Caldwell's Estate, In re

• Citation: 247 So.2d 1
• Decision Date: 31 March 1971
• Docket Number: No. 39562,39562
• Parties: In re ESTATE of Hortense CALDWELL, Deceased. Maude COMER, Ethel Jackson, and Eva M. Right, Appellants, v. Edith CALDWELL, Howard Caldwell, Eunice Caldwell, and Ethel Caldwell, Appellees.
• Court: United States State Supreme Court of Florida

Page 1

247 So.2d 1

In re ESTATE of Hortense CALDWELL, Deceased.

Maude COMER, Ethel Jackson, and Eva M. Right, Appellants, v. Edith CALDWELL, Howard Caldwell, Eunice Caldwell, and Ethel Caldwell, Appellees.

No. 39562.

Supreme Court of Florida.

March 31, 1971.

Cunningham & Cunningham, West Palm Beach, Stenstrom, Davis & McIntosh, Sanford, and Harold L. Braynon, of Matthews, Braynon & Mapp, Miami, for appellants.

Joe N. Unger, of Smith, Mandler, Smith & Parker, Miami Beach, for appellees.

CARLTON, Justice.

This is a probate matter featuring an inheritance dispute between legitimate and illegitimate collaterals of the deceased, Hortense Caldwell. Appellants, who represent the legitimate collaterals, have directly appealed from an 'Order Determining Heirs' issued by the County Judge's Court, Dade County, in which Fla.Stat. § 731.29, F.S.A. was declared unconstitutional.

'(I)n that the same unjustly and unlawfully discriminates against illegitimate next of kin prohibiting them from enjoying the same rights as legitimate next of kin of the same class in violation of Section 1 of the Fourteenth Amendment to the Constitution of the United States and the Constitution of the State of Florida.'

Hortense Caldwell was the only child resulting from the marriage of Henry and Parthenia Caldwell. She did not marry, and when she died, she left no descendants. Her parents predeceased her. Hortense did leave behind her several surviving relatives of collateral consanguinity; these were all descendants of deceased brothers and sisters of Henry and Parthenia, Hortense's parents. Under Fla.Stat. § 731.23, F.S.A., the intestate succession statute, these surviving relatives were entitled to the estate, if no other lawful heirs existed.

But lawful relatives were not the only relatives to survive Hortense. While married to Pathenia, Hortense's father cohabited with two other women, producing in the process four children out of wedlock: with Minnie White, Henry begot Ethel Caldwell; with Louise Young, Henry begot Edith, Eunice and Howard Caldwell. Howard, Edith and Eunice were formally recognized by Henry as his children; Ethel was not formally recognized, but the litigants here have accepted her as being a child of Henry. These four children were half-brother and half-sisters to Hortense, respectively. Having survived her, they would take under the intestate statute to the exclusion of other surviving collaterals, were they not illegitimate.

The County Judge ruled that Fla.Stat. § 731.29, F.S.A., unconstitutionally deprived illegitimate children of the equal protection of the law since they were equal in all respects to legitimate children, except that they were offspring of unmarried parents. For precedential guidance, the Judge relied upon Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968), and upon In re Estate of Jensen, 162 N.W.2d 861 (N.D.1968), which was decided in part upon the principles announced in Levy.

The Levy case involved a Louisiana Wrongful Death statute, La.Civ.Code Ann. Art. 2315 (Supp.1967), which the courts of that State interpreted as being available as a remedy only to legitimate children of a deceased. See Levy v. State, 192 So.2d 193 (La.App.1966); certiorari was denied by the Supreme Court of Louisiana, 250 La. 25, 193 So.2d 530 (1967). On direct appeal, the Supreme Court of the United States held that to deny a right of recovery under the Wrongful Death statute to illegitimate children would create an invidious discrimination contravening the Equal Protection Clause of the Fourteenth Amendment of the Federal Constitution, since the status of birth had no relationship to the nature of the wrong allegedly inflicted on the mother. In a companion case, Glona v. American Guarantee Co., 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441 (1968), the Court also held that the mother of an illegitimate son could not be denied a remedy under the same Louisiana Wrongful Death statute when it was the son that was killed. In the Estate of Jensen case, Supra, the Supreme Court of North Dakota held that the Levy rationale applied to the question of inheritance by illegitimates; N.D.C.C. § 56--01--05, similar in language to Fla.Stat. § 731.29, F.S.A., was declared unconstitutional under both the North Dakota and the United States Constitution.

When an appellate court has occasion to pass upon the validity of a statute after a trial court has found it to be unconstitutional, the statute is favored with a presumption of constitutionality. This is an exception to the rule that a trial court's judgment is presumptively valid. Moreover, all reasonable doubts as to the validity of statutes under the Constitution are to be resolved in favor of constitutionality. Capelouto v. Orkin Exterminating Co. of Florida, 183 So.2d 532 (Fla.1966); Kass v. Lewin, 104 So.2d 572 (Fla.1958); Waybright v. Duval County, 142 Fla. 875, 196 So. 430 (1940).

We do not find in this case that there has been a demonstration of unconstitutionality sufficient to overcome the presumption that the statute is valid. Under the common law, no inherent right of inheritance existed regardless of whether the survivor was legitimate or illegitimate. See generally, Redfearn, Wills and Administration of Estates in Florida (2nd ed. 1933), §§ 2--5, English statutory enactments eventually provided for inheritance, but illegitimates were not granted the privilege. In modern times, there has been a tendency to lessen the strictures on the illegitimate's ability to inherit. Most of our States have enacted legislation permitting these children to inherit from and through their mothers. See, e.g., Cal.Prob.Code, § 257 (West 1956); N.Y. Estates, Powers and Trusts Law, McKinney's Consol.Laws, c. 17--b, § 4--1.2 (McKinney 1967).

Florida allows inheritance from the mother, and also, when the child is recognized, from the father. Fla.Stat. § 731.29(1), F.S.A. Marriage of the mother to the reputed father after birth legitimatizes the child in all respects. Fla.Stat. § 742.091, F.S.A. A judgment of adoption makes the child a legal heir. Fla.Stat. § 72.22, F.S.A. Additionally, an acknowledged illegitimate child is the equal to a legitimate child under certain specialized legislation; see, e.g., Fla.Stat. § 440.02(13), F.S.A., involving workmen's compensation.

Where statutes give a legitimate status to the illegitimate, this Court has consistently favored a liberal construction of the statutes. See Ezell-Titterton, Inc. v. A.K.F., 234 So.2d 360 (Fla.1970) (child held as acknowledged after father died shortly after conception); Wall v. Altobello, 49 So.2d 532 (Fla.1950), (hotel registration card signed in presence of clerk held sufficient acknowledgment of paternity); In re Horne's Estate, 149 Fla. 710, 7 So.2d 13 (1942) (father's letter to college registrar signed before witness held sufficient acknowledgment). Other courts have favored a liberal approach to the question of inheritance by illegitimates through collaterals Where a legislative scheme supports it; see, e.g., In re Garcia's Estate, 34 Cal.2d 419, 210 P.2d 841 (1949).

But though we prefer a liberal interpretation of the Florida legitimacy statutes, the fact remains that where not altered by statute, the common law status of illegitimate children remains in force. 10 C.J.S. Bastards § 26a; 26 F.L.P., Wills, § 35; 34 Fla.Jur., Wills, § 20; Savage v. Blanks, 117 Ga.App. 316, 160 S.E.2d 461 (1968). Fla.Stat. § 731.29, F.S.A., the statute we review today, has not altered the common law in regard to the inheritance through collaterals; rather, it restates the common law in statutory form. It is not within our prerogative to strike down this statute, a reflection of a longstanding common law policy, solely upon the basis of language in federal Supreme Court cases involving wrongful death and the resultant liability of tort-feasors. ¹ We find the Levy and Glona decisions to be sufficiently distinguishable to defeat appellees' claim that they have overcome the presumption of the validity of Fla.Stat. § 731.29, F.S.A. It is interesting to note that the Supreme Court of the United States has denied certiorari in a relatively similar case; see, Fuhrhop v. Austin, 385 Ill. 149, 52 N.E.2d 267 (1943), cert. den. Wilson v. Fuhrhop, 321 U.S. 796, 64 S.Ct. 849, 88 L.Ed. 1085 (1944).

The Order Determining Heirs entered below is reversed, and this cause is remanded for further treatment consistent with this opinion.

It is so ordered.

BOYD, McCAIN and DEKLE, JJ., concur.

DREW, J. (retired), concurs specially with opinion.

ERVIN, J., dissents with opinion.

ROBERTS, C.J., dissents and concurs with ERVIN, J.

DREW, Justice, Retired (concurring specially).

The constitutionality of Section 731.23, Florida Statutes, F.S.A., is, in my opinion, wholly immaterial in the consideration of the issue in this case.

Much is said in the opinion of the trial court, in the opinion of the majority and the dissenting Judge about the Rights of the illegitimate next of kin and the Rights of other collateral heirs of the deceased. The greatest Right involved here, it seems to me, is the right of the deceased Hortense Caldwell to leave her property to whomsoever she pleased. No one would question the right of the deceased in her lifetime to dispose of her property as she desired. Had she elected to leave a Will, she could have bequeathed her property to the illegitimates or others in such manner and in such amounts as she desired. Instead of giving her property away during her lifetime or leaving a Will, she died intestate. It must be presumed that at the time of her death she knew that under the laws of this State, her property would not descend to the illegitimates. We must assume that she elected to leave her property in this manner.

It is a common practice for people, after being advised of the laws of descent, to elect not to leave a Will, thereby allowing their property to descend according to the laws of the state.

If the...