Erbe, Matter of

• Decision Date: 27 June 1990
• Docket Number: No. 16775,16775
• Parties: In the Matter of the Estate of Arlyn L. ERBE, Deceased.
• Court: South Dakota Supreme Court

Page 867

457 N.W.2d 867

In the Matter of the Estate of Arlyn L. ERBE, Deceased.

No. 16775.

Supreme Court of South Dakota.

Argued March 20, 1990.

Decided June 27, 1990.

Vicki L. Tucek, Rice & Ewinger Law Firm, Aberdeen, for appellant.

Jack R. Von Wald, Selby, for appellees and co-executrixes, Eunice Mueller and Audrey Rabenberg Parent.

HENDERSON, Justice.

PROCEDURAL HISTORY/ISSUES

This case involves a claim of inheritance brought by Terry Wayne Lassle (Lassle), against the estate of the decedent, Arlyn L. Erbe (Erbe), who died testate on December 14, 1987. His will nominated and appointed Audrey Rabenberg Parent (Parent) and Eunice Mueller (Mueller), the decedent's sisters, as co-executrixes of the will.

On September 19, 1988, a petition was filed by Lassle stating that he was the sole child of the decedent and that the will admitted to probate did not make any provisions for him. Four months later, Lassle filed a Declaratory Judgment action seeking determination of heirship and a Motion requesting that the co-executrixes be restrained from closing and distributing any assets in the estate until determination of heirship was first made by the court.

After the restraining motion was served, the co-executrixes made a motion to Quash and Terminate the Documents filed by Lassle in September 1988. The co-executrixes also requested Lassle's Motion for a Restraining Order be denied.

On February 1, 1989, Lassle filed a response to the co-executrixes' Motion to Quash and Terminate. A hearing was held regarding the numerous motions on March 21, 1989. On that day, the judge rendered a Memorandum Decision stating that the requirements of SDCL 29-1-15 or SDCL 25-6-1 must be met by Lassle, otherwise he has no legally protectable interest and no standing to bring a declaratory judgment action. The court set a date for a hearing, in regards to proving heirship under SDCL 29-1-15.

On May 18, 1989, a hearing was held to dispose of all the pending motions. (Lassle also filed a Motion for Blood Tests and Notice Hearing). At this hearing, the court found that SDCL 29-1-15 had not been complied with by Lassle. The trial court further granted the co-executrixes' Motion to Quash and Terminate the Petition and Objections of Will to Probate. Lassle was served with the trial court's order denying all of his motions.

On appeal Lassle presents six issues:

(1) Is the application of SDCL 29-1-15 unconstitutional and does it deny an illegitimate child equal protection when he asserts a claim for inheritance in testate proceedings?

(2) Must an illegitimate child meet the requirements of SDCL 29-1-15 before he may assert a claim for inheritance as a pretermitted heir under SDCL 29-6-10 when his father dies testate?

(3) Is an illegitimate child precluded from bringing a declaratory action to prove heirship after his father dies testate?

(4) May blood tests be ordered to establish heirship by an illegitimate child?

(5) May an estate and its executrixes be restrained from filing a final account, decree and distribution until heirship is proved by an illegitimate child?

(6) Were Lassle's instruments properly quashed and terminated based on a strict construction of SDCL 29-1-15?

-Holding-

We affirm the trial court's holding that Lassle is not a legal heir of Erbe's estate. It is unnecessary to address issues 3 through 6, based upon our decision.

FACTS

Erbe died testate on December 14, 1987, in Bowdle, South Dakota. He left two living sisters, Parent and Mueller, according to the terms of his will to share in his estate equally.

Approximately 32 years before his death, Erbe allegedly had a liaison with Hilda Lassle (Hilda). Hilda had come to the Erbe farm to work in about 1946 or 1947 and left after becoming pregnant in June of 1956.

Hilda Lassle gave birth to a son, Terry Wayne Lassle, on June 20, 1956. Hilda apparently told members of Erbe's family that Erbe was Terry's father. Erbe never admitted to Hilda that he was Terry's father.

After Hilda was discharged from the hospital, Earl Erbe (Earl), Arlyn Erbe's father, made arrangements for Hilda and her baby to stay with Parent, Arlyn Erbe's sister. Parent arranged for blood tests to be performed but the results of such tests are unknown at this time. Parent also arranged for the child's baptism and she and her husband were the child's sponsors. Hilda stayed at Parent's farm for two to three months at which time Earl moved Hilda and her son to another residence, the Senns. After three to four months, Hilda and the baby moved to Bismarck, North Dakota with her sister.

In the summer of 1987, Hilda informed her son that Erbe was his father. There was never any discussions regarding his parentage prior to that time. Lassle's only meeting with Erbe occurred at a hospital in August of 1987, four months before Erbe died.

DECISION

I. As applied to the facts in this case, SDCL 29-1-15 is not unconstitutional.

The rights of illegitimate children and statutory classifications which tend to limit those rights have undergone close examination by the courts of this nation in recent years. It is well-settled law that classifications based on illegitimacy, while not being subject to "strict scrutiny," must be substantially related to permissible state interests. Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978); Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977). These statutes, which tend to differentiate between illegitimate and legitimate children, must bear some rational relationship to legitimate state purposes. As applied to inheritance statutes, the Supreme Court has recognized that the State may apply "a more demanding standard" for illegitimate children who seek to inherit from their father's estate in order to promote the efficient administration of a decedent's estate and to avoid spurious claims arising out of paternity actions. Lalli v. Lalli, supra, 99 S.Ct. at 523.

SDCL 29-1-15 provides an appropriate legal framework to evaluate the right of an illegitimate child to inherit from his father if one of several statutory procedures are followed:

SDCL 29-1-15. Inheritance by or through the illegitimate child. Every illegitimate child is an heir of the person who, in writing, signed in the presence of a competent witness, acknowledges himself to be the father of such child; and in all cases is an heir of his mother; and inherits his or her estate, in whole or in part as the case may be, in the same manner as if he had been born in lawful wedlock. He shall represent his mother equally with her legitimate children by inheriting any part of the estate of her kindred, either lineal or collateral; but he does not represent his father by inheriting any part of the estate of his kindred, either lineal or collateral, unless before his death his parents shall be intermarried, and his father after such marriage acknowledges him as his child, or adopts him into his family; in which case such child and all the legitimate children are considered brothers and sisters, and on the death of either of them, intestate, and without issue, the other inherit his estate, and are heirs as hereinbefore provided, in like manner as if all the children had been legitimate; saving to the father and mother respectively their rights in the estates of all the children in like manner as if all had been legitimate.

In light of the fact that the United States Supreme Court recognizes that there are legitimate state interests which can justify treating legitimate and illegitimate children differently, we find that Lassle has failed to carry his burden of proving that SDCL 29-1-15 bears no rational relationship to a legitimate state interest.

SDCL 29-1-15, while providing a means for the illegitimate child to inherit from his father, also serves state interests by establishing safeguards to protect the sanctity of a will and to provide for the orderly settlement of estates. As such, equal protection of the law is afforded to illegitimates.

In Re Estate of Blumreich, 84 Wis.2d 545, 267 N.W.2d 870 (1978) is a case which is particularly instructive in this analysis. Blumreich was a constitutional challenge to the Wisconsin intestacy statute based on the Trimble ruling. At the time of this action, Wisconsin recognized paternity orders entered during the lifetime of then deceased fathers. Wisconsin law did not allow illegitimates to bring posthumous paternity actions to establish a right to inherit under the state's intestacy statute.

Facing an issue similar to that which presented itself before Lalli, the Wisconsin Court found Wisconsin's intestacy statute constitutional "Applying these principles to the instant case, we conclude that sec. 852.05(1), Stats., constitutes a 'carefully tuned' statute sensitive to the conflicting considerations emphasized in Trimble, supra. There is no evidence that this statute reflects an impermissible effort to influence the conduct of parents by imposing sanctions on their illegitimate children. Indeed, the statutory provisions do not distinguish between legitimates and illegitimates so much as they distinguish among various categories of illegitimates, and they specifically allow proof of paternity by either of the two methods identified in Trimble, supra, as accurate and reliable: prior adjudication and formal acknowledgment. We believe the exclusion of other forms of posthumous proof of paternity represents a reasonable effort '... to eliminate imprecise and unduly burdensome methods of establishing paternity.' Trimble v. Gordon ... [97 S.Ct.] at 1466. It has been said that the accusation of paternity is easy to make but difficult to defend against. See, e.g.: In re Commissioner of Social Services, 70 Misc.2d 581, 333 N.Y.S.2d 621, 623 (1972). To permit paternity to be established after the death of the putative father, on the basis of his alleged informal, verbal statements, would be to place his estate at an unreasonable disadvantage in...