Beatrice A. Nielsen Tyler v. LOUIS ARMSTRONG, AS ADMINISTRATOR OF THE ESTATE OF FELIX FRANCIS On Appeal From the…

PRECEDENTIAL
IN THE UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
NO. 02-3961
BEATRICE A. NIELSEN TYLER
Appellant
v.
LOUIS ARMSTRONG, AS
ADMINISTRATOR OF THE
ESTATE OF FELIX FRANCIS
On Appeal From the District Court of the
Virgin Islands
(D.C. Civil Action No. 00-cv-00128)
District Judge: Hon. Thomas K. Moore
District Judge: Hon. Stanley S. Brotman
Territorial Judge: Hon. Brenda J. Hollar
Submitted Pursuant to Third Circuit LAR
34.1(a)
December 8, 2003
BEFORE: NYGAARD, BECKER and
STAPLETON, Circuit Judges
(Opinion Filed April 14, 2004)
Eszart A. Wynter, Esq.
17 Estate Whim, P.O. Box 1847
Frederiksted, St. Croix
USVI 00841-1847
Attorney for Appellant
Rhonda Hospedales, Esq.
Nichols, Newman, Logan & D’Eramo
1131 King Street - Suite 204
Christiansted, St. Croix
USVI 00820-4971
Attorney for Appellee
OPINION OF THE COURT
STAPLETON, Circuit Judge:
Beatrice Nielsen Tyler (“Tyler”) filed a
“Petition for Legitimization” in the
Territorial Court of the Virgin Islands
seeking to establish that she had been
legitimated pursuant to 16 V.I.C. § 462 by
her then-deceased putative father, Felix
Alexander Francis (“Francis”). The
Territorial Court granted a motion to
dismiss, holding that Tyler could not state
a claim upon which relief may be granted
because, inter alia, § 462 was repealed
prior to the date on which she filed her
petition. The Appellate Division affirmed.
We will reverse and remand.
I. Factual and Procedural Background
A. The Facts As Alleged by Appellant
Tyler was born on September 28, 1947
to Alice M aria Smith Nielsen, who was
legally married to Heinrich Nielsen. Tyler
alleges that her natural father was in fact
Francis. Tyler first became aware that
Francis was her biological father at the age
of seven in 1954. Francis acknowledged
Tyler as his biological daughter to at least
six individuals at different times in his life.

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Some of these acknowledgments occurred
before his marriage to Beryl Francis, while
others were subsequent.1
Tyler alleges that she enjoyed an open
and loving father/daughter relationship
with Francis. She frequently visited
Francis’s house, and often spent time with
Francis and her biological grandmother,
Josephine Francis. Francis provided
financial assistance to support Tyler, and
paid for her primary education. Upon
Tyler’s graduation from high school,
Francis gave her a card containing
$500.00. While Tyler attended college,
Francis maintained contact and continued
to financially support Tyler. Upon her
return to St. Croix in 1977, Francis
assisted Tyler by getting her an apartment
and supporting her financially during her
transition. In 1989, Francis deeded a
house to Tyler out of love and affection for
Tyler and her son.
Francis attended various special events
in the life of Tyler’s son, Marcus Tyler
(his putative grandson). During the final
days of his life, Francis promised to make
changes to his bank account so that
Marcus Tyler would be able to attend
college and so that Tyler would not have to
struggle financially. Francis died on
December 21, 1999.
At funeral services for Francis, his son,
Fitzgerald Francis, informed Tyler that his
father told him that she was his sister.
B. Procedural Background
Tyler filed a petition for legitimation on
or about May 18, 2000 under 16 V.I.C. §
462 in the Territorial Court, seeking a
decree that Tyler is the legal daughter of
Francis.2 Louis Armstrong, a s
1Tyler’s petition indicates that Francis
spoke to some individuals regarding his
paternity “before his marriage to Beryl
Francis” and “other [individuals] he spoke
to subsequent.” App. at 20. The petition
is ambiguous as to whether Francis spoke
to these other individuals after he was
married (which would have therefore
triggered the spousal consent requirement
of 16 V.I.C. § 462, discussed infra) or
after he was no longer married (because he
was a widower, therefore making the
spousal consent requirement inapplicable).
At least one of the affidavits submitted by
Tyler suggests that Francis spoke to this
latter category of people after his wife had
died. See Affidavit of Rev. Kenneth
Gaddy C. Ss. R., App. at 48. As we are
reviewing the Territorial C ourt’s
disposition of a motion to dismiss, we
presume that Tyler alleges that Francis
spoke to these other individuals after he
was no longer married.
2Prior to 1998, Section 462 had
provided:
The father of an illegitimate
c h i l d , b y p u b l i c l y
acknowledging it as his
own, receiving it as such,
with the consent of his wife,
if he is married, into his
fa mily, and otherw ise
treating it as if it were a
legitimate child, thereby

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3
Administrator of the Estate of Felix
Francis, filed a motion to dismiss.
The Territorial Court granted the motion
to dismiss, noting, sua sponte, that § 462
had been repealed in 1998. It further noted
that the legislature had simultaneously
amended the statute authorizing paternity
suits to provide that a father’s public
acknowledgment of a child “provides
evidence of paternity.” See 16 V.I.C. §
295(a) (the “Paternity Statute”).3 The
Territorial Court apparently interpreted
this to mean that, after 1998, the Paternity
Statute was the exclusive means of
accomplishing what Tyler sought to
accomplish. Because Tyler was not among
the classes authorized to bring an action
under the Paternity Statute, the Territorial
Court dismissed her petition. See 16
V.I.C. § 293(a).4
Tyler appealed the Territorial Court’s
decision to the Appellate Division of the
District Court (“Appellate Division”), and
argued that the application of the Paternity
Statute to her (as opposed to § 462)
brought about a wrongful taking and
deprivation of her vested inheritance rights
and violated her Due Process rights. The
Appellate Division affirmed the Territorial
Court on two grounds. First, the Appellate
adopts it as such; and
s u c h c h i l d i s
thereupon deemed
for all purposes
legitimate from the
time of its birth.
316 V.I.C. § 295(a), as amended in
1998, provides:
The deceased father of a child
born out-of-wedlock, by having
acknowledged the child as his
own, or having received the child
into his family and otherwise
having treated it as if it were a
legitimate child, thereby provides
evidence of paternity.
416 V.I.C. § 293(a), in pertinent part,
provides:
Proceedings under this chapter
may be instituted by (1) any
female resident of the Virgin
Islands who has delivered an
out-of-wedlock child or by (2)
any male resident of the Virgin
Islands who is alleging to be the
father of an out-of-wedlock
child, or (3) any legal custodian
of an out-of-wedlock child.
Proceedings herein can be
instituted at any time before a
child’s eighteenth birthday,
including any child for whom a
paternity action was previously
dismissed under a statute of
limitations of less than eighteen
(18) years. . . .
The Territorial Court noted that Tyler is
over the age of 18 and is not the parent of
a minor child, thereby making her not
within the classes authorized to bring suit
under § 293(a).

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4
Division agreed with the Territorial Court
that Tyler could not bring an action under
§ 295 because she was not within the class
of persons entitled to bring such an action
under § 293(a). Second, the Appellate
Division determined that Tyler’s argument
that § 462 should have been applied to her
was “totally without merit” because “[t]he
changes made to Title 16 of the Virgin
Islands Code in 1998 have no bearing on
whatever inheritance rights Tyler may
claim to have against the estate of her
alleged biological father, Felix A. Francis.
Indeed, Tyler’s claim of heirship is
currently pending in the separate probate
proceeding, which is not before us.” App.
Div. Op. at 5.
Tyler appealed the decision of the
Appellate Division to this Court, and again
argues, inter alia, that the failure to apply
§ 462 to her resulted in the denial of her
right to Due Process and an unjust taking
of her vested rights.
II. Jurisdiction and Standard of Review
The Territorial Court had jurisdiction to
entertain the Petition under 4 V.I.C. § 76.
See In re Baby Girl Lake, 33 V.I. 66, *6
(V.I. Terr. Ct. 1995); In re Williams, 16
V.I. 529, 530 n.1 (V.I. Terr. Ct. 1979).
The Appellate Division had jurisdiction to
review a judgment of the Territorial Court
under both local law, 4 V.I.C. § 33, and
the Revised Organic Act, 48 U.S.C. §
1613a(a). See Parrott v. Government of
Virgin Islands, 230 F.3d 615, 618 (3d Cir.
2000). We have jurisdiction to review
final orders of the Appellate Division
under 48 U.S.C. § 1613a(c). See, e.g., BA
Properties Inc. v. Government of U.S.
Virgin Islands, 299 F.3d 207, 210 (3d Cir.
2002); Parrott, 230 F.3d at 618;
Government of Virgin Islands v. United
Indus. Workers, N.A., 169 F.3d 172, 175
(3d Cir. 1999).
In reviewing the Appellate Division’s
orders, this Court “should review the trial
court’s determination using the same
standard of review applied by the first
appellate tribunal.” Semper v. Santos, 845
F.2d 1233, 1235 (3d Cir. 1988);
Government of Virgin Islands v. Albert,
241 F.3d 344, 347 n.3 (3d Cir. 2001)
(same); see also Government of Virgin
Islands v. Marsham, 293 F.3d 114, 117 (3d
Cir. 2002) (“We review the Appellate
Division’s statutory interpretation de
novo.”); BA Properties Inc., 299 F.3d at
212 (same).
In reviewing the grant of a motion to
dismiss for failure to state a claim, an
appellate court’s review of the trial court is
de novo. See Worldcom, Inc. v. Graphnet,
Inc., 343 F.3d 651, 653 (3d Cir. 2003).
“We accept all well pleaded factual
allegations as true and draw all reasonable
inferences from such allegations in favor
of the complainant.” Id. (citing Weston v.
Pennsylvania, 251 F.3d 420, 425 (3d
Cir.2001)). “Dismissal for failure to state
a claim is appropriate only if it ‘appears
beyond doubt that plaintiff can prove no
set of facts in support of his claim which
would entitle him to relief.’ ” Id. (quoting
Conley v. Gibson, 355 U.S. 41, 45-46
(1957)).

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5
III. The § 462 Claim
Prior to 1998, 16 V.I.C. § 462 (entitled
“Legitimation by acknowledgment”)
provided:
The father of an illegitimate child, by
publicly acknowledging it as his own,
receiving it as such, with the consent
of his wife, if he is married, into his
family, and otherwise treating it as if
it were a legitimate child, thereby
adopts it as such; and such child is
thereupon deemed for all purposes
legitimate from the time of its birth.
Id. Section 462 was repealed in 1998. See
1998 V.I. Sess. Laws 6228 § 18, at 318
(repealing Title 16, Chapter 15 of the
Virgin Islands Code).
Tyler’s most serious challenge on
appeal is her claim that Francis had
satisfied all of the requirements for
legitimation under § 462, and Tyler had
accordingly been legitimated thereunder,
prior to the repeal of § 462.5 As a result,
she insists that she must be “deemed for all
purposes legitimate from the time of [her]
birth.” Intestate distribution is one such
purpose.
The basis for the Appellate Division’s
disposition of this claim is not altogether
clear to us. At one point, it seems to
suggest that the 1998 statutory
amendments have “no bearing on whatever
inheritance rights Tyler may claim to
have” and that she may assert those rights
in a pending “sep arate probate
proceeding.” App. Div. Op. at 5. At the
same time, the “Conclusion” of its opinion
states that “Tyler lacks the standing to
pursue her allegations under the law as it
was amended and revised in May, 1998”
and it affirms the Territorial Court’s order
dismissing the Petition without expressly
preserving Tyler’s right to press her § 462
claim elsewhere. Id. The Appellate
Division further commented in a footnote
that an “illegitimate child’s right to share
in the . . . estate is governed by 15 V.I.C. §
84(13).” Id. at 5 n.3. That section
provides:
An illegitimate child shall be
considered to have the same status,
for the purpose of the descent and
distribution of the property of his or
her ancestors, as if he or she were
born in lawful wedlock provided that
in cases where the ancestor in
question is a father, he admitted of
record paternity of such child by
signing the official birth certificate;
or he was adjudged the father of such
child by a court of competent
j u ri s d i c t i o n ; o r b y w r i t t e n
acknowledgment he recognized such
child as his.
5We agree with the Territorial Court
that Tyler is not among those listed in 16
V.I.C. § 293(a) as being authorized to
bring a paternity suit under 16 V.I.C. §
295. As we explain hereafter, however, 16
V.I.C. § 462, prior to 1998, was an
alternative remedy independent of the
availability of paternity proceedings under
Title 16, Chapter 11 of the Virgin Islands
Code.

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15 V.I.C. § 84(13).
We conclude that Tyler is entitled to
have the merits of her § 462 claim
adjudicated by the Territorial Court.
Because we are concerned that the
presently outstanding judgment might
preclude her from doing so, we will
reverse and remand for further proceedings
consistent with this opinion.
A. The Virgin Islands Statutory Scheme
Prior to 1998
Section 462, on its face, is self-
executing. If the putative father acts to
acknowledge his paternity in a certain
manner, the child is deemed to be
legitimate without the necessity of a
judicial proceeding. That this literal
reading was the intended one is confirmed
by the legislative history of § 462 and the
Virgin Islands case law.
The Revision Note for § 462 in the
Virgin Islands Code indicated that § 462
was based upon § 230 of the Civil Code of
California, which has since been repealed.
See 1975 Cal. Repealed Stat. 1244 § 8, at
3196. The Virgin Islands Territorial Court
has recognized this history and has
interpreted § 462 by reference to cases
interpreting the California statute. See In
re Williams, 16 V.I. 529, 532-33 (V.I.
Terr. Ct. 1979) (“Section 462 is based on
and is virtually identical to section 230 of
the Civil Code of California. . . .
Consequently, the court turns to the cases
interpreting the California statute because
in the Virgin Islands the language of a
Virgin Islands statute which has been
taken from the statutes of another
jurisdiction is to be construed to mean
what the highest court of the jurisdiction
from which it was taken had, prior to its
enactment in the Virgin Islands, construed
it to mean.”) (footnote omitted).
California’s Court of Appeal has
explained the purpose behind § 230 as
follows:
Thus, section 230, in providing that
the father of an illegitimate child
adopts his offspring by publicly
acknowledging it as his own, uses
the term “adopts” in the sense of
“legitimates” and the effect of the
father’s act “. . . is to change the
status and capacity of an illegitimate
child to the status and capacity of a
child born in Lawful wedlock.” In re
Navarro, [175 P.2d 896, 898 (Cal.
Dist. Ct. App. 1946)]; Blythe v.
Ayres, [31 P. 915, 916 (Cal. 1892)].
The purpose of the code section is
to permit the father to make
reparation to the child by taking it
into his home without the publicity
which would be incidental to a
judicial proceeding of adoption. As
stated by the code commissioners,
the publicity of a judicial proceeding
(see [Cal.] Civil Code, § 221 et seq.)
would brand the child with the very
stigma from which a repentant father
would desire to save it.
Darwin v. Ganger, 344 P.2d 353, 358
(Cal. Dist. Ct. App. 1959). According to
Darwin, California therefore provided for
two methods of legitimation: “judicial
proceedings” under one section of the

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California Civil Code or “a course of
conduct” under § 230. Id.
The Virgin Islands had a similar
legislative scheme. As recognized in In re
Baby Girl Lake, 33 V.I. 66 (V.I. Terr. Ct.
1995):
In the Virgin Islands, an
illegitimate child can be legitimized
i n f o u r w a y s : b y p u b l i c
acknowledgment of the child by the
father (V.I. Code Ann. tit. 16, § 462
(1964)); by the father signing a
notarized affidavit acknowledging
paternity (V.I. Code Ann. tit. 19, §
832 (1976)); by a court order
establishing paternity upon the
petition of the mother or the father
(V.I. Code Ann. tit. 16, §§ 291-303
(1964 & Supp. 1995)); or by the
marriage of the parents (V.I. Code
Ann. tit. 16, § 461 (1964)).
Id. at *6-*7.
In 1998, the Virgin Islands legislature
repealed 16 V.I.C. §§ 461, 462. See 1998
V.I. Sess. Laws 6228 § 18, at 318. But the
very scheme discussed in Darwin,
whereby an individual could be
legitimated through judicial paternity
proceedings or through a course of
conduct by the putative father (saving both
the parent and child from the publicity of
a judicial proceeding) was present in the
Virgin Islands with respect to 16 V.I.C. §§
291-303 and 16 V.I.C. § 462, respectively,
before the 1998 changes by the Virgin
Islands legislature.
Darwin therefore suggests that it was no
accident that California’s § 230 (or the
Virgin Islands’s § 462) made no mention
of judicial proceedings being necessary to
procure any right under that statute.
Section 462 provided a means by which a
child will be “deemed for all purposes
legitimate from the time of its birth” once
a certain course of conduct had been met
by the putative father.
We think it clear that if § 462 had not
been repealed and Tyler were able to
establish that Francis acknowledged her in
the required manner, she would be deemed
his legitimate child and would participate
as such in the distribution of intestate
assets under 15 V.I.C. § 84.
Contrary to the suggestion of the
Territorial Court, the Paternity Statute
would not have foreclosed Tyler because §
462 and paternity proceedings under Title
16, Chapter 11 of the Virgin Islands Code
were alternative remedies prior to 1998.
Contrary to the suggestion of the
Appellate Division, 15 V.I.C. § 84(13)
would not have foreclosed Tyler because
that subsection applies only to an
“illegitimate child.” Other portions of §
84 prescribe the inheritance rights of
legitimate children, including a child who
must be “deemed for all purposes
legitimate” under § 462. As the California
Supreme Court has explained with respect
to their analogous statute, § 230, and a
California probate statute providing for
distribution to illegitimates, “the two
sections provide alternate methods by
which a person may become the heir of his
father.” In re Garcia’s Estate, 210 P.2d

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841, 842 (Ca. 1949). “A child who is
‘deemed for all purposes legitimate’
cannot be regarded as still illegitimate for
some purposes, and a child who has
become legitimate can no longer be
regarded as an ‘illegitimate child.’” Id.
The independence of § 462 from the
paternity proceedings authorized by § 295
and referenced in § 84(13) is reflected in
the Virgin Islands case law. While § 462
was self-executing and legitimation
thereunder came solely as a result of the
conduct of the father, the Virgin Islands
courts found implicit authority in that
section for judicial proceedings seeking a
declaration that legitimation had indeed
occurred. Such proceedings were regarded
by the Virgin Islands courts, however, to
be a remedy distinct from paternity
proceedings. In In re Estate of Moolenaar,
24 V.I. 234 (V.I. Terr. Ct. 1989), for
example, the petitioner sought to share in
the intestate distribution of her putative
father’s assets. She asked that the court
adjudicate the paternity of her putative
father so that she might share under §
84(13) and, alternatively, that the estate
administrator be ordered to acknowledge
her earlier legitimation under § 462. The
court read § 84(13) and the then-current
paternity statute as depriving it of
jurisdiction to adjudicate the paternity of a
putative father after his death. This
conclusion did not, however, dispose of
the petitioner’s § 462 claim, which the
court disposed of on its merits:
A careful analysis of § 462
indicates that for “legitimation by
acknowledgment,” as this section is
headed, to take place, or for
legitimation from the time of birth of
the child to take place, as stated in
the body of the section, the decedent,
during his lifetime, must have
acknowledged said child as his own
by doing all of three things: (a) he
must have publicly acknowledged it
as his natural child; (b) he must have
received it as his natural child, with
the consent of his wife, if married,
into his family; and (c) he must have
otherwise treated claimant as if
claimant was a legitimate child.
* * *
By the most liberal construction
of these grounds, individually or as a
whole, the Court can find no factual
basis for a finding that decedent
received claimant as his natural
child, with the consent of his wife,
into his family.
Moolenaar, 24 V.I. at 242.
B. The Effect of the Repeal of § 462 in
1998
We now turn to the issue of whether,
assuming Tyler could establish that the
requirements of § 462 were met prior to
1998, the repeal of that statute rendered
her illegitimate again. We conclude that it
did not.
Section 50(a) of Title I of the Virgin
Islands Code provides:
The repeal of any Act, part of any
Act, or provision of this Code does
not release or extinguish any right

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acquired, or penalty, forfeiture, or
liability incurred, under the Act, part,
or provision, and existing at the time
of the repeal, unless the repealing
Act expressly so provides, and the
Act, part, or provision shall be
treated as still remaining in force for
the purpose of sustaining any proper
action or proceeding for the
enforcement of the right, penalty,
forfeiture, or liability.
The Act of the Virgin Islands
Legislature repealing § 462 does not
expressly provide that the rights of
children previously legitimated by their
father pursuant to that section are to be
released or extinguished. It follows, we
conclude, that if Tyler can satisfy the
Territorial Court that the requirements of §
462 were met prior to the repeal of that
statute in 1998, she must be deemed to be
a legitimate child for all purposes
including the intestate distribution
provisions of 15 V.I.C. § 84. We, of
course, express no opinion as to whether
Tyler will be able to make such a showing.
IV. Alternate Grounds for Affirmance
Armstrong asks us to affirm on two
alternate grounds, neither of which is
persuasive. Armstrong argues that Tyler
never qualified for legitimation under §
462 as a matter of law ostensibly because
of that statute’s requirement that the
putative father have received the child
“with the consent of his wife, if he is
married.” Armstrong argues that
Appellant’s petition reveals no allegation
that Francis received Appellant as his
natural child into his family, with the
consent of his wife, during Tyler’s
lifetime. However, Appellant’s petition in
fact alleges that Francis acknowledged his
paternity to some “before his marriage”
and to others “subsequent” thereto. App.
at 20. It is true, as Appellee suggests, that
In re Estate of Moolenaar, 24 VI 234, 243
(V.I. Terr. Ct. 1989), indicated that
separation between a putative father and
his spouse would not waive the “consent
of his wife” requirement of § 462. But
even accepting that principle, Tyler has
alleged that Francis acknowledged his
paternity before he was married and after
his wife had died. At this stage, that is
sufficient.
Armstrong further argues that Virgin
Islands law does not permit Tyler to bring
a legitimation action under § 462 after the
death of her putative father. Armstrong’s
only support for this proposition is In re
Estate of Moolenaar, 24 V.I. 234 (V.I.
Terr. Ct. 1989). As we have indicated,
how ever, Moolenaar confined its
discussion of the posthumous availability
of relief under § 84(13) to that section
based on the statutory text of that section,
and specifically went on to consider the
merits of an illegitimate child’s claim
under § 462 after the death of the child’s
putative father. See id. at 241-43; see also
In re Baby Girl Lake, 33 V.I. 66, *8-*11
(V.I. Terr. Ct. 1995) (considering on the
merits a claim of legitimation under § 462
after the death of the putative father while
recognizing in another part of the opinion
Moolenaar’s requirement that paternity be
adjudicated prior to the putative father’s

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death). Citing Baby Girl Lake and
Moolenaar, the Territorial Court in this
case recognized that the Virgin Islands has
allowed § 462 actions to be brought after
a putative father’s death, and we see no
basis for disturbing that conclusion.6
V. Conclusion
For the foregoing reasons, we will
reverse the judgment of the Appellate
Division and remand with instructions to
return this matter to the Territorial Court.
The Territorial Court will adjudicate
Tyler’s 16 V.I.C. § 462 claim in this
proceeding, in the pending probate
proceeding, or in a proceeding that
consolidates both of those proceedings.
6Possibly seeking to suggest an
additional alternate ground for affirmance,
Armstrong suggests in his brief that Tyler
“had already been adjudged the legal
heir/daughter to Heinrich Nielsen for
purposes of descent and distribution.”
Appellee’s Brief at 33. We decline to
address and express no opinion with
respect to any estoppel argument
suggesting that Tyler is precluded from
bringing a legitimation action because of
any proceedings with respect to Heinrich
Nielsen’s estate. The issue has not been
adequately briefed and will therefore not
be considered as a possible alternate
ground for affirmance.

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