Karger's Estate, In re

• Decision Date: 21 November 1958
• Docket Number: No. 37522,37522
• Parties: In re ESTATE of Gerhart H. KARGER, deceased. Thoms KOEP, guardian of Gerald Edward Karger, a minor, Appellant, v. Clara KARGER and H. J. Westlund, Admir of Estate of Gerhart H. Karger, Respondents.
• Court: Minnesota Supreme Court

Page 137

93 N.W.2d 137

253 Minn. 542

In re ESTATE of Gerhart H. KARGER, deceased.

Thoms KOEP, guardian of Gerald Edward Karger, a minor, Appellant, v. Clara KARGER and H. J. Westlund, Admir of Estate of Gerhart

H. Karger, Respondents.

No. 37522.

Supreme Court of Minnesota.

Nov. 21, 1958.

Syllabus by the Court

1. The words 'attesting witness' as used in M.S.A. § 525.172 mean a competent witness who was present at the signing and who, at the request of the declarant, subscribed the writing as such witness.

2. Although the declaration in writing which gives an illegitimate child a right of inheritance from a putative father need not be in any particular form, it must be subscribed to by an attesting witness and must contain an express acknowledgment by the putative father that he is the father of the child.

3. It has long been the holding of this jurisdiction that § 525.172 absolutely limits the instances in which an illegitimate child may inherit from a putative father who dies intestate.

4. Section 257.23, relating to illegitimacy proceedings against the father, is one in law for the particular purpose of requiring the father to indemnify society against the expense of supporting and educating the child and does not confer any right of inheritance.

5. An adjudication of paternity does not of itself create any right of inheritance by a child from his putative father and such adjudication is not the equivalent of a written declaration of paternity as prescribed in § 525.172.

6. By the weight of authority, when the word 'child' or 'children' is used in this statute, it means a legitimate child or children, unless the statutory language reflects an intent to the contrary.

Charles A. Lund, Vining, Johanson, Winter & Lundquist, Gunder Gunhus, Wheaton, for appellant.

Philip R. Monson, Fergus Falls, for respondents.

MATSON, Justice.

Appeal from a judgment construing M.S.A. § 525.172 and declaring male decedent's mother to be his sole heir to the exclusion of an illegitimate son whose paternity had theretofore been adjudicated under § 257.23.

The sole issue is whether an illegitimate child may inherit from one adjudged in a paternity proceeding under § 257.23 to be his father when such judicially declared father dies without having declared in writing, before a competent attesting witness, that he is the father, as required by § 525.172, which provides:

'An illegitimate child shall inherit from his mother the same as if born in lawful wedlock, and also from the person who In writing and before a competent attesting witness shall have declared himself to be his father; but such child shall not inherit from the kindred of either parent by right of representation.' (Italics supplied.)

The facts are undisputed. Decedent, Gerhart H. Karger, died intestate on June 6, 1957, without ever having been married. The only parent surviving him was his mother, a respondent herein. Section 525.16(4)(c) provides that a parent may inherit only in the event that decedent leaves no surviving issue or spouse.

In 1937, appellant, Gerald Karger, was born an illegitimate son to Mary Koep. In paternity proceedings (§§ 257.18 to 257.23) decedent, after a trial by jury, was adjudged to be the father of appellant under § 257.23, which reads:

'* * * If he is found guilty, or admits the truth of the accusation, he shall be adjudged to be the father of such child and Thenceforth shall be subject to all the obligations for the care, maintenance and education of such child, and to all the penalties for failure to perform the same, which are or shall be imposed by law upon the father of a legitimate child of like age and capacity.' (Italics supplied.)

Upon decedent's death, decedent's mother and appellant each petitioned the probate court for letters of administration. The probate court granted the mother's petition, and appellant appealed to the district court, which declared the mother to be the sole heir at law of the intestate, to the exclusion of appellant, on the ground that the decedent had not, in writing and before a competent attesting witness, declared himself to be appellant's father.

1--2. Section 525.172 has been construed by this court on several previous occasions. Prior to the amendment of 1905 ¹ (R.L.1905, § 3650), an illegitimate child could inherit from the father only if the latter had in writing, before a competent witness, acknowledged that he was the child's father. ² The 1905 amendment added one significant requirement to the statute as a prerequisite to the creation of a child's right to inherit from a putative father; namely, that the competent witness to the writing must be an Attesting witness. The words 'attesting witness,' as used in this statute, mean a competent witness who was present at the signing and who, at the request of the declarant, subscribed the writing as such witness. ³ Although the declaration in writing which gives an illegitimate child a right of inheritance from a putative father need not be in any particular form, it must be subscribed to by an attesting witness and must contain an express acknowledgment by the putative father that he is the father of the child. ⁴

3. Appellant asserts that the statutory words 'An illegitimate child shall inherit * * * from the person who in writing * * * shall have declared himself to be his father,' although giving a right of inheritance in that specific case, do not preclude it in other situations where, as here, the identity of the father has been judicially determined under § 257.23. Had the legislature intended to preclude inheritance in all cases where the father has not expressly acknowledged paternity in writing before an attesting witness, appellant contends that it would then have expressed such intent by using the word 'only' to qualify the word 'inherit,' as applied to a putative father. Contrary to appellant's view, it has long been the holding of this jurisdiction that the word 'shall' as used in § 525.172 absolutely limits the instances in which an illegitimate child may inherit from a putative father who dies intestate. In re Estate of Snethun, supra; Reilly v. Shapiro, supra. It is also significant that other sections of our probate code employ the term 'shall' in like manner. ⁵

4. The Snethun and Reilly cases involve facts analogous to this appeal. In the Snethun case, a decree in proceedings in Norway had apparently declared decedent the father of appellant and adjudged him liable for part of his support.

In the Reilly case, decedent pleaded guilty in writing in Wisconsin paternity proceedings, and judgment was entered rendering him liable for lying-in expenses of the mother and $15 per month over a 16-year period for the child's support. This court, in extending full faith and credit to the Wisconsin judgment and thus accepting it at its full face value, stated (196 Minn. 378, 265 N.W. 285):

'It is conceded, as was found by the trial court, that when Reilly made his plea of guilty he did so in open court and in the presence of the prosecuting attorney, the judge of the court, the reporter, and deputy clerk, including as well Clara Hintz, present intervenor. No one signed the plea of guilty as a witness, nor did Reilly request that anyone so witness the plea.'

Upon decedent's death, the mother intervened in the wrongful-death action on behalf of her child, alleging that decedent's act of signing the written plea of guilty, in the presence of the court and its officers, constituted sufficient compliance with § 525.172.

In both the Snethun and Reilly cases, the illegitimate child sought to inherit from the father's estate and in each case there was no doubt that the decedent did father the illegitimate child. In each case, however, this court found a fatal noncompliance with § 525.172 and rendered judgment against the illegitimate child, Notwithstanding the prior adjudication of paternity. Appellant attempts to distinguish these cases on the ground that no construction of § 257.23 was involved. In the Reilly case, however, Mr. Justice Olson very clearly pointed out the distinction between paternity actions and inheritance (196 Minn. 381, 265 N.W. 287):

'Our statute relating to illegitimacy proceedings against the father is 'one in law for a particular purpose, viz., for the indemnity of society against the expense of the support of the child.' State v. Nestaval, 72 Minn. 415, 416, 75 N.W. 725. Before such child can inherit it must be shown that the father 'in writing, before a competent attesting witness, shall have declared himself to be his father."

5. Aside from the fact that the Reilly case is particularly in point as determinative that an adjudication of paternity does not of itself create any right of inheritance by a child from his putative father and further that such adjudication is not the equivalent of a written declaration of paternity as prescribed in § 525.172, this appeal must, in any event, be resolved against appellant by reason of the express wording of § 257.23. Appellant alleges that an adjudication of paternity under § 257.23 subjects the father to all obligations imposed upon a father of a legitimate child and that therefore this section is inconsistent with § 525.172. He then suggests that the legislature never considered the problem involved in this case. Clearly, neither of these contentions is tenable. Section 257.23 does not make a guilty party liable to all obligations imposed upon a father of a legitimate child but only for the obligations of 'care, maintenance and education.' We know of no court, and of no lexicographer, that has construed or defined the words Care, maintenance, and Education to include inheritance rights.

Furthermore, there is nothing to indicate that the legislature failed to foresee the problem involved in this case. The Snethun and Reilly cases both involve adjudications of paternity and both were decided more than 20 years ago. Several sessions of the legislature...