Belton's Estate, In re

• Decision Date: 04 August 1972
• Citation: 70 Misc.2d 814,335 N.Y.S.2d 177
• Parties: In re ESTATE of Roscoe BELTON. Surrogate's Court, New York County
• Court: New York Surrogate Court

Page 177

335 N.Y.S.2d 177

70 Misc.2d 814

In re ESTATE of Roscoe BELTON.

Surrogate's Court, New York County.

Aug. 4, 1972.

Joseph T. Arenson, New York City, for the Public Administrator (Lester C. Gelinas and Waldemar J. Dittmar, New York City, of counsel).

William D. Baer, New York City, guardian ad litem for unknown distributees.

Louis J. Lefkowitz, Atty. Gen., of the State of New York, New York City, for unknown distributees (Suzanne M. McGrattam, New York City, of counsel).

Paul Klein, New York City, John Cataldo, Legal Aid Society, New York City, and Terry Mercer, for objectant Roslyn Belton.

S. SAMUEL DiFALCO, Surrogate.

In this accounting proceeding a daughter, born out of wedlock, alleges that she is decedent's sole distributee and claims the balance of his intestate estate now in the hands of the Public Administrator. The Attorney-General of the State of New York, cited in behalf of unknown distributees, has appeared in the proceeding and joins the Public Administrator in resisting her claim. If an illegitimate child does not inherit and no other distributees appear, the fund will ultimately escheat.

At the hearing, the mother of the claimant testified as to her parentage. There were introduced in evidence the claimant's birth certificate bearing decedent's name as father, an affidavit made by the decedent at birth admitting paternity, and the daughter's public school report cards signed by the decedent as father. Counsel for the claimant conceded that there were no paternity proceedings to establish filiation. It is claimant's contention that Section 4--1.2(a)(2)(3) of the Estates, Powers and Trusts Law of the State of New York is unconstitutional. The law under attack reads:

' § 4--1.2 Inheritance by or from illegitimate persons

(a) For the purpose of this article:

(2) An illegitimate child is the legitimate child of his father so that he and his issue inherit from his father if a court of competent jurisdiction has, during the lifetime of the father, made an order of filiation declaring paternity in a proceeding instituted during the pregnancy of the mother or within two years from the birth of the child.

(3) The existence of an agreement obligating the father to support the illegitimate child does not qualify such child or his issue to inherit from the father in the absence of an order of filiation made as prescribed by subparagraph (2).'

This statute finds its source in Decedent Estate Law, Section 83--a which was passed by the Legislature in 1965, effective March 1, 1966.

Before extending the rights of an illegitimate child to inherit from his father, the Legislature gave careful consideration to the rights of all persons who would inherit an intestate estate. The Fourth Report of the Temporary State Commission on the Law of Estates (1965--p. 265--267) says:

'The recommendations of this report are intended to grant to illegitimates in so far as practicable rights of inheritance on a part with those enjoyed by legitimate children while protecting innocent adults and those rightfully interested in their estates from fraudulent claims of heirship and harassing litigation instituted by those seeking to establish themselves as illegitimate heirs. This end is achieved by equating legitimates and illegitimates for the purpose of inheritance from the mother and maternal kindred, and granting the illegitimate a limited right of inheritance from his father subject to statutory safeguards. The adoption of the recommendations proposed in this report will safeguard the interests of the illegitimate in the proceeds of a successful action for wrongful death, and estates passing by will or devise, as well as in estates descending and being distributed by operation of the law of intestate succession.

The utmost caution should be exercised to protect innocent men from unjust accusations in paternity claims. To avoid this hazard, no informal method of acknowledgment has been provided for in the recommendations. While a formal acknowledgment alone would be a considerable advance over the statutes of most states allowing inheritance from an acknowledging father, it is felt that the recommendation here made gives even more protection against such hazard. The procedure in other states provides merely that any informal witnessed writing establishing the relationship of father and child between the deceased and the claimant is sufficient to establish paternity, allows paternity to be established after the death of the father, thus affording considerable opportunity for falsification of evidence and inviting harassing litigation. These problems are eliminated by requiring a court order establishing paternity during the lifetime of the father.

A further safeguard is to be found in the statute of limitations recommended which bars a suit to establish heirship not brought within two years after the birth of the child. The two-year period is currently prescribed by section 517 of the Family Court Act in paternity proceedings. The statute of limitations will not apply to voluntary acknowledgments.'

The Legislature was attempting to provide fair and reasonable standards for proving rights to participate in an estate. There are obvious reasons for different provisions on respect of the mother's estate and that of the putative father. The Legislature found good reason for requiring a court determination of paternity and for prescribing a limitation of time.

In Matter of Ortiz, 60 Misc.2d 756, 303 N.Y.S.2d 806, Surrogate Sobel of Kings County considered the rights of illegitimates to inherit and in a learned opinion held that a statute which barred illegitimates from sharing the damages sustained by reason of the wrongful death of their father was unconstitutional. In that case the court mentioned that where the...