Karas' Estate, In re, s. 46986

• Citation: 329 N.E.2d 234,61 Ill.2d 40
• Decision Date: 02 June 1975
• Docket Number: Nos. 46986,47092,s. 46986
• Parties: In re ESTATE of Louis KARAS. Mary SODERMARK, Appellant, v. Evangelia KARAS, Appellee. In re ESTATE of Robert WOODS. Margaret Marie COLLINS, Appellant, v. Addie WHEELER, Adm'r, Appellee.
• Court: Supreme Court of Illinois

Page 234

329 N.E.2d 234

61 Ill.2d 40

In re ESTATE of Louis KARAS.

Mary SODERMARK, Appellant, v. Evangelia KARAS, Appellee.

In re ESTATE of Robert WOODS.

Margaret Marie COLLINS, Appellant, v. Addie WHEELER, Adm'r, Appellee.

Nos. 46986, 47092.

Supreme Court of Illinois.

June 2, 1975.

James R. Phelps and Wayne R. Andersen of Burditt & Calkins, Chicago, for appellant Mary Sodermark.

Mary Reardon Hooton, Chicago, for appellant Margaret Marie Collins.

Gerald W. Shea, Berwyn (Robert J. Lifton of Neistein, Richman, Hauslinger & Young, Ltd., Chicago, of counsel), for appellee Evangelia Karas.

Schwartzberg, Barnett & Schwartzberg, Goodman, Krasner & Kipnis and Zaidenberg, Hoffman & Schoenfeld, Chicago (Benjamin H. Cohen and Hugh J. Schwartzberg, Chicago, of counsel), for appellee Addie Wheeler.

Devereux Bowly, charles Linn, James Weill and Jane Stevens of Legal Assistance Foundation, Chicago (John Henry Schlegel, Buffalo, N.Y., and Joseph Bomba, (Law Student), of counsel), for amicus curiae Deta Mona Trimble and Jessie Trimble.

KLUCZYNSKI, Justice:

These consolidated appeals present the common issue of whether an acknowledged illegitimate child may inherit from her father who died intestate never having married the child's mother. A subsidiary issue involves the right of an illegitimate to be appointed the administrator of the estate under these circumstances.

The relevant sections of the Probate Act read as follows:

'Sec. 12. Illegitimates.

An illegitimate child is heir of his mother and of any maternal ancestor, and of any person from whom his mother might have inherited, if living; and the lawful issue of an illegitimate person shall represent such person and take, by descent, any estate which the parent would have taken, if living. A child who was illegitimate whose parents intermarry and who is acknowledged by the father as the father's child is legitimate.' Ill.Rev.Stat.1973, ch. 3, par. 12.

'Sec. 96. Person entitled to preference in obtaining letters.) The following persons are entitled to preference in the following order in obtaining the issuance of letters of administration * * *:

(2) The children or any person nominated by them.' Ill.Rev.Stat.1973, ch. 3, par. 96.

In cause No. 46986 Louis Karas died intestate. The circuit court of Cook County entered an order declaring Evangelia Karas, his widow, to be his only heir-at-law. Thereafter Mary Sodermark, petitioner, sought to vacate the order of heirship claiming that she was the child of Louis Karas and Estelle Ross, who never married. The Sodermark Petition alleged that Estelle Ross had been institutionalized for psychiatric reasons and apparently upon her release had disappeared. The petition further averred that Mary Sodermark had been acknowledged as the child of Louis Karas and that he had contributed to her support while she lived with an aunt. The petition asserted that Louis Karas and his wife, Evangelia, lived for a time with Mary Sodermark, her husband and family and that Louis Karas had contributed a downpayment to the purchase of the Sodermark's house. The circuit court granted Evangelia's motion to strike and dismiss the Sodermark petition. The appellate court affirmed (In re Estate of Karas, 21 Ill.App.3d 564, 315 N.E.2d 603), and we granted leave to appeal.

In cause No. 47092 Robert Woods died intestate at the age of 81. He left no surviving spouse and no legitimate children or descendants thereof. The circuit court of Cook County determined that there existed certain collateral heirs-at-law of the deceased. Margaret Marie Collins, petitioner, then attempted to obtain letters of administration and a declaration of heirship on her behalf. She asserted in her petition that she was the acknowledged illegitimate daughter of the deceased and a lawful heir to his $37,000 estate. The circuit court sustained the motion of certain collateral heirs-at-law to strike and dismiss the Collins' petition, and we granted direct appeal (50 Ill.2d R. 302(b), Ill.Rev.Stat.1973, ch. 110A, § 302(b)).

We have permitted the filing of an Amicus brief in these consolidated cases. The Amicus has pending in this court a direct appeal involving similar issues. (In re Estate of Gordon, No. 47339.) The illegitimate in Gordon is a minor. Amicus asserts that prior to the death of the unmarried father there had been a judicial order adjudicating paternity and ordering that he support this child.

As accepted by the motions to strike and dismiss the petitions, for the purpose of these appeals Mary Sodermark and Margaret Marie Collins are the acknowledged illegitimate children of the respective decedents, who never married the natural mothers. (Gertz v. Campbell (1973), 55 Ill.2d 84, 87, 302 N.E.2d 40). Thus they have not been legitimatized in accord with section 12 of the probate Act, and under prior case law (Krupp v. Sackwitz (1961), 30 Ill.App.2d 450, 174 N.E.2d 877, appeal denied, 21 Ill.2d 621) are not considered heirs of their fathers, who died intestate.

At common law an illegitimate could not inherit. (Blacklaws v. Milne (1876), 82 Ill. 505, 506.) By statute the result of this rule was ameliorated. (Ill.Ann.Stat., ch. 3, sec. 12, Historical Note, at 64 (Smith-Hurd 1961); see also 2 Horner, Probate Practice and Estates, Secs. 1348, 1350--51 (4th ed. 1960).) In Smith v. Garber (1918), 286 Ill. 67, 121 N.E. 173, the court, in discussing the predecessor provisions of section 12 of the Probate Act, stated:

"Sections 2 and 3 of our statute of descent were enacted for the purpose of obviating the undue severity of the common law and of erecting a rule more consonant with justice to an innocent and unfortunate class. Section 2 * * * abrogates the common law rule that an illegitimate is the child of nobody, and could not take property by inheritance, even from its own mother.' (Robinson v. Ruprecht, 191 Ill. 424, 61 N.E. 631.) Under the common law an illegitimate was considered Filius nullius. 1 Blackstone's Com.

Page 459

Under the statutes passed in this state in relation to illegitimate children, 'an illegitimate person is recognized as the child of his mother, as regards the descent of property.' Miller v. Williams, 66 Ill. 91. In Bales v. Elder, 118 Ill. 436, 11 N.E. 421, this court said that it was the purpose of the legislature in enacting the statute as to illegitimate children to remove the common law disability of inheritance and place them more nearly on a level with legitimates. See, also, Jenkins v. Drane, 121 Ill. 217, 12 N.E. 684; Chambers v. Chambers, 249 Ill. 126 (249 Ill. 126, 94 N.E. 108).) In Robinson v. Ruprecht, Supra, this court said (191 Ill. p. 433 (61 N.E. (631) 634)): 'The rule (of the common law) visited the sins of the parents upon the unoffending offspring, and could not long survive the truer sense of justice and broader sense of charity that came with the advancing enlightenment and civilization of the race." 286 Ill. 67, 70--71, 121 N.E. 173, 175.

It is argued in the Sodermark appeal that this court modify the common law rule that an acknowledged illegitimate may not be an heir of the intestate father's estate. She urges that she be allowed to inherit to the extent of a legitimate child. This is not a tenable argument.

For nearly 150 years this State by statute has mitigated the effect of the common law rule prohibiting inheritance by illegitimates. While discussing other Probate Act provisions, this court has held that 'The regulation of the descent of property and of the right to devise property, as well as the method of conveying and the manner of creating estates and the character and quality of estates created, is purely statutory and entirely within the control of the Legislature. (Citations.) Being wholly statutory, the rules of descent may be changed by the Legislature in its discretion, and conditions or burdens may be imposed upon the right of succession.' (Steinhagen v. Trull (1926), 320 Ill. 382, 387, 151 N.E. 250, 252, see also Jahnke v. Selle (1938), 368 Ill. 268, 271, 13 N.E.2d 984.) Moreover, Miller v. Pennington (1905), 218 Ill. 220, 75 N.E. 919, involved litigation contesting certain property of the intestate decedent. He had fathered two illegitimate sons by a woman whom he subsequently married. The question presented concerned whether these sons could be deemed to be legitimatized and could therefore share as heirs-at-law with the other legitimate children of the father. The descent statute, considered by the court (Hurd's Stat.1899, ch. 39, sec. 3) in determining whether these sons had been legitimatized, is presently incorporated within section 12 of the Probate Act. The court there held that the rights of the sons who had been born illegitimate were to be determined under the pertinent provision of the descent statute. The aforegoing authorities support the conclusion that expansion of inheritance rights of an illegitimate child in the estate of the father who dies intestate must be left to legislative modification. Therefore consideration of the applicability of the common law to intestate succession is of no relevance. Campbell v. McLain (1925), 318 Ill. 610, 612--13, 149 N.E. 481.

Petitioners and Amicus urge that the statutory scheme which precludes the inheritance by an acknowledged illegitimate from the estate of the intestate father violates the Federal and State constitutional provisions guaranteeing equal protection and due process of law. In so arguing petitioners and Amicus recognize the possible adverse implications of the United States Supreme Court decision in Labine v. Vincent (1971), 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288.

In Labine v. Vincent the acknowledged illegitimate child had been precluded under Louisiana law from inheriting on an equal basis with legitimate children, if the father died intestate. It was argued that this statutory limitation was contrary to Federally secured rights to equal protection and due process. In a 5-to-4 decision the Supreme Court rejected these...