Flemm's Will, In re

• Decision Date: 03 April 1975
• Citation: 381 N.Y.S.2d 573,85 Misc.2d 855
• Parties: In re Probate Proceeding WILL and Codicils of John J. FLEMM, Deceased. Surrogate's Court, Kings County
• Court: New York Surrogate Court

Page 573

381 N.Y.S.2d 573

85 Misc.2d 855

In re Probate Proceeding WILL and Codicils of John J. FLEMM, Deceased.

Surrogate's Court, Kings County.

April 3, 1975.

Harris & Post, New York City, for petitioning nominated coexecutors.

Jerald Rosenbloom, Brooklyn, guardian ad litem for infant grandchildren.

Griggs, Baldwin & Baldwin, New York City, for respondent Robert J. Thompson.

Kornblum & Shlefstein, Brooklyn, for respondent grandchildren.

Michael I. Rackman, New York City, guardian ad litem for decedent's grandchild.

NATHAN R. SOBEL, Surrogate.

At issue in this proceeding is the right of an illegitimate child to inherit from his putative father.

The father's will has been offered for probate. It makes no disposition or even mention of the illegitimate child. Apart from a disposition to a charitable foundation, the entire residue is divided equally among testator's two ligitimate children.

Issue is joined by the motion of the preliminary executors to strike a notice of appearance filed by the illegitimate in the probate proceeding.

For the purpose of this motion and based on the underlying support, it will be assumed by the Court that the testator is indeed the father of the illegitimate, the latter having been born to him and the natural mother in a Brooklyn hospital on November 23, 1934. It is however also established by the proof that the father and mother of the illegitimate were never married: also that no order of filiation was ever made during the lifetime of the father in the courts of this or any other jurisdiction.

This is therefore a Post-mortem (i.e. after the death of the father) effort by the illegitimate son to establish paternity and his status as a distributee of his father. For, unless he is a distributee he does not benefit if the will denied probate; he is not a person whose interests are 'adversely affected' by probate of the will (SCPA 1410) and he has no standing to contest probate.

This Court grants the motion to strike the appearance of the illegitimate in the pending proceedings. It is determined that he is not a distributee. Our statutes do not give to an illegitimate an unconditional right to inherit from his putative father. In order to inherit, our statutes require as an absolute condition that an order of filiation shall have been entered During the lifetime of the father in a court of competent jurisdiction of this or another state. New York, unlike several other states, has refused to permit any post-mortem determination of paternity however strong the proof.

Law review articles and court decisions, when injustice is apparent, have deplored the disabilities which affect illegitimates in this and other areas of law. These have on occasion stirred legislative action--only occasionally successful but most often not. It may be helpful to discuss in particular the problem of intestate inheritance by illegitimates from the experience of this the busiest Court in the State measured by the number of intestate estates which traffic daily through this Court.

It is appropriate first to observe that most of the legal disabilities, other than intestate succession, which affect illegitimates have been removed to a substantial extent by recent decision of the United States Supreme Court and of our own Courts. (Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (right to share in wrongful death recoveries); Glona v. American Guaranty & Liability Ins. Co., 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441 (ditto, wrongful death recoveries); Willis v. Prudential Insurance Co., 405 U.S. 318, 92 S.Ct. 1257, 31 L.Ed.2d 273 (right to share in insurance policies); Stanley v. Illinois, 405 U.S 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (putative father's right to notice and custody); Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (right to share in Workmen's Compensation awards); Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (right to compel support from putative father); Richardson v. Davis, 409 U.S. 1069, 93 S.Ct. 678, 34 L.Ed.2d 659 (right to social security benefits); New Jersey Welfare Rights Org. v. Cahill, 411 U.S. 619, 93 S.Ct. 1700, 36 L.Ed.2d 543 (right to share in wholly State supported welfare program); Jiminez v. Weinberger, 417 U.S. 628, 94 S.Ct. 2496, 41 L.Ed.2d 363 (right to share in social security disability benefits); Holden v. Alexander, 39 A.D.2d 476, 336 N.Y.S.2d 649 and many cases cited (wrongful death benefits)).

No empirical study has been or probably could be made of the number of illegitimates deprived by law of the right to intestate succession. But judging by the infrequency of 'claims' (such as in the instant case) it is possible to conclude the distribution of wrongful death proceeds, workmen's compensation and social security benefits far exceed in economic value to illegitimates, the economic benefits which might flow from the right to intestate succession. The estates in which 'claims' are filed are invariably small--most often administered by the Public Administrator--and the share of the illegitimate smaller.

In Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 208, the Supreme Court held that the choices reflected by the intestate succession statutes of a State, are within the power of the legislature of each State to make. Therefore State statutes which deny to illegitimate children the same right to inherit as are allowed legitimate children, do not violate the Equal Protection Clause of the Fourteenth Amendment. Thus Labine effectively forecloses any inquiry by courts as to the constitutionality of its State's succession statutes governing the rights of illegitimates. It leaves the legislature of each State free to impose statutory restrictions, strict or liberal, (or indeed none at all as in Arizona and Oregon) on the rights of illegitimates to inherit.

New York has made such a choice. It was made by the Legislature on study and recommendation of the Bennett Commission on Estates (Fourth Report (N.Y.Legis.Doc.1965) No. 19, pp. 233--271). The existing statute EPTL 4--1.2 effective September 1, 1966 is the result. (See L.1965 c. 958 enacting Decedent Estate Law § 83--a, eff. 3/1/66).

The statute was the result of a studied and deliberate decision by the members of the Bennett Commission, all experienced Surrogates or estate practitioners. Its report emphasized two major concerns, one practical and the other procedural.

As a practical matter permitting an illegitimate child unconditionally to inherit from a parent can cut down the distributive share of a lawful surviving spouse having no ties to the illegitimate child. It will in every case reduce the distributive share of legitimate children, if any. It will totally defeat the succession rights of parents and siblings of the intestate. Concerned and willing to extend the rights of illegitimat to inherit, these practical problems judging from the debates disturbed the Commission members very little.

The procedural problems however were of real concern to the experienced members of the Commission. An illegitimate, if made an unconditional distributee in intestacy, must be served with process in the estate of his parent or if he is a distribute in the estate of the kindred of a parent. (SCPA 1003) And, in probating the will of his parent (though not named a beneficiary) or in probating the will of any person who makes a class disposition to 'issue' of such parent, the illegitimate must be served with process. (SCPA 1403) How does one cite and serve an illegitimate of whose existence neither family nor personal representative may be aware? And of greatest concern, how 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? Finality in decree is essential in the Surrogates' Courts since title to real property passes under such decree. Our procedural statutes and the Due Process Clause mandate notice and opportunity to be heard to all necessary parties. Given the right to intestate succession, All illegitimates must be served with process. This would be no real problem with respect to those few estates where there are 'known' illegitimates. But it presents an almost insuperable burden as regards 'unknown' illegitimates. The point made in the Commission discussions was that instead of affecting only a few estates, procedural problems would be created for many--some members suggested a majority--of estates.

I The Right of the Illegitimate Child to Inherit From His Mother

The statute ultimately enacted upon the recommendation of the Bennett Commission gave to the illegitimate child an absolute right to inherit from his mother and her kindred and they from him. In a sense our statutes governing the descent and distribution of property in intestacy (EPTL 4--1.1) are 'statutory wills', the property passing according to the presumed intent of the intestate. With respect to the practical concerns, the Commission based its recommendation on the rational presumption that an illegitimate child usually stands as close in the affection and concern of the mother as do her legitimate children.

As concerned the procedural problems discussed, the birth to the mother is a recorded and registered event usually taking place in the presence of others. In most cases the child will remain with and be reared by the mother. That the illegitimate is the child of the mother is never difficult of proof. Upon the mother's death, her family and the personal representative of her estate will be aware of the existence of the illegitimate child as necessary party in any estate proceeding. What has been said of the relationship of mother with the illegitimate child is equally true of the mother's kindred.

Rationally and reasonably with respect to the mother-child relationship, the statute enacted provided--

EPTL 4--1.2

(a)...