Jeter v. McGraw, 79 S.W.3d 211 (Tex. App.—Beaumont 2002, pet. denied).
Husband and Wife were married in 1931. In 1935, Husband fathered
Non-Marital Child. Husband died in 1947, still married and without other
children, owning a 25% interest in certain real property as his
community property share. In the early 1980s, Wife conveyed all of her
interest in this property to Grantee. Non-Marital Child now claims that
Husband’s 25% passed to him under intestacy, rather than to Wife. On the
other hand, Grantee asserts that Non-Marital Child must establish
paternity under the statutes as they existed when Husband died. Grantee
thus argues that Non-Marital Child is precluded from inheriting because
the statute permitted a non-marital child to inherit from the father
only if the father subsequently married the non-marital child’s mother.
The trial court ruled in favor of Grantee and Non-Marital Child
appealed.
The appellate court reversed and remanded the case for reconsideration
by the trial court. The court first examined Grantee’s claim that
Non-Marital Child is precluded from asserting paternity by the
then-existing statute. The court indicated that it would be
unconstitutional to apply this statute retroactively. The court cited
both Texas and United States Supreme Court opinions which have held that
statutes such as the 1947 Texas provision are unconstitutional and may
not be given effect.
Grantee next raised the affirmative defense of the running of the
four-year statute of limitations because Non-Marital Child knew about
his true paternity for decades more than four years and did not timely
pursue his claim. The court examined the two leading Texas cases on the
issue and found a key distinguishing point. In York v. Flowers, 872
S.W.2d 13 (Tex. App.—San Antonio 1994, writ denied), the non-marital
child was allowed to pursue her claim despite the passage of more than
four years because the suit was for the recovery of certain real
property and thus outside of the residuary four year period in Tex. Civ.
Prac. & Rem. Code § 16.051. The non-marital children in Cantu v.
Sapenter, 937 S.W.2d 550 (Tex. App.—San Antonio 1996, writ denied),
however, were precluded from asserting their claims after the four year
period elapsed because the action was only to establish heirship and
there was no real property issue before the court. Accordingly,
Non-Marital Child is not bound by the four year statute of limitations
because he is attempting to recover specific real property. The court,
however, notes that Non-Marital Child could be barred by adverse
possession statutes and suggests that this issue be considered by the
trial court.
Moral: Purchasers of real property should be certain to obtain title
insurance to protect against the risk that a non-marital child of one of
the prior owners will successfully assert a claim to the property.