537 N.E.2d 1310 (Ohio Prob. 1988), 386,558, Alexander v. Alexander

Docket Nº:386,558-A
Citation:537 N.E.2d 1310, 42 Ohio Misc.2d 30
Opinion Judge:METCALF, Judge.
Party Name:ALEXANDER, Admr., v. ALEXANDER et al. [*]
Attorney:H.L. Thompson, for Eleanor Summers Kenney et al. Fred E. Sams, Columbus, for Union Cemetery Ass'n, Inc.
Case Date:December 15, 1988
Court:County Court of Ohio

Page 1310

537 N.E.2d 1310 (Ohio Prob. 1988)

42 Ohio Misc.2d 30



ALEXANDER et al. [*]

No. 386,558-A

Probate Court of Franklin County, Ohio.

December 15, 1988

Page 1311

Robert A. Pope, Columbus, for David Alexander, Adm'r.

H.L. Thompson, for Eleanor Summers Kenney et al.

Fred E. Sams, Columbus, for Union Cemetery Ass'n, Inc.


On July 13, 1988, David Alexander was appointed the Administrator of the Estate of David Summers, deceased; and, subsequently, Alexander filed a petition to determine heirship. The petition indicates that David Alexander is the son of David Summers, deceased, and that Alexander is the sole heir at law of Summers. The decedent, David Summers, died destitute, but now his estate is subject to a considerable inheritance from the estate of his uncle, Alfred A. Adams, which estate is currently being administered in the Circuit Court of Cook County, Illinois.

On July 26, 1988, David Alexander, as the Administrator of David Summers' Estate, requested the named defendants to sign an application for disinterment of the body of the deceased, David Summers, for the purpose of conducting a genetic test, namely a DNA (deoxyribonucleic acid) test, to establish the paternity between the decedent, David Summers, and David Alexander. After all defendants refused to sign the application for disinterment, Alexander motioned the court for an order to compel discovery. On August 22, 1988, the Union Cemetery Association, Inc. motioned the court to join the action as a party-defendant; the motion was granted on September 30, 1988. Meanwhile, on September 26, 1988, the defendant family members motioned to dismiss the action. On October 21, 1988, the defendants filed a motion requesting the court for a protective order. Finally, on November 10, 1988, the court overruled the defendants' motion to dismiss and, after a hearing four days later, the court also overruled the motion for a protective order and ordered defendant Union Cemetery Association to exhume the remains of David Summers, deceased. It is this order of the probate court on which the defendants are now appealing.

This court views this matter as a case of first impression. After taking judicial notice of the accuracy of the DNA test, the court recognizes that the problems of proof inherent to an action in which paternity is alleged should no longer deprive an illegitimate child of proving his paternity. Defendants argue that Alexander should not be given the opportunity to prove that he is the natural son of the decedent, David Summers, because Alexander failed to initiate a parentage action pursuant to R.C. Chapter [42 Ohio Misc.2d 31] 3111 within the applicable statute of limitations, R.C. 3111.05. However, the court does not find this argument persuasive because at the death of David Summers there was no reason for Alexander to establish paternity because there was no benefit to him. Now that the benefit of the inheritance from the Estate of Alfred A. Adams has accrued in the Estate of David Summers, the defendants wish to cut the decedent's son off and deprive him of his father's share. This court recognizes that the legal rights of illegitimate children, especially the right of inheritance, is a developing area of the law, and history bears this out.

Historically, both the English common law and society itself perceived illegitimate children to be a disgrace, a stigma, and labeled this class with the title of "bastards." Through no fault of his own, the bastard was a social outcast. The bastard was the product of an illicit, immoral, and promiscuous relationship. Because the child was not conceived within the legal constraints of marriage, the child could not

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enjoy the legal rights, liberties, and benefits of a child who was in fact conceived within the bond of marriage. The right of an illegitimate child to inherit was nonexistent. Blackstone, in his Commentaries on the Laws of England, at 459, states that " * * * [t]he incapacity of a bastard consists principally in this, that he can not be heir to any one, neither can he have heirs, but of his own body; for, being nullius filius, he is therefore of kin to nobody, and has no ancestor from whom any inheritable blood can be derived. * * * " This status continued in the common law and was eventually carried over to the United States.

An exception to this rule in the common law was found in the state of Connecticut. The common-law rule of nullius filius was repudiated early in Connecticut case law. In the case of Heath v. White (1824), 5 Conn. 228, the court held that an illegitimate child may inherit from his mother, stating that the English law of descents had never been admitted in that state. This 1824 holding affirmed the earlier holding in Brown v. Dye (1795), 2 Root (Conn.) 280, 281, which stated that, " * * * [t]he common law of England, which has been urged in this case, is not to be mentioned as an authority in opposition, to the positive laws of our own state; and nothing can be more unjust than that the innocent offspring should be punished for the crimes of their parents, by being deprived of their right of inheriting by the mother, when there doth not exist amongst men a relation so near and certain, as that of mother and child."

Connecticut's progressive treatment of an illegitimate child's right of inheritance led the way to repeal the common-law rule. By the late 1800s to the early 1900s most states had abrogated the common-law rule by either statute or case law. This matter was best summed up by the conclusions of the Illinois Supreme Court in Morrow v. Morrow (1919), 289 Ill. 135, 138-139, 124 N.E. 386, 387, which stated that "the tendency of the legislation in this State upon this subject shows an intention upon the part of the legislature to remove the rigors of the common law and to establish a rule of descent with reference to illegitimates consonant with the finer sense of justice and right and not to visit the sins of the parents upon the unoffending offspring. * * * " Thus, in a historical...

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