Batchelor v. Batchelor, 2-82-007-CV

• Decision Date: 20 May 1982
• Docket Number: No. 2-82-007-CV,2-82-007-CV
• Citation: 634 S.W.2d 71
• Parties: James Steven BATCHELOR and Lonnie Dale Burrow, Appellants, v. Judith Ann BATCHELOR, Appellee.
• Court: Texas Court of Appeals

Page 71

634 S.W.2d 71

James Steven BATCHELOR and Lonnie Dale Burrow, Appellants, v. Judith Ann BATCHELOR, Appellee.

No. 2-82-007-CV.

Court of Appeals of Texas, Fort Worth.

May 20, 1982.

Rehearing Denied June 17, 1982.

Norman Darwin & Associates, and Ken M. Link, Fort Worth, for appellants.

Barlow, Gardner Tucker & Garsek, and Elliott S. Garsek, Michael T. Watson, Mayo, Pickering, Hoover & Carter, and David F. Pickering, Fort Worth, for appellee.

Before MASSEY, C. J., and SPURLOCK and JORDAN, JJ.

OPINION

JORDAN, Justice.

James Carroll Batchelor died intestate on August 4, 1980, survived by his widow, Judith Ann Batchelor, appellee herein, a brother, Charles E. Batchelor, and two legitimate sons, James Carroll Batchelor, Jr., and James Keith Batchelor. Both the brother, Charles E. Batchelor and the widow, Judith Ann Batchelor, filed separate Applications to Declare Heirship. Thereafter, appellants, James Steven Batchelor and Lonnie Dale Burrow filed a Plea of Intervention alleging that they were the natural born, illegitimate sons of the Decedent and requested that they be declared the sons of the Decedent. The Intervenors did not allege that they were entitled to inherit from Decedent.

Thereafter the Probate Court granted appellee's motion for summary judgment on the ground that as a matter of law appellants, James Steven Batchelor and Lonnie Dale Burrow are not legitimate children of the Decedent, James Carroll Batchelor, and thus have no title in or interest to his estate.

We affirm.

In two points of error appellants say that the granting of the summary judgment was error because the evidence failed to establish as a matter of law that appellants had no inheritance rights because there was a fact issue as to whether the Decedent, James Carroll Batchelor, had recognized appellants as his children.

The common law did not recognize any right in an illegitimate child to any interest in the father's estate. Hayworth v. Williams, 102 Tex. 308, 116 S.W. 43 (1909). In 1955 and again in 1977 the Texas Legislature provided that while illegitimate children could inherit from their mothers under the laws of descent and distribution, they had no right to inherit from their father. Bell v. Hinkle, 607 S.W.2d 936 (Tex.Civ.App.-Houston, (14th Dist.) 1980). That situation changed, however, with the passage by the Legislature in 1979 of Section 42(b) of Texas Probate Code, effective August 27, 1979. James Carroll Batchelor died intestate on August 4, 1980.

Section 42(b) of the Probate Code says that for the purpose of inheritance, a child is the legitimate child of his father and may inherit from his father under three circumstances: (1) If he is born or conceived before or during the marriage of his father and mother; (2) If he is legitimated by court decree as provided in Chapter 13 of the Family Code; or (3) If the father has executed a Statement of Paternity as provided in Section 13.22 of the Family Code, or a like statement properly executed in another jurisdiction.

Chapter 13 of the Family Code establishes a regular procedure through which a child may obtain a decree designating the alleged father as the father of the child in order to create a parent-child relationship. This may be an involuntary procedure, pursuant to Secs. 13.01 through 13.09, or it may be a voluntary legitimation pursuant to Section 13.21 of the Family Code. If neither of these procedures is followed, a child may still be legitimated for the purposes of inheritance if the father has executed a written statement of paternity pursuant to Section 13.22 of the Family Code.

It is undisputed that none of the procedures designated by Section 42(b) of the Probate Code have been followed in this case. It is appellant's position on appeal that despite the provisions of Section 42(b) they are entitled to inherit from the Decedent because they were "recognized" by Decedent as his children. Appellants contend that the deposition testimony of Judith Ann Burrow, James Steven Batchelor and Lonnie Dale Burrow contain ample evidence to show that in fact appellants were the illegitimate children of Decedent, James Carroll Batchelor, born to Judith Ann Burrow, and that they were recognized as such by Decedent.

They contend that this evidence raises a fact issue as to whether or not they were "recognized" by Decedent as his children and that because the definition of the term "child" contained in Section 3(b) of the Texas Probate Code includes a "recognized" child, that they were entitled to a fact issue to be submitted to the jury on the question of whether or not appellants were "recognized" by Decedent as his children. They cite as authority for this argument the case of Johnson v. Mariscal, 620 S.W.2d 905 (Tex.Civ.App.-Corpus Christi, 1981, writ ref.n. r. e.), which we will later discuss. We do not agree with this contention.

The 1979 amendment to Section 42 of the Texas Probate Code, and the legislative history thereof, indicates that the amendment was mandated by the United States Supreme Court decision in Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978). In this case, the Supreme Court upheld the constitutionality of a New York statute requiring that an illegitimate child, in order to inherit from his father, must show that a court of competent jurisdiction had, during the father's lifetime, entered an order declaring paternity. The court pointed out that the primary goal underlying the statute was to provide a just and orderly disposition of a decedent's property where paternal inheritance by illegitimate children was an issue. In order to facilitate the administration of the estate, an illegitimate child could not inherit from his father without following the statutory prerequisites, even where there was a notarized document referring to the illegitimate as "my son." The court left to the states the task of providing an appropriate legal framework to further the interest of safeguarding the orderly disposition of property upon death so that the states could avoid a case by case determination of paternity.

It is observed that the current version of Section 42(b) is now more liberal and permits more methods of proof of the right of the illegitimate child to inherit from the father than did the New York statute.

We think this case is controlled by Bell v. Hinkle, supra, and not by Johnson v. Mariscal, supra, as argued by appellants. In Bell, the court pointed out, as we have here, that Section 42(b) of the Texas Probate Code provides that an illegitimate child can inherit from his father only if one of the three requirements of that Section...