Estate of Ginochio

• Decision Date: 22 November 1974
• Citation: 117 Cal.Rptr. 565,43 Cal.App.3d 412
• Court: California Court of Appeals Court of Appeals
• Parties: In re ESTATE of Edward J. GINOCHIO, Deceased. Seane GINOCHIO, by and through his guardian ad litem Marietta Cartillar, Petitioner and Appellant, v. Perrina J. GINOCHIO, Executrix, Objector and Respondent. Civ. 33996.

Page 565

117 Cal.Rptr. 565

43 Cal.App.3d 412

In re ESTATE of Edward J. GINOCHIO, Deceased.

Seane GINOCHIO, by and through his guardian ad litem Marietta Cartillar, Petitioner and Appellant, v. Perrina J. GINOCHIO, Executrix, Objector and Respondent.

Civ. 33996.

Court of Appeal, First District, Division 2, California.

Nov. 22, 1974.

Mancuso & Mancuso, San Jose, for petitioner and appellant.

Allen, Poggi & Hofmann, Oakland, for objector and respondent.

KANE, Associate Justice.

Petitioner Seane Ginochio ('Seane') appeals from an order denying his motion to set aside the order admitting the will of Edward J. Ginochio, deceased ('Edward') to probate.

The summarized facts indicate that Seane was born July 15, 1961, as a natural child of Marietta Cartillar ('Marietta') and Edward. At the time of Seane's birth Edward was lawfully married to Perrina J. Ginochio ('Perrina'), which marriage lasted from August 30, 1925 until Edward's death. On April 4, 1966, Marietta brought a paternity action against Edward. After a trial in which the issue of paternity was vigorously contested, Edward was found to be Seane's father and ordered to pay child support for him. On May 10, 1966, after the judgment establishing paternity was entered, Edward made a will in which he left his entire estate to his lawful wife, Perrina, in case she survived him by 90 days, otherwise all his estate was to pass to his daughter, Rosemarie Curzi ('Rosemarie') or her issue. Paragraph Six of the will contained special provisions by which Edward excluded any other person from his estate whether such persons claimed to be his heirs or not, including any child or issue of any deceased child. ¹

On October 31, 1971, Edward died, survived by both Perrina and Rosemarie. On December 7, 1971, Perrina filed a petition for probate of will and for letters testamentary. Hearing was set by the court for December 23, 1971. Since Seane was not listed in the petition as an heir, legatee or devisee, no notice of hearing was sent to him. Claiming that the lack of such notice deprived the probate court of jurisdiction, Seane moved to set aside the order admitting will for probate. The probate court denied the motion. The present appeal followed.

In substance, appellant maintains that he became an heir under Probate Code, ² section 255, either because the judicial determination of paternity is equivalent to an acknowledgment by the father in writing within the meaning of that statute or because section 255 is unconstitutional. As an heir, it is argued, appellant was entitled to notice of hearing pursuant to section 328, and failure to give such notice was a jurisdictional flaw which deprived the court of the power to proceed (Estate of Poder (1969), 274 Cal.App.2d 786, 79 Cal.Rptr. 484).

In California there is a well-delineated statutory scheme by which a child born out of wedlock may be legitimated. First, a child born before wedlock becomes legitimate by the subsequent marriage of his parents (Cov.Code, § 215). Second, the illegitimate child may be legitimated by adoption under section 230 of the Civil Code. ³ But, in order to legitimate under this latter section, all the statutory requisites must be fulfilled. Thus, it is necessary to show: (1) illegitimacy; (2) paternity; (3) public acknowledgment by the father; (4) reception into family; and (5) treatment of the child as legitimate. (Estate of Flood (1933) 217 Cal. 763, 774, 779, 21 P.2d 579; Laugenour v. Fogg (1942) 48 Cal.App.2d 848, 120 P.2d 690; 6 Witkin, Summary of Cal. Law (1974 ed.), § 237, p. 4742). In addition to, but distinct from these two methods of legitimation which elevate the illegitimate child to the status of a legitimate offspring giving him all the rights to which a legitimate child is entitled, including the right to inherit from his parents, there is a third mode by which an illegitimate child may be accorded the single right of inheritance from his father. This can be achieved under section 255, which sets forth in pertinent part that 'Every illegitimate child, whether born or conceived but unborn, in the event of his subsequent birth, Is an heir of his mother, and also of The person who, in writing, signed in the presence of a competent witness, acknowledges himself to be the father, 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 . . .' (emphasis added).

While paternity is a precondition of legitimation by adoption under Civil Code, section 230, and the judicial determination thereof is conclusive in such a proceeding (Adoption of Pierce (1971) 15 Cal.App.3d 244, 249, 93 Cal.Rptr. 171; Garcia v. Garcia (1957) 148 Cal.App.2d 147, 306 P.2d 80), it is to be observed that the establishment of paternity is neither a statutory requisite to obtain inheritance rights under section 255, nor can it serve as a substitute for the statutory mandate which requires in clear and unequivocal terms that the father acknowledge 'himself to be the father' in writing, signed in the presence of a competent witness. In light of the clear statutory language, appellant's contention that the judicial determination of paternity should be equated with the public Acknowledgment of the child, which by definition postulates a voluntary act on the part of the father, is contrary to law (cf. In re Estate of Pakarinen (1970) 287 Minn. 330, 178 N.W.2d 714, 715, app. Dism., 402 U.S. 903, 91 S.Ct. 1384, 28 L.Ed.2d 644), and cannot be accepted.

The foregoing discussion inevitably leads to the conclusion that the legal issue of whether or not appellant became Edward's heir does not turn on the judicial determination of paternity, but rather on the factual question whether or not he was acknowledged by Edward in the prescribed statutory fashion. To this question the record at hand gives a definite and unequivocal answer. It shows beyond any shred of doubt that Edward was declared Seane's father against his own will. He denied paternity in the action which was brought by Marietta to establish the parent-child relationship. Although he paid the child support ordered by the court, at no time did he admit that he was Seane's father. He never lived with, or visited the child, the child was never received into his family, and Edward never signed any writing acknowledging publicly or privately that he was the father of the child. In view of this record, we are compelled to hold that appellant has not been legitimated in any manner authorized by law and therefore failed to qualify as Edward's heir under section 255.

We next examine appellant's assertion that section 255 is unconstitutional because it discriminates between legitimate and illegitimate children and between the father and mother of illegitimate children. Although an equal protection challenge to California's laws of intestate succession has not been considered by any prior reported decision (see Steed v. Imperial Airlines (1974) 12 Cal.3d 115, 124, fn. 6, 115 Cal.Rptr. 329, 524 P.2d 801, there is abundant direct authority from other jurisdictions, including decisions of the United States Supreme Court, to persuade us that the constitutional attack must fail.

The constitutional precepts concerning impermissible, invidious discrimination have been promulgated and reiterated on numerous occasions. Article I, sections 11 and 21 of the California Constitution guarantee that all laws of general nature shall have a uniform operation, and that no citizen or class of citizens shall be granted privileges or immunities which, upon the same terms, shall not be granted to all citizens. The Fourteenth Amendment of the United States Constitution likewise mandates that no state may deny any person within its jurisdiction equal protection of the laws. However, as has been repeatedly pointed out, the Equal protection preserved by both state and federal Constitutions does not preclude the state from drawing any distinctions between different groups of individuals, but Requires only that persons similarly situated receive like treatment (In re King (1970) 3 Cal.3d 226, 232, 90 Cal.Rptr. 15, 474 P.2d 983; Purdy & Fitzpatrick v. State of California (1969) 71 Cal.2d 566, 578, 79 Cal.Rptr. 77, 456 P.2d 645). As has been recently phrased in Reed v. Reed (1971), 404 U.S. 71, 75--76, 92 S.Ct. 251, 253, 30 L.Ed.2d 225: 'The Equal Protection Clause . . . (denies) to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of Criteria wholly unrelated to the objective of that statute. A classification 'must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike. " (Emphasis added. See also: Eisenstadt v. Baird (1972) 405 U.S. 438, 446--447, 92 S.Ct. 1029, 31 L.Ed.2d 349; Weber v. Aetna Casualty & Surety Co. (1972) 406 U.S. 164, 172--173, 92 S.Ct. 1400, 31 L.Ed. 768.)

In the area regulating inheritance rights and interfamily relations the states, as a matter of tradition, have been permitted to make policy judgments; ⁴ and the broad scope of discretion accorded to them has been consistently observed. Thus, it has been held that the settlement and distribution of decedents' estates and the right to succeed thereto are peculiarly matters of state law (Harris v. Zion's Bank Co. (1943) 317 U.S. 447, 450, 63 S.Ct. 354, 87 L.Ed. 390; Strahan v. Strahan (W.D.La.1969) 304 F.Supp. 40, 42); and the right of inheritance, including the designation of heirs and the proportions which the several heirs shall receive, as well as the right of testamentary disposition are entirely within the control of the state Legislature and are subject only to the conditions prescribed by such body (Estate of Scott (1949) 90 Cal.App.2d 21, 23, 202 P.2d 357; see also: In re Wilmerding (1897) 117...