Estate of Kenny

• Decision Date: 08 June 1982
• Citation: 114 Misc.2d 203,450 N.Y.S.2d 1003
• Parties: Proceeding for Letters of Administration, ESTATE OF Thomas F. KENNY, Deceased. Surrogate's Court, Kings County
• Court: New York Surrogate Court

Page 1003

450 N.Y.S.2d 1003

114 Misc.2d 203

Proceeding for Letters of Administration, ESTATE OF Thomas

F. KENNY, Deceased.

Surrogate's Court, Kings County.

June 8, 1982.

Solomon A. Koenigsberg, Brooklyn, and Jack Gottlieb, Brooklyn, for petitioner; Perry S. Reich, Brooklyn, on brief.

BERNARD M. BLOOM, Surrogate.

In this proceeding for letters of administration, petitioner has submitted voluminous and facially compelling evidence tending to prove that she is the natural, non-marital daughter of decedent, who died on May 26, 1981 survived also by two sisters and by issue of a predeceased brother.

The reciprocal rights of intestate distribution between children born out of wedlock vis-a-vis their fathers and paternal kindred are governed by EPTL § 4-1.2 where, as here, the parents did not later intermarry (see Dom.Rel.Law § 24). Petitioner concedes that there was neither an order of filiation entered during decedent's lifetime nor a witnessed acknowledgment of paternity filed with the State's putative father registry within sixty days of its making, either of which would, under the current form of respective subsections (a)(2)(A) and (a)(2)(B), legitimate a non-marital child for purposes of intestate succession. Consequently, for a predicate to her appointment as administratrix, she is forced to rely upon the third and final avenue, subsection (a)(2)(C), enacted on April 21, 1981, five weeks prior to his death. This most recent expedient, in contradistinction to the other two, is not dependent upon the existence of any specific document; it confers distributive status if "paternity has been established by clear and convincing evidence and the father of the child has openly and notoriously acknowledged the child as his own."

Before affording an evidentiary hearing to establish whether this bifurcated test is met in the instant case, it must be determined whether or not all prospect of petitioner's eventual success under (a)(2)(C) is foreclosed as a matter of law by the enactment's provision that "it shall take effect on the first day of September next succeeding the date on which it shall have become a law" (L. 1981, ch. 75, § 3).

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The question presented is not reducible to a simple choice between "prospective" versus "retrospective" application of the April 21, 1981 enactment, since as a practical matter, these terms import little divorced from a given procedural context. This is evident from the radical consequences of a finding that the liberalization in question was intended to be either "prospective" or "retroactive" in unadulterated form. Pure prospectivity would mean, in theory, not only that the amendment's effect would be confined to the intestate property of those who died on or after September 1, 1981, but also that the acts constituting the clear and convincing evidence of paternity and the open and notorious acknowledgment of the nonmarital child must occur on or after that date. Complete retrospective operation, on the other hand, would permit persons entitled to distributive status under this newest method of proof to present their claims regardless of when the decedent's death occurred and irrespective of a prior judicial determination of the identity of the distributees.

Spectres having such drastic and obviously unintended consequences may be dismissed offhandedly. In matters of descent and distribution, evidence of antecedent events underlying the ultimate fact is not precluded as long as the opportunity for proof itself is not (see, e.g., Dodin v. Dodin, 16 A.D. 42, 44 N.Y.S. 800 aff'd, 162 N.Y. 635, 57 N.E. 1108 see also McKinney's N.Y. Statutes § 56 ), while, on the other hand, a change in the class of statutory distributees is not to disturb the finality of final or intermediate judicial decrees (see, e.g., Matter of Germaine, 268 N.Y. 475, 198 N.E. 229 Estate of Fay, N.Y.L.J., July 8, 1980, p. 11, col. 4 ).

This said, the true focal question becomes whether or not, as has been held by Surrogate Laurino in Estate of Smith (N.Y.L.J., Feb. 8, 1982, p. 14, col. 5 ), the provision that the act "shall take effect" on September 1, 1981 is a directive that it be applied only with respect to those who died on or after that date. Such a result is eminently easy to apply. If, however, this court should differ with what may be termed, for purposes of this opinion, the "strictly prospective" construction given by my esteemed and learned colleague, the limits of the retrospective effect to be accorded to the liberalization shall remain to be defined for the guidance of prospective claimants and their counsel.

We return to the threshold question. The only substantive change in EPTL § 4-1.2 accomplished by the April 21, 1981 amendments other than the addition of subsection (a)(2)(C) was the deletion of the requirement that an order of filiation under (a)(2)(A) and the formal acknowledgment of paternity under (a)(2)(B) be respectively obtained or executed no later than ten years after the birth of the non-marital child. Both the actual text of the amended statute and its September 1, 1981 "effective" date were adopted in wholesale fashion from the proposal advanced by the Law Review Commission. None of the materials included in the bill jacket, whether detailing the Commission's purposes in recommending the amendments, or recording the favorable views of such bodies as the Department of Social Services and appropriate committees of the New York State Bar Association and of the Association of the Bar of the City of New York, define the meaning of the "effective" date or otherwise address the subject of the extent of the proposed legislation's operation directly. These various commentaries are, however, replete with adversions to the fact that subsection (a)(2)(C) of the proposed legislation would remedy the injustice inherent in the existing statutory scheme under which non-marital children through no fault of their own, but rather by dint of the failure of their fathers to file a formal acknowledgment of paternity or of other persons to obtain an order of filiation on their behalf, were denied distributive status, even when paternity and the fact of acknowledgment were not open to serious question. The dissenting opinion of Judge Cooke in Matter of Lalli, 43 N.Y.2d 65, 70, 400 N.Y.S.2d 761, 371 N.E.2d 481 in which a majority of the Court of Appeals, upheld in due course by the Supreme Court of the United States (Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 ) held that former EPTL § 4-2. was not unconstitutional insofar as it permitted an illegitimate to succeed to his father's intestate property only if an order of filiation had been entered during the father's lifetime, is quoted at length in the report of the Law Revision Commission:

The requirement of an order of filiation made during the lifetime of the father will, ipso facto, exclude a substantial category of illegitimate children from inheritance. If this exclusion resulted from a lack of proof it might be justifiable. But in reality not obtaining an order of filiation will often result simply from the fact that the putative father is supporting and acknowledging the children as his own. Or, it might well be and often is the product of carelessness or ignorance on the part of those who might institute a proceeding within the statutory limitation, for neither of which should a child suffer. Indeed, ordinarily the order will be obtained only where the natural father is not providing support. The children who are voluntarily supported, no matter how compelling the proof, will be absolutely barred if such an order is not obtained.

(43 N.Y.2d at 71-72, 400 N.Y.S.2d 761, 371 N.E.2d 481, quoted in the Law Revision Recommendation to the 1981 Legislature, reprinted in McKinney's 1981 Session Laws of New York, at 2302).

Insofar as the addition of subsection (a)(2)(C) was designed to correct imperfection in prior law, and insofar as it may be considered to consist of a procedural mechanism to enhance enjoyment of pre-existing substantive right, it tends to countervail the general rule of statutory construction that retrospective operation is disfavored (see Statutes §§ 35, 51-55). In addition, it has been observed that statutes affording inheritance rights to illegitimates, being in derogation of the common law, are remedial in purpose and deserving of a liberal construction. (Matter of Karenius, 170 Misc. 652, 11 N.Y.S.2d 44 but see Bell v. Terry & Tench Co., 177 A.D. 123, 163 N.Y.S. 733 ) However it has often been said that the Legislature may not make a law retroactive so as to impair vested rights and that the area of descent and distribution of estates, in particular, is governed by the law in effect upon the date of the decedent's death. (See, e.g., People v. Powers, 147 N.Y. 104, 41 N.E. 432 Dodin v. Dodin, supra; Estate of Luber, 109 Misc.2d 1065, 441 N.Y.S.2d 612 Estate of Fay, supra; Matter of Rodriguez, 100 Misc.2d 983, 420 N.Y.S.2d 349 Ferrie v. Public Administrator, 3 Brad. 249 see also Statutes § 56). Moreover, since a law becomes effective twenty days after its approval unless a different time is prescribed therein (Legis.Law § 43), there is authority to the effect that postponement of its effective date is some evidence that the Legislature did not intend it to be retroactive (In re Kaufman's Estate, 158 Misc. 102, 285 N.Y.S. 347 effective date], cited with approval in Mulligan v. Murphy, 14 N.Y.2d 223, 250 N.Y.S.2d 412, 199 N.E.2d 496 ).

Quite obviously, subsection (a)(2)(C) does not lend itself to facile dispositive categorization. Under these circumstances, the flexible, pragmatic approach to retroactivity analysis employed by the Court of Appeals in Becker v. Huss Co., 43 N.Y.2d 527, 402 N.Y.S.2d 980, 373 N.E.2d 1205 where an analogous instance of the conflict of canons of statutory construction was encountered, and evident as well in its recent decisions in related contexts (see, e.g., ...