Hendrix' Estate, In re

Decision Date18 November 1971
Citation68 Misc.2d 439,326 N.Y.S.2d 646
PartiesIn re ESTATE of James M. HENDRIX. . Filed
CourtNew York Surrogate Court

Milton Jonas, Hempstead, guardian for infant Tamika Laurice james.

Beldock, Levine & Hoffman, New York City, for respondent.

Howard & Hagood, New York City (Edward O. Howard, New York City, of counsel), for petitioner.

Steingarten, Wedeen & Weiss, New York City, for creditors.

Brodsky and Silberstein, New York City, for claimant, 1968 Pop Music Festival, Inc.

J. Lee Rankin, Corp. Counsel of the City of New York, New York City.

Edward L. Milde, New York City, for U.S. Fidelity & Guaranty Co.

MORRIS AARONS, Surrogate.

The decedent, known as 'Jimi' Hendrix, was a 'rock' musical entertainer who experienced a meteoric rise to financial success. He died in 1970 without leaving a will and, upon the petition of his father, a non-relative was appointed administrator of his estate. The administrator later obtained permission to resign and an administrator De bonis non is now in office, again with the consent of the father.

At this time application is made by the decedent's father, who claims to be his son's sole distributee, for payment of a part of his distributive share of the estate. The petition alleges that the assets of the estate are in excess of $400,000 and are more than adequate to meet the obligations of the estate. The administrator De bonis non has consented to the advance payment sought by the father. Despite this concurrence, the petitioner requested that creditors of the estate be cited upon this application and this has been done. Certain creditors have appeared and opposition to the petition has been expressed by them.

The petitioner also cited and infant as the alleged daughter of the decedent. A guardian ad litem has appeared for the infant, and vigorously opposes the petition on the ground that the infant, and not the father is the sole distributee of the decedent. It is recognized by the guardian ad litem that the mother of the infant and the decedent were not married and that a filiation proceeding was never instituted. It is also alleged by the guardian ad litem that the decedent and the infant's mother resided together for some time prior to the child's birth but not thereafter and that an attorney representing the mother exerted efforts to obtain recognition of the child by decedent. At the time of the decedent's death he had not acknowledged paternity.

EPTL 4--1.2(a)(2) provides: 'An illegitimate child is the legitimate child of his father so that he and his issue inherit from his father if a court of competent jurisdiction has, during the lifetime of the father, made an order of filiation declaring paternity in a proceeding instituted during the pregnancy of the mother or within two years from the birth of the child.'

It is asserted on behalf of the infant that the quoted statute discriminates against illegitimates and violates the equal protection clause of the Fourteenth Amendment to the United States Constitution. It is averred that Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 is controlling.

While the infant is cited as an alleged distributee and the guardian ad litem contends that his ward, although illegitimate, is the decedent's sole distributee, there is no proof before the court that the infant is a child of the decedent. In order to establish this as a fact, it would be necessary to conduct a hearing equivalent to that required in a filiation proceeeding and, were paternity to be established at such hearing, the infant could succeed only if the above quoted statute were to be declared unconstitutional. The court considers it expedient to consider the constitutional question at this time. If the statute is constitutionally valid, paternity is irrelevant and the infant is without status to contest the petition. On the other hand, if the statute is unconstitutional and, as a consequence, the Constitution requires recognition of all illegitimates on an equal basis, the infant, upon establishing paternity, would be the decedent's sole distributee and the petition of the father then would fail.

Levy v. Louisiana (supra) was an action instituted on behalf of five illegitimate children to recover for the wrongful death of their mother. The holding in the state courts was that statutory basis for such an action by illegitimates was lacking. The contention that the illegitimates were denied equal protection of the law was rejected by the Louisiana courts. The United States Supreme Court reversed holding that, while a state has broad powers to make classifications, it may not draw a line which constitutes an invidious discrimination against a particular class. The court stated the problem to be whether the line drawn is a rational one. The court said (391 U.S. 72, 88 S.Ct. 1511):

'Legitimacy or illegitimacy of birth has no relation to the nature of the wrong allegedly inflicted on the mother. These children, though illegitimate, were dependent on her; she cared for them and nurtured them; they were indeed hers in the biological and in the spiritual sense; in her death they suffered wrong in the sense that any dependent would.

We conclude that it is invidious to discriminate against them when no action, conduct, or demeanor of theirs is possibly relevant to the harm that was done the mother.'

Glona v. American Guarantee and Liability Insurance Company, 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441, involves the reverse of the fact situation in Levy in that a mother of an illegitimate son was suing to recover for his wrongful death. That case also arose in Louisiana and, in line with the Levy case, the United States Supreme Court held that, since there was no basis for assuming that the cause of illegitimacy would be served if a mother is allowed to recover for the wrongful death of her illegitimate son, a bar to relief would be a denial of equal protection of the law. A dissenting opinion of Mr. Justice Harlan, joined in by Mr. Justice Black and Mr. Justice Stewart, characterized the Levy and Glona decisions as constitutional curiosities.

The Levy decision was followed in Schmoll v. Creecy, 54 N.J. 194, 254 A.2d 525, in an action by a legal wife and two illegitimate children to recover for the wrongful death of the decedent. In the course of its opinion, the Supreme Court of New Jersey said:

'There are of course differences between a wrongful death statute and an inheritance statute. A wrongful death statute itself determines who shall benefit, and the decedent has no voice in the matter. On the other hand, an inheritance statute embodies no more than the presumed intention of decedents who do not express their wish. It may therefore be urged that our inheritance statute does not generate a distinction between legitimate and illegitimate children but merely reflects the probable intent of individuals who are themselves constitutionally free to draw that line and who presumptively subscribe to the view of the statute by omitting to direct otherwise by will. Then, too, at least in the case of a male decedent, there is fear of spurious claimants, a problem more formidable in estate situations than in wrongful death actions in which the amount of the recovery will depend critically upon the amount of pecuniary injury shown.'

In the case at bar, we are not concerned with a wrongful death statute but with an inheritance statute and, for this reason, the foregoing cases are relevant only to the extent that some applicable rationale of decision can be found in them. Another important distinguishing feature arises from the fact that the Levy and Glona cases were...

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