Estate of Bartolini, In re, 1-94-3658
| Decision Date | 27 November 1996 |
| Docket Number | No. 1-94-3658,1-94-3658 |
| Parties | , 220 Ill.Dec. 803 In re ESTATE OF Barbara L. BARTOLINI, deceased (Russell C. Enke, Petitioner-Appellant, v. Jacqueline Bartolini, Independent Administrator of The Estate of Barbara L. Bartolini, Deceased, Defendant-Appellee). |
| Court | United States Appellate Court of Illinois |
Richard A. Siebel, Siebel, Whipple & Schofield, Chicago, for Petitioner-Appellant.
David L. Choate, Worth, for Respondent-Appellee.
In this case, the Circuit Court of Cook County, Probate Division, entered an order declaring heirship to the intestate estate of Barbara L. Bartolini, wherein the decedent's maternal relatives were determined to be her only heirs. The plaintiff, Russell Enke, a half-brother of the decedent (the son of the decedent's father but of a different mother), filed a petition to amend that order, seeking to have himself and eight other paternal relatives of the decedent named as heirs to the decedent's estate. The trial court denied that petition, and this appeal from that order ensued pursuant to Illinois Supreme Court Rule 304(a) (155 Ill.2d R. 304(a)).
The facts are undisputed. The decedent's father, George Enke (George), married Sarah Curry (Sarah) in 1909 in Pennsylvania, and the two had four children between 1909 and 1914, namely, the plaintiff, his brother and his two sisters. George later abandoned Sarah and their four children in Pennsylvania, and began cohabiting with Violet Stott (Violet) in Chicago. In 1914, George and Violet had their only child, the decedent, Barbara Bartolini, out of wedlock. In 1915, without obtaining a divorce from Sarah, who was still alive at that time, George entered into a bigamous marriage with Violet in Chicago. Both parties concede that that marriage was invalid.
George predeceased both of his putative spouses and the decedent when he died in Chicago in 1947. George's first wife, Sarah, died in 1965 in Pennsylvania; the decedent's mother, Violet, died in 1971 in Chicago; and the decedent died intestate in 1992 in Chicago. The decedent's sole survivors on the side of her mother, Violet, were her cousins, Vernon Church and Dorothy James. Bartolini's sole survivors on her father's side were the progeny of her father and his first wife, Sarah. These included the plaintiff, Russell Enke, who was the decedent's half-brother; his sister, Martha; the three children of his sister Dorothy; and the four grandchildren of his brother James.
In its order declaring heirship, the trial court named the decedent's maternal cousins, Vernon Church and Dorothy James, as the sole heirs to the decedent's intestate estate. This order is consistent with section 2-2 of the Probate Act of 1975 (755 ILCS 5/2-2 (West 1994)), which provides that the intestate estates of illegitimate children pass to their respective maternal relatives but not to their paternal relatives. This rule is to be contrasted with section 2-1 of the Probate Act (755 ILCS 5/2-1 (West 1994)), which provides that the intestate estates of legitimate children pass to their respective paternal as well as maternal relatives. 1 In his petition to amend the trial court's order declaring heirship, plaintiff urged that when the decedent died, she was the legitimate child of George and Violet by virtue of their albeit bigamous marriage ceremony which took place while George was still married to his first wife, Sarah. Therefore, plaintiff urged, because the decedent was legitimate when she died, her aforementioned paternal relatives were entitled to participate in the distribution of her estate.
In support of his petition to amend the order declaring heirship, plaintiff relied upon the legitimating statutes enacted under section 2-2(h) of the Probate Act (755 ILCS 5/2-2(h) (West 1994)), and under sections 212(c) and 303 of the Illinois Marriage and Dissolution of Marriage Act (hereinafter the Marriage Act) (750 ILCS 5/212(c), 303 (West 1994)). Section 2-2(h) of the Probate Act provides, inter alia, that
"[a] person who was illegitimate whose parents intermarry and who is acknowledged by the father as the father's child is legitimate." 755 ILCS 5/2-2(h) (West 1994).
Section 212(c) of the Marriage Act, also cited by the plaintiff in his petition to amend, provides that "[c]hildren born of or adopted of a prohibited or common law marriage are legitimate." 750 ILCS 5/212(c) (West 1994). Like section 2-2(h) of the Probate Act and section 212(c) of the Marriage Act, section 303 of the Marriage Act provides that
On the basis of the foregoing provisions, the plaintiff argued that the decedent died as a legitimate child by virtue of the bigamous marriage of her parents which took place after her birth, and that therefore, her paternal relatives were entitled to participate with the maternal relatives in the distribution of her intestate estate.
The independent administrator of the decedent's estate, Jacqueline Bartolini (hereinafter referred to as the defendant), filed a response to the plaintiff's petition to amend the trial court's order declaring heirship. In her response, the defendant argued that the statutory sections cited by the plaintiff were irrelevant because the decedent was not "born of" a prohibited or invalid marriage, as provided by sections 212(c) and 303 of the Marriage Act, but, rather, was born prior to an invalid marriage, out of wedlock. Moreover, the defendant argued that that invalid marriage did not legitimate the decedent under either section 303 of the Marriage Act or section 2-2(h) of the Probate Act, because, she urged, those statutory sections contemplate that only valid marriages would legitimate a child born out of wedlock. Therefore, defendant urged, only the decedent's maternal heirs were entitled to participate in the distribution of her intestate estate.
The parties agree that the sole issue on appeal is whether a child born out of wedlock, whose parents subsequently enter into an invalid marriage, is thereby legitimated for the purpose of determining heirship. Plaintiff contends that sections 212(c) and 303 of the Marriage Act, when read together, must lead us to the conclusion that an invalid marriage operates to legitimate a child born out of wedlock. Plaintiff further argues that Illinois public policy favors this interpretation and the legitimation which it fosters. Although there are no Illinois decisions explicitly on point, plaintiff also contends that there is persuasive authority from other states whose courts have interpreted statutes essentially identical to sections 212(c) and 303 of the Marriage Act under similar circumstances in favor of legitimacy. For the reasons which follow, we agree with the plaintiff's position.
Since the enactment of the modern legitimating statutes (755 ILCS 5/2-2(h), 750 ILCS 5/212, 303 (West 1994)), neither the Illinois courts nor the legislature has directly addressed the question of whether invalid marriages will serve to legitimate children born out of wedlock. As noted, the legitimating statutes themselves merely provide that a child born of an invalid marriage is legitimate (750 ILCS 5/212(c), 303 (West 1994)), and that a child born out of wedlock becomes legitimate when his parents marry each other (750 ILCS 5/303; 755 ILCS 5/2-2(h) (West 1994)). However, these statutes do not address whether an invalid marriage will suffice to legitimate a child born out of wedlock. In other words, whether the terms "marry" or "intermarry" as used in these legitimating statutes encompass invalid marriages remains undefined.
Accordingly, the Illinois decisions in Miller v. Pennington, 218 Ill. 220, 75 N.E. 919 (1905) and Peirce v. Peirce, 379 Ill. 185, 39 N.E.2d 990 (1942), which the plaintiff has cited, are not helpful, since each of those cases involved children born out of wedlock who were legitimated through a subsequent valid marriage by their parents. In each of those cases, the provisions in the legitimating statutes providing for the legitimation of children born out of wedlock were properly invoked. However, in each of those cases, there was a legally valid subsequent intermarriage. Unlike here, those cases did not address whether a subsequent invalid marriage would legitimate a child under section 303 of the Marriage Act (750 ILCS 5/303 (West 1994)) and section 2-2(h) of the Probate Act. 755 ILCS 5/2-2(h) (West 1994).
Correspondingly, the Illinois decisions in Krupp v. Sackwitz, 30 Ill.App.2d 450, 174 N.E.2d 877 (1961), In re Estate of Karas, 21 Ill.App.3d 564, 315 N.E.2d 603 (1974) and Dotson v. Sears, Roebuck & Co., 157 Ill.App.3d 1036, 110 Ill.Dec. 177, 510 N.E.2d 1208 (1987), which the defendant has cited, are similarly non-edifying. Both Krupp and Estate of Karas involved children born out of wedlock whose attempt to inherit from their father was rejected. However, both Krupp and Estate of Karas involved circumstances in which no subsequent marriage took place between the parents of the children born out of wedlock, much less an invalid marriage. Similarly, in Dotson, where the court rejected the claim by the father of a child born out of wedlock seeking to inherit from that child, the child was never legitimated since, as in Krupp and Estate of Karas, there was no subsequent intermarriage as required by statute.
Defendant also purports to cite to the Illinois decisions in Sparling v. Industrial Comm'n, 48...
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