A---. B---. v. C---. D---., 2

• Decision Date: 29 December 1971
• Docket Number: No. 2,2
• Parties: A_ _. B_ _., Plaintiff-Appellant, v. C_ _. D_ _., Defendant-Appellee
• Court: Indiana Appellate Court

Page 599

277 N.E.2d 599

150 Ind.App. 535

A_ _. B_ _., Plaintiff-Appellant, v. C_ _. D_ _., Defendant-Appellee.

Appellate Court of Indiana, Division No. 2.

Dec. 29, 1971.

WHITE, Judge.

Defendant-appellee was married to plaintiff-appellant's present wife at the time she conceived and bore a son. She thereafter divorced defendant and married plaintiff. In the divorce decree she was awarded custody of the son as a child of the marriage. Plaintiff-appellant brought this declaratory judgment action to have himself declared the legitimate father of the child. The rationale of the action is that the child was born illegitimate, (or 'out of wedlock'), by reason of the fact that its mother's then husband is not its biological father ¹, and that it has been legitimatized as plaintiff's son by plaintiff's marrying the mother and acknowledging the child as his own.

The trial court entered summary judgment for defendant upon finding

'that plaintiff has no statutory authority, standing or jurisdiction to bring this action. The Court further finds that it would be against public policy to permit such an action under the facts of this case.'

The factual situation which plaintiff alleges may be far from common, but it is not unique. Married women have borne children conceived in adultery and, after divorce from their husbands, some have married their children's biological fathers. In at least two jurisdictions the resulting variance between the legal and the natural paternal relationships can be eliminated by remolding the legal to conform with the natural. In one California case, a judicial decree made the child the legitimate child of the second marriage. ² In New York there are several cases indicating that such a result can be achieved in a declaratory judgment action. ³ Whether there are other jurisdictions in which the same result could be or has been judicially achieved, we are not informed. ⁴ We are satisfied, however, that the present substantive law of Indiana, with respect to legitimation, differs so little from the common law of England in Blackstone's time ⁵ that such a result is substantively unattainable, procedural questions aside. Blackstone concluded his discussion of the parent-child relationship with a statement which, in substance, is the law of Indiana today. It reads:

'A bastard may, lastly, be made legitimate, and capable of inheriting, by the transcendent power of an act of parliament, and not otherwise: as was done in the case of John of Gaunt's bastard children, by a statute of Richard the Second.' ⁶ (Our emphasis.)

In Indiana an illegitimate is capable of inheritance from and through its mother (and she through and from him) and he may be rendered capable with respect to his father 'if but only if, (1) the paternity of such child has been established by law, during the father's lifetime; or (2) if the putative father marries the mother of the child and acknowledges the child to be his own,' ⁷ but there is no way he can be made legitimate. ⁸ Such, however, was not always our law.

From 1831 until 1954 a child which was born illegitimate became legitimate by its mother's subsequent marriage if her husband acknowledged the child as his own. ⁹ The 1831 statute which thus provided for legitimation by subsequent marriage was apparently the first introduction of that civil law principle of legitimation into Indiana law. ¹⁰ It was reenacted in 1843 and 1852. 1 R.S.1852, Ch. 27, § 9 (formerly Ind.Ann.Stat. § 6--2310 (Burns 1933)) provided:

'If a man shall marry the mother of an illegitimate child, and acknowledge it as his own, such child shall be deemed legitimate.' (Emphasis added.)

It was expressly repealed, effective January 1, 1954, by the Probate Code, ¹¹ and replaced by section 207 of the Probate Code ¹², which reads as follows:

'(a) For the purpose of inheritance to, through and from an illegitimate child, such child shall be treated the same as if he were the legitimate child of his mother, so that he and his issue shall inherit from his mother and from his maternal kindred, both descendants and collaterals, in all degrees, and they may inherit from him. Such child shall also be treated the same as if he were a legitimate child of his mother for the purpose of determining homestead rights, and the making of family allowances.

'(b) For the purpose of inheritance to, through and from an illegitimate child, such child shall be treated the same as if he were the legitimate child of his father, if but only if, (1) the paternity of such child has been established by law, during the father's lifetime; or (2) if the putative father marries the mother of the child and acknowledges the child to be his own.

'The testimony of the mother may be received in evidence to establish such paternity and acknowledgment but no judgment shall be made upon the evidence of the mother alone. The evidence of the mother must be supported by corroborative evidence or circumstances.

'When such paternity is established as provided herein such child shall be treated the same as if he were the legitimate child of his father, so that he and his issue shall inherit from his father and from his paternal kindred, both descendants and collateral, in all degrees, and they may inherit from him. Such child shall also be treated the same as if he were a legitimate child of his father for the purpose of determining homestead rights, and the making of family allowances.'

As was said in Lund's Estate (1945), 26 Cal.2d 472, 159 P.2d 643, 162 A.L.R. 606, 609:

'Statutes under which a child born illegitimate can, by virtue of subsequent conduct of his father (or of both parents), became capable of inheriting from the father, are usually classified as either statutes of legitimation (under which the child can, in some jurisdictions, attain the full status of legitimacy) or statutes of succession (under which the child, although remaining illegitimate in social status, can, at least to a limited extent, inherit as if he were legitimate, or, as is sometimes said, under which he is legitimated for the purpose of inheritance only). See, e.g., Pfeifer v. Wright, 10 Cir., 1930, 41 F.2d 464, 73 A.L.R. 932, certiorari denied 282 U.S. 896, 51 S.Ct. 181, 75 L.Ed. 789; 2 Beale, Conflict of Laws (1935) § 246.2, p. 967; Rest., Conflict of Laws, § 246, p. 329, and comments thereto. . . .'

As we read that statute it is clearly of the second category. It contains no words even faintly resembling the legitimating words of the 1852 statute. These words were: 'such child shall be deemed legitimate.'

In Pfeifer v. Wright (10th Cir. 1930), 41 F.2d 464, 466, the court quoted a Kansas statute, in pertinent part as follows:

"Illegitimate children inherit from the mother, and the mother from the children.

"They shall also inherit from the father whenever they have been recognized by him as his children; but such recognition must have been general and notorious, or else in writing."

The question of statutory interpretation in that case was the same as here although it arose in a more traditional manner, i.e., inheritance rights in a conflict of laws context. As stated by the court:

'The inquiry then is, whether on the facts stated in the bill this statute legitimated appellant, so as to give her the status of a lawful child, and thus make her an heir to decedent as such (in Oklahoma); or whether the statute only made her an heir to decedent as an illegitimate, effectual only as to property in Kansas.

'We are unable to say that the statute relied on discloses a legislative intention to change the status of a child from illegitimate to legitimate. Its only purpose, so far as we are able to discover from its terms, is to give to an illegitimate child as such the right to inherit from the father on the conditions named. . . .' (41 F.2d at 467).

We have twice reached the same conclusion with respect to a very similar Indiana statute which was also replaced by § 207 of the Probate Code. It is Ind.Acts 1901, Ch. 126, § 1, p. 288, which reads in pertinent part as follows:

'The illegitimate child or children of any man dying intestate and having acknowledged such child or children during his lifetime as his own, shall inherit his estate, both real and personal, and shall be deemed and taken to be the heir or heirs of such intestate in the same manner and to the same extent as if such child or children had been legitimate . . . provided, That the provisions of this act shall not apply where the father of the illegitimate child, at his death, had surviving legitimate children or descendants of legitimate children.' (Also Ind.Ann.Stat. § 6--2309 (Burns 1933)).

Of that statute we said in Wilson v. Bass (1918), 70 Ind.App. 116, 124, 118 N.E. 379, 382:

'It is argued in behalf of appellant that where an illegitimate child is acknowledged, under the provisions of section 3000, supra, (the section number of that statute in the Burns 1914 edition of Indiana Annotated statutes) he becomes a legitimate child with full right of inheritance, in the absence of other legitimate children or their descendants, and hence that appellant in this case inherited from the mother of his putative father to the same extent that he would have inherited had he been born in lawful wedlock. We do not believe that the statute is reasonably susceptible of such a construction. The statute by its terms seems plainly to distinguish between an illegitimate and a legitimate child, extending to the former a right to inherit from the putative father only, under certain circumstances, in case of the absence of legitimate children. Thus the language is to the effect that the illegitimate child of any man dying intestate shall inherit his estate to the same extent as if such child had been legitimate, provided that the act shall not apply where the father of the illegitimate at his death had surviving a legitimate child. A statute seems to recognize the illegitimate as illegitimate after...