Everage v. Gibson

• Decision Date: 01 June 1979
• Citation: 372 So.2d 829
• Parties: Phyllis EVERAGE v. Mattie Lee GIBSON et al. 77-656.
• Court: Alabama Supreme Court

Page 829

372 So.2d 829

Phyllis EVERAGE v. Mattie Lee GIBSON et al.

77-656.

Supreme Court of Alabama.

June 1, 1979.

Rehearing Denied July 6, 1979.

Judy W. Hammond and William M. Hammond, Troy, for appellant.

Robert W. Barr of Gibson & Barr, Troy, for appellees Willie Anne Golden, Billy Lamar Gibson and for Wayne Gibson and Billy Lamar Gibson as guardians of Thomas Marshall Gibson.

Thad Yancey, Jr., of Cervera & Yancey, Troy, Guardian ad Litem for Thomas Marshall Gibson, appellee.

Keith Watkins, Troy, for appellee, Troy Bank & Trust Co.

BLOODWORTH, Justice.

Intervenor Phyllis Everage appeals from judgment that she has no interest in the real estate of Paul Lamar Gibson, deceased, and is not entitled to any proceeds from the sale of the lands for division. We affirm.

Paul Lamar Gibson died intestate on June 18, 1972, survived by his widow, Mattie Lee Gibson, and four children, William Paul Gibson, Willie Anne Gibson Golden, Billy Lamar Gibson, and Thomas Marshall Gibson. Appellant Phyllis Everage, born March 23, 1932, also claims to be the daughter and eldest child of Paul Lamar Gibson, deceased.

On June 28, 1977, Mattie Lee Gibson and Billy Lamar Gibson filed a complaint to sell land for division, naming as defendants the other three Gibson children. The real estate sought to be sold included 507 acres owned by Paul Lamar Gibson at his death. J. P. Lester Sawmill, Inc., intervened, claiming an interest in the timber on the land. A sale was ordered upon a stipulation of the parties. After confirmation of the sale, but before distribution of the proceeds, Phyllis Everage intervened, alleging that she was an illegitimate daughter of Paul Lamar Gibson, deceased, and claiming a child's share of the real and personal property of the decedent. Ms. Everage subsequently filed a motion to vacate the judgment of sale because she, as a joint owner of the lands, was an indispensable party and had not been joined in the suit.

The evidence was in conflict on the issue of Ms. Everage's relationship to the decedent. After a hearing ore tenus, the trial judge ruled that she had no interest in the real estate of Paul Lamar Gibson, deceased. The judgment reads, in pertinent part, as follows:

"The rules of property pertaining to descent of property by illegitimate children has been settled by judicial decision and legislative enactment in Alabama since 1824. People have entered into transactions upon reliance of those settled rules of property. The law of Alabama and rights of Phyllis Everage to the subject property became fixed with the death of Paul Lamar Gibson.

"Whether Trimble v. Gordon is apt authority is not decided. Retroactive application of the rule of Trimble to the status between the parties would have a detrimental effect on the administration of justice and property rights in Alabama. The court adheres to those settled decisions of Alabama pertaining to descent of property by illegitimate children and leaves corrective measures, if any, to the legislature.

"IT IS, THEREFORE, ORDERED AND ADJUDGED BY THE COURT AS FOLLOWS:

"1. That Phyllis Everage does not have any interest in the real estate of Paul Lamar Gibson and is not entitled to any proceeds of the sale of lands for division among joint owners held April 14, 1978, and her claims for relief in the original and amended complaint, separately and severally, are denied.

"2. That Phyllis Everage is not entitled to vacate the judgment of sale and order of confirmation. Motion to vacate is denied."

The issue on this appeal, raised at trial by amendment to appellant's intervention complaint, is whether the system relating to intestate succession in Alabama ¹ violates equal protection of the law guaranteed by the fourteenth amendment to the United States Constitution and §§ 1 and 35 of the Alabama Constitution, by invidiously discriminating on the basis of illegitimacy. ² We find no equal protection violation with respect to either the United States or Alabama Constitutions.

At the outset, we note that the trial court made no finding that appellant was or was not biologically related to Paul Lamar Gibson, deceased. The appellees argue that a finding that she is not the decedent's daughter should be presumed from the judgment, and that she therefore may not attack the constitutionality of the statutes of descent and distribution on this appeal because of lack of "standing."

Our rule is that, where the trial judge does not make express findings of fact, this Court will assume that he found facts necessary to support his judgment, unless the finding would be clearly erroneous and against the great weight and preponderance of the evidence. Lipscomb v. Tucker, 294 Ala. 246, 314 So.2d 840 (1975). It is apparent from the wording of the judgment quoted above that a finding that appellant was not biologically related to the decedent is unnecessary to support the result reached. We need not presume that the trial judge made such a finding, and, therefore, appellant is not precluded on this ground from asserting her constitutional argument because of lack of "standing." ³

Appellant contends, on this appeal, that our review of this case is controlled by Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977). We disagree. To the contrary, we find that our statutory system is more akin to the New York statute held constitutional in Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978).

In Trimble, the United States Supreme Court declared unconstitutional an Illinois statute which provided that an illegitimate child could inherit from his mother, but could inherit from his father by intestate succession Only if the child's parents married and the father acknowledged the child as his own. The father in Trimble had neither married the mother nor acknowledged the child as his daughter, but he had been found to be her father in a paternity suit. The Illinois courts nevertheless excluded the child as a distributee of her father's estate, based upon the statute. The United States Supreme Court reversed, holding that the statute discriminated against illegitimate children in violation of the equal protection clause of the fourteenth amendment. The classification was found not to be substantially related to a permissible state interest. Because the statute unnecessarily restricted its operation to circumstances where both acknowledgment and marriage of the parents existed, it was constitutionally flawed and ignored "some significant categories of illegitimate children of intestate men (whose) inheritance rights can be recognized without jeopardizing the orderly settlement of estates or the dependability of titles to property passing under intestacy laws." 430 U.S. at 771, 97 S.Ct. at 1465, 52 L.Ed.2d at 40.

Subsequently, in Lalli, the Court concluded that a New York intestate succession statute did not violate the equal protection clause of the fourteenth amendment. That statute provides that an illegitimate child may not inherit from his father unless the paternity of the father is declared by a court during the father's lifetime. ⁴ The procedural requirements placed on illegitimate children by this statute were found to bear a reasonable relationship to the substantial state interest of providing for the just and orderly disposition of intestate property.

As Mr. Justice Powell, writing the plurality decision for the Court in Lalli, so clearly points out, "The primary state goal underlying the challenged aspects of § 4-1.2 is to provide for the just and orderly disposition of property at death. We long have recognized that this is an area with which the States have an interest of considerable magnitude." He continues, "This interest is directly implicated in paternal inheritance by illegitimate children because of the peculiar problems of proof that are involved. Establishing maternity is seldom difficult." On the other hand, "(p)roof of paternity, by contrast, frequently is difficult when the father is not part of the formal family unit. 'The putative father often goes his way unconscious of the birth of a child. Even if conscious, he is very often totally unconcerned because of the absence of any ties to the mother. Indeed the mother may not know Who is responsible for her pregnancy.' " Mr. Justice Powell alludes to the difficulties of serving an illegitimate with process in the course of probating a will and poses this query from the New York case of In re Flemm, 85 Misc.2d 855, 859, 381 N.Y.S.2d 573, 575-76 (Sur.Ct.1975): " 'How does one cite and serve an illegitimate of whose existence neither family nor personal representative may be aware? ' " Moreover, " 'And of greatest concern, how (to) achieve finality of decree in Any estate when there always exists the possibility however remote of a secret illegitimate lurking in the buried past of a parent or an ancestor of a class of beneficiaries? ' " Mr. Justice Powell points out that the accurate resolution of claims to paternity is enhanced "by placing paternity disputes in a judicial forum during the lifetime of the father." Requiring the order to be issued during the father's lifetime, he suggests, "permits a man to defend his reputation against 'unjust accusations in paternity claims,' " and, therefore, "(f)raudulent assertions of paternity will be much less likely to succeed . . . ." Lalli, supra, 439 U.S. at 268-271, 99 S.Ct. at 524-26, 58 L.Ed.2d at 511-13.

The provisions setting out the order of intestate succession to real estate in Alabama are found in Code 1975, § 43-3-1. Real estate descends first to the children of the intestate, or their descendants. "Children," as used in this statute, has been held to mean legitimate children. Williams v. Witherspoon, 171 Ala. 559, 55 So. 132 (1911). Section 43-3-7 provides that every illegitimate child is considered to be the heir of his mother. The effect of this section is to make an illegitimate child the "heir of his mother as if he were...