliam, Eunice T. Lunsford, John D. Tierce, and Evelyn Oswalt, and one share for the descendants of Grantor's deceased son, William C. Tierce, namely: Brenda T. Scrivner, Shelia T. Ellis, Howard W. Tierce, Cynthia Tierce, and Edna Tierce. The share for the children of William C. Tierce, deceased, shall be divided so as to provide an equal share for each of said children of William C. Tierce, deceased. Each share shall thereafter constitute and be administered by the Trustees as a separate ...


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