Estate of Greenwood, In re

• Decision Date: 11 March 1991
• Docket Number: No. 653,653
• Citation: 587 A.2d 749,402 Pa.Super. 536
• Parties: In re ESTATE OF Gary P. GREENWOOD, Deceased. Appeal of the ESTATE OF Gary P. GREENWOOD by Lois A. GREENWOOD, Administratrix. Pitts. 1990.
• Court: Pennsylvania Superior Court

Page 749

587 A.2d 749

402 Pa.Super. 536

In re ESTATE OF Gary P. GREENWOOD, Deceased Appeal of the ESTATE OF Gary P. GREENWOOD by Lois A GREENWOOD, Administratrix.

No. 653 Pitts. 1990.

Superior Court of Pennsylvania.

Argued Dec. 4, 1990.

Filed March 11, 1991.

James Hook, Waynesburg, for appellant.

Linda Chambers, Washington, for participating party.

Before ROWLEY, POPOVICH and MONTGOMERY, JJ.

POPOVICH, Judge:

This case concerns an order entered on March 23, 1990, in the Court of Common Pleas of Greene County, Orphans' Court Division, directing that blood samples of the decedent Gary P. Greenwood be made available to the Greene County Domestic Relations Division "for comparison testing". The order is being appealed by Lois A. Greenwood, Administratrix of the Estate of Gary P. Greenwood. We affirm.

The record discloses that a Petition For Citation was filed by Lisa Joann Sowden alleging that she was the illegitimate daughter of the decedent Gary P. Greenwood and one Susan Jane Sowden.

Lois A. Greenwood, having been granted Letters and named the administratrix of her late husband's estate on August 25, 1989, was notified that the petitioner intended to claim an intestate share of the estate as the decedent's illegitimate child. Lois A. Greenwood, despite the petitioner's submission of a birth certificate and affidavits of the decedent's family and friends attesting to the decedent's "acknowledg[ment] ... that he was the father of [p]etitioner", indicated that "the only proof of paternity she w[ould] accept [wa]s proof through blood testing." Paragraphs 6, 7 & 8. However, when the petitioner discovered that the Allegheny County Coroner was in possession of blood and tissue samples of the decedent, "due to a pending investigation into the cause of decedent's death", Lois A. Greenwood refused to authorize release of the samples to test for parentage. Id. at 9 & 10.

Based on the petition, the Orphans' Court issued a citation to show cause why Ms. Greenwood should not be directed to release the samples for the purpose of paternity-testing, and a hearing was set to assess arguments on the issues raised. Subsequent thereto, in answer, Lois A. Greenwood denied the petitioner's illegitimate status, averred the bar of the statute of limitations under 23 Pa.C.S.A. § 4343(b) for the petitioner's failure to take any action to establish paternity within eighteen years of the date of her birth, and noncompliance with any of 20 Pa.C.S.A. § 2107's conditions precedent to establishing her right to inherit even though she was born out of wedlock.

Additionally, in a brief submitted in support of her request for court-ordered testing, Lisa Joann Sowden recounted how the administratrix was cooperative, initially, in an effort to have the decedent's blood and tissue tested to resolve the paternity question but, thereafter, did not respond to requests to obtain the samples from the coroner's office of Allegheny County.

In the argument portion of the petitioner's brief, it was urged that, albeit the petitioner would be presenting the testimony of her mother, friends and family of the decedent (to whom had been "acknowledged" by the decedent) on the question of paternity, she wanted the test results as "additional 'clear and convincing evidence' " of her status as an heir. See 20 Pa.C.S.A. § 2107. Further, the inapplicability of 23 Pa.C.S.A. § 4343(b) was contended because of the absence of a "support" action, while the relevancy of 42 Pa.C.S.A. §§ 6131-6137 ("Blood Tests to Determine Paternity") was discussed.

Thereafter, on February 26, 1990, the Orphans' Court heard oral argument from counsel for both sides, and, after taking the case and briefs under advisement, entered an order directing the administratrix to authorize release of the decedent's blood sample for genetic testing. This appeal followed, and, from our examination of the question posed, is not interlocutory. See Commonwealth ex rel. Weston v. Weston, 201 Pa.Super. 554, 193 A.2d 782 (1963), wherein a motion to quash an appeal from an order for blood testing to determine paternity, pursuant to 28 P.S. § 307.1 et seq. (known as the Uniform Act on Blood Tests to Determine Paternity and reenacted at 42 Pa.C.S.A. § 6131 et seq.) was denied. See also Myers v. Travelers Insurance Co., 353 Pa. 523, 46 A.2d 224 (1946), cited in Weston, and Christianson v. Ely, 390 Pa.Super. 398, 568 A.2d 961 (1990), permitting an appeal from orders requiring a physical examination and blood testing, respectively.

The sole issue proffered for our consideration, which all parties and the court below agree is one of first impression, is:

CAN THE LOWER COURT ORDER THAT A BLOOD TEST BE [PERFORMED, AT THE REQUEST OF AN ILLEGITIMATE CHILD,] AFTER THE DEATH OF AN ALLEGED FATHER?

Appellant's Brief at 2 (Bracketed language added).

Before addressing the merits of the issue posed, we deem an historical perspective is appropriate to appreciate our ruling. Accordingly, at the outset, we observe that the law involving the right of an illegitimate child to inherit through intestate succession has gone through a metamorphosis over the years. For example, at common law, an illegitimate child, who had not been legitimated was filius nullius (the child of no one) and incapable of inheriting from anyone. See Trimble v. Gordon, 430 U.S. 762, 768, 97 S.Ct. 1459, 1464, 52 L.Ed.2d 31 (1977); Stone v. Gulf American Fire and Casualty Co., 554 So.2d 346, 363 (Ala.1989) (quoting 1 Wendell's Blackstone, 459).

In Pennsylvania, prior to November 26, 1978, Section 2107 of the Probate, Estates and Fiduciaries Code of June 30, 1972, P.L. 508, No. 164, § 2, 20 Pa.C.S.A. § 2107, provided that a person born out of wedlock ¹ was to be "considered the child of his mother but not his father." Estate of Hoffman, 320 Pa.Super. 113, 466 A.2d 1087, 1089 (1983). On November 26, 1978, Section 2107 of the Probate, Estates and Fiduciaries Code was amended to allow illegitimate children to inherit through or from their fathers as well as their mothers; ² to-wit:

(c) Child of father--For purposes of descent by, from and through a person born out of wedlock, he shall be considered the child of his father when the identity of the father has been determined in any of the following ways:

(1) If the parents of a child born out of wedlock shall have married each other.

(2) If during the lifetime of the child, the father openly holds out the child to be his and receives the child into his home, or openly holds the child out to be his and provides support for the child which shall be determined by clear and convincing evidence.

(3) If there is clear and convincing evidence that the man was the father of the child, which may include a prior court determination of paternity.

Act 1978, November 26, P.L. 1269, No. 303, § 1, imd. effective. This amendment was enacted to conform with the United States Supreme Court decision in Trimble, supra, wherein the Court held that a classification based upon illegitimacy was required to bear a rational relationship to a legitimate state interest to be constitutional. See Estate of Hoffman, supra; Scott Estate, 23 Pa.D. & C.3d 236, 237-38 (Dauphin Cty., 1982). The present version of Section 2107 has been held not to violate the equal protection clause of the Fourteenth Amendment. Id.

No one disputes that Paragraphs (1) and (2) of Clause (c) of Section 2107 are not applicable to the case at bar. Thus, our inquiry is one of whether the court below had the authority to issue the order for "blood testing" so as to afford the appellee the opportunity to prove by "clear and convincing" evidence that the decedent was her father. 20 Pa.C.S.A. § 2107(c)(3).

On this point, the court below interpreted Section 2107(c)(3), in conjunction with 20 Pa.C.S.A. § 3538 (subjecting a child born out of wedlock to the same time restraints as applied to other heirs or claimants of an estate) and 42 Pa.C.S.A. § 6133 (permitting court to order the mother, child and alleged father to submit to blood tests where parentage is a relevant fact), to authorize the testing of the decedent's blood samples "for comparison testing" with regard to the appellee's parentage.

The appellant, taking a position contrary to the court below, argues that Lisa Joann Sowden, having attained the age of eighteen, is barred by the eighteen-year statute of limitations under 23 Pa.C.S.A. § 4343(b) from demanding testing of the decedent's blood. We find the rationale of the appellant flawed.

First, the eighteen-year statute of limitations under Section 4343(b) is inapposite to the case at bar and cannot be made applicable to Chapter 21 of the intestate succession statute.

Section 4343(b)'s eighteen-year statute of limitations is found in Subchapter B (titled: "Support"), under the all inclusive Chapter 43 captioned: "Support Matters Generally", and reads in pertinent part:

§ 4343. Paternity.

(a) Determination.--Where the paternity of a child born out of wedlock is disputed, the determination of paternity shall be made by the court in a civil action without a jury unless either party demands trial by jury. The burden of proof shall be by a preponderance of the evidence.

(b) Limitation of actions.--

(1) An action or proceeding under this chapter to establish the paternity of a child born out of wedlock must be commenced within 18 years of the date of birth of the child.

As amended 1989, December 20, P.L. 654, No. 81, § 1, imd. effective, 23 Pa.C.S.A. § 4343(a) & (b) (Supp.1990-91) (Emphasis added).

When Chapter 43 is reviewed in its entirety, giving it a common sense interpretation, the thrust of the language is geared toward resolving the question attendant to "a duty to support." Id. at § 4301(a) et seq. Instantly, there is no intent on the part of the appellee to seek the recoupment of any "support" due her during minority. Rather, the main concern of the appellee is attempting to prove "[h]er right to inherit ...; paternity is not...