Estate of Blumreich, In re, s. 75-728

• Decision Date: 30 June 1978
• Docket Number: 76-068,Nos. 75-728,s. 75-728
• Citation: 84 Wis.2d 545,267 N.W.2d 870
• Parties: In re ESTATE of Herman BLUMREICH, Deceased. Herman CALDWELL, by his Guardian ad litem, Frederic C. Eberlein, Appellant, v. Helen KAQUATOSH, Personal Representative of the Estate of Herman Blumreich, Deceased, et al., Respondents. Herman CALDWELL, an infant, by Frederic C. Eberlein, guardian ad litem, Appellant, v. ESTATE of Herman BLUMREICH, Deceased, Helen Kaquatosh, Personal Representative, Respondent.
• Court: Wisconsin Supreme Court

Page 870

267 N.W.2d 870

84 Wis.2d 545

In re ESTATE of Herman BLUMREICH, Deceased.

Herman CALDWELL, by his Guardian ad litem, Frederic C.

Eberlein, Appellant, v. Helen KAQUATOSH, Personal Representative of the Estate of

Herman Blumreich, Deceased, et al., Respondents.

Herman CALDWELL, an infant, by Frederic C. Eberlein, guardian ad litem, Appellant, v. ESTATE of Herman BLUMREICH, Deceased, Helen Kaquatosh, Personal Representative, Respondent.

Nos. 75-728, 76-068.

Supreme Court of Wisconsin.

Submitted March 7, 1978.

Decided June 30, 1978.

This is a consolidation of two appeals concerning the rights and status of an illegitimate child born after the death of his putative father. The petitioner-appellant, Herman Caldwell (hereinafter petitioner), is an illegitimate minor child and the putative son of Herman Blumreich, who was killed in an automobile accident some eleven weeks before the petitioner was born.

Eberlein & Gansen, Shawano, submitted brief for appellant.

Jack J. Schumacher, Shawano, submitted brief for respondent.

John C. Black, guardian ad litem, Shawano, submitted brief for Rachel Powless and Josephine Powless.

Dennis J. Verhaagh and Denissen, Kranzush, Mahoney & Ewald, S. C., Green Bay, submitted brief amicus curiae.

Wisconsin Judicare Inc., Wausau, submitted brief amicus curiae.

HANSEN, Justice.

The petitioner, by his guardian ad litem, petitioned the Shawano-Menominee county court, probate branch, EDWARD P. HERALD, County Judge of Oconto county, Presiding, for a support allowance from the estate of the decedent, Herman Blumreich, and for a determination that he is the sole surviving heir of the decedent. The petition was denied.

Thereafter, the petitioner commenced an action for declaratory relief in the county court of Shawano-Menominee county, RALPH J. STRANDBERG, County Judge of Langlade county, Presiding, seeking a determination that he is the son of the decedent, Herman Blumreich; that he is entitled to inherit from the decedent's estate in the same manner as a legitimate child; and that he is eligible to commence an action for the wrongful death of the decedent. The petitioner's complaint was dismissed on the ground that the petitioner had not alleged facts sufficient to meet the requirements of proof set forth in sec. 852.05(1), Stats., and that in the absence of such an allegation, a posthumous determination of paternity would not terminate the controversy or confer any rights of heirship.

The petitioner appeals from the order dismissing his complaint in the declaratory judgment action and from the order denying his petition in the estate proceedings, and the appeals have been consolidated for decision by this court.

The pertinent facts, as they appear from offers of proof made in the estate proceeding, are alleged to be as follows:

Delores Caldwell, the mother of the petitioner, kept steady company with the decedent, Herman Blumreich, throughout 1972 and 1973. They spent many nights together and in June, 1973, were living together. At that time, Delores Caldwell became pregnant. The only man with whom she had intercourse during the period of conception was the decedent, Herman Blumreich.

The decedent told acquaintances that he was the father of the unborn child and that he and Delores planned to marry before the child was born. However, he made no written acknowledgment of paternity; he made no admission of paternity in open court; and there was no adjudication of paternity.

The decedent, Herman Blumreich, was killed in an automobile accident on January 9, 1974. The petitioner, Herman Caldwell, was born to Delores Caldwell on March 31, 1974.

Herman Blumreich left an estate with a value of approximately $17,000. He was survived by two sisters, a brother, and two nieces, and by the petitioner, Herman Caldwell, whose rights are the subject of these appeals.

On appeal, the petitioner argues that he should be permitted to establish paternity by means of an action for declaratory judgment, and that he is eligible for a support allowance under secs. 861.31 and 861.35, Stats. In addition, he argues that sec. 852.05(1) denies equal protection and due process of law to an illegitimate child born after the death of his putative father.

Briefs in opposition to the petitioner's arguments have been filed by the personal representative of the decedent's estate, and by the decedent's two minor nieces, by their guardian ad litem. Briefs amici curiae have been filed by Wisconsin Judicare, Inc., and by Denissen, Kranzush, Mahoney & Ewald, S.C., representing the decedent's insurer. These briefs challenge and defend the constitutionality of sec. 852.05(1), Stats., respectively.

The following issues are presented:

1. May an illegitimate child take by intestate succession from the estate of his putative father, and maintain an action for the wrongful death of the putative father, where paternity has not been established as provided in sec. 852.05(1), Stats., during the life of the putative father?

2. May an illegitimate child whose paternity has not been established as provided in sec. 852.05(1), Stats., during the life of his putative father, receive an allowance for support and education from the estate of the putative father?

3. Does sec. 852.05(1), Stats., deny posthumous illegitimate children equal protection or due process of law?

I.

Sec. 852.05 , Stats., ¹ provides that an illegitimate child may take by intestate succession from his father's estate if paternity has been (1) adjudicated under secs. 52.21 to 52.45, (2) admitted in open court by the father, or (3) acknowledged by the father in a signed writing. In Krantz v. Harris, 40 Wis.2d 709, 714, 162 N.W.2d 628 (1968), this court held that an illegitimate child must satisfy these requirements to maintain an action for the wrongful death of his putative father. ²

Herman Blumreich did not acknowledge paternity of the petitioner in open court or in a signed writing, and there was no adjudication of paternity prior to Blumreich's death. It is the petitioner's position, however, that sec. 852.05(1), Stats., should be construed to permit him to establish paternity by means of a posthumous action for a declaratory judgment, and that such a construction is necessary to afford him reasonable opportunity to establish that he is the son of the decedent. It might similarly be argued that secs. 52.21 to 52.45 could be construed to permit the posthumous commencement of a paternity action against the estate of the putative father.

However, these approaches are foreclosed by the plain language of the statutes and by the controlling decision of this court in Krantz v. Harris, supra. In Krantz, a posthumously-born illegitimate child sought to maintain an action for the wrongful death of his putative father. This court held that such an action could be maintained only if the child had been legitimated by marriage or if paternity had been established as provided in sec. 237.06, Stats. 1967, the precursor of sec. 852.05, Stats. 1975. The child in Krantz conceded that he could not satisfy the statutory requirements, and this court therefore held that he could not maintain an action for wrongful death. This holding is controlling with regard to the construction of the statutes in question here.

Any argument that sec. 852.05, Stats., contemplates the commencement of a ch. 52 paternity proceeding after the death of the putative father was rejected by implication in Krantz, supra. In Krantz it was assumed, for purposes of a demurrer, that the child was in fact the child of the decedent. Nevertheless, it was held that the child could not meet the statutory burden of proof for establishing heirship, clearly implying that no posthumous paternity proceeding was available.

This conclusion is consistent with the provisions of ch. 52, Stats. Paternity proceedings must be conducted in the manner prescribed by the legislature, State ex rel. Lyons v. De Valk, 47 Wis.2d 200, 177 N.W.2d 106 (1970). Chapter 52, Stats., in its entirety demonstrates that such a proceeding is to be maintained during the life of the putative father. Among other things, that chapter provides for the apprehension of the alleged father and for his release on bail and permits him to cross-examine the complainant. Secs. 52.24 to 52.27. Further, a paternity proceeding may not be maintained when the district attorney declines to prosecute. State ex rel. Smith v. Chicks, 70 Wis.2d 833, 235 N.W.2d 694, 239 N.W.2d 9 (1975). Clearly, the legislature did not contemplate that such a proceeding would be commenced posthumously by a putative illegitimate child.

This is in harmony with decisions in other states, which:

" . . . are almost unanimous that a filiation or bastardy proceeding may not be instituted after the death of the putative father, so as to charge his estate with the duty to support the illegitimate." Annot., 58 A.L.R.3d 188, 191 (1974). See, e. g.: Carpenter v. Sylvester, 267 So.2d 370 (Fla.App.1972); Toms v. Lohrentz, 37 Ill.App.2d 414, 185 N.E.2d 708 (1962).

It is also significant that sec. 895.01, Stats., concerning survival of actions generally, does not identify paternity actions as surviving the death of the father.

Nor is an action for declaratory relief appropriate. The petitioner relies upon Slawek v. Stroh, 62 Wis.2d 295, 215 N.W.2d 9 (1974). In that case, this court held that the putative father of an illegitimate child was entitled to maintain a declaratory judgment action seeking a determination that he was the child's father. This holding was premised on the absence of any other procedure by which the father could establish his rights and duties.

The petitioner maintains that it is effectively impossible for an after-born illegitimate child to satisfy the requirements of sec. 852.05(1), Stats., and that, as in Slawek, supra, a declaratory judgment action should be permitted. In the present case, however, the petitioner does not seek merely a legal forum...