Matter of Uhl
| Decision Date | 07 July 2006 |
| Docket Number | CA 05-02760. |
| Parties | In the Matter of the Estate of MILDRED E. UHL, Deceased. ACEA M. MOSEY, as Public Administrator, Respondent; MARIAN (DECKER) RICHARDS et al., Respondents, and SALLY HIMMELSBACH et al., Appellants. (Appeal No. 2.) |
| Court | New York Supreme Court — Appellate Division |
Peter J. Brevorka, Buffalo, for appellants.
Mildred E. Uhl (decedent) died on January 19, 2003 at the age of 94 without a will. Her husband and parents predeceased her, and she had no children or siblings. In this proceeding for the judicial settlement of the accounts of the administrator of decedent's estate, petitioner alleges that each of decedent's six surviving first cousins is interested in the estate. Four of those cousins, respondents Marian (Decker) Richards, William E. Decker, Phyllis Jean (Decker) Anderson and George Craig Decker, Jr. (paternal first cousins), are descendants of Benjamin J. Decker, decedent's paternal grandfather. The remaining two, respondents Sally Himmelsbach and Lora Elkins (maternal first cousins), are descendants of Jacob Seader, decedent's maternal grandfather. Following a kinship hearing, Surrogate's Court determined that only the paternal first cousins are entitled to inherit from decedent pursuant to EPTL 4-1.1 (a) (6) because the maternal first cousins are nonmarital children of their father, Albert H. Seader, and were not entitled to inherit from his kindred under the statute in effect at the time of his death in 1953. We conclude that the Surrogate erred in so determining, and we conclude instead that the maternal first cousins are entitled to inherit from decedent pursuant to EPTL 4-1.2 (a) (2) (C), which was in effect at the time of decedent's death in 2003.
The evidence presented at the kinship hearing established that the four paternal first cousins are the only potential distributees on the paternal side, and their right to inherit from decedent is not at issue on this appeal. The evidence also established that the maternal first cousins are in fact the children of Albert Seader, decedent's uncle, and Elizabeth Archer. Despite the efforts of the maternal first cousins and a professional genealogist to locate a marriage certificate for Albert and Elizabeth, no certificate was located. In addition, on the birth certificate of Sally Himmelsbach, the elder maternal first cousin, the space provided for the father's name is blank and Elizabeth later admitted that she and Albert were not married when Sally was born. There was no direct proof that Elizabeth and Albert married before the birth of Lora Elkins, the younger maternal first cousin. Nevertheless, the testimony of Lora and the documentary evidence established that Albert acknowledged and treated both maternal first cousins as his daughters.
Based upon the evidence presented at the kinship hearing, the Surrogate found that the maternal first cousins are the nonmarital children of Albert. They are not entitled to inherit from decedent through their father, the Surrogate concluded, because their inheritance rights were fixed as of the date of Albert's death in 1953. Pursuant to Decedent Estate Law § 83, in effect at that time, nonmarital children could not take in intestacy from their father or paternal kindred. Rather, nonmarital children were entitled to inherit only from their mother, and even then only if the mother had no marital children. They were not entitled at that time to inherit from their mother's kindred, and in no case could nonmarital children inherit from their father or his kindred (see Turano, Practice Commentaries, McKinney's Cons Laws of NY, Book 17B, EPTL 4-1.2, at 657-658). Thus, at the time of their father's death, the maternal first cousins would not have been considered the children of Albert for purposes of inheritance from him or his kindred under any circumstances.
The decades following Albert's death have been marked by a gradual liberalization of the law governing the rights of nonmarital children to inherit. The Legislature's "successive efforts at liberalizing the rights of nonmarital children to inherit from their fathers" were undertaken with a view toward eliminating the disparity between marital and nonmarital children (Matter of Smith, 118 Misc 2d 165, 169 [1983]; see Matter of Crist, 116 Misc 2d 1078, 1082 [1982]; Matter of Kenny, 114 Misc 2d 203, 213 [1982]). In Crist, Surrogate's Court wrote:
"In the evolution of the law pressing for the extension to all children the enlightened perspective of their equality without regard to the errors or omissions of their [biological] parents, the Legislature exercising its sovereign power with respect to the descent and distribution of the property of the decedents, enacted EPTL 4-1.2 [(a) (2)], which is a remedial statute mandating that children born out of wedlock are the legitimate children of their father and his paternal kindred" (116 Misc 2d at 1081-1082).
The Legislature gradually effectuated that remedial purpose by expanding the methods by which nonmarital children may establish paternity. In 1965 the Legislature enacted Decedent Estate Law § 83-a, which is now EPTL 4-1.2 (see Matter of Wilkins, 180 Misc 2d 568, 572 [1999]), thereby providing for the first time that a nonmarital child would be treated as the legitimate child of his or her father if there was an order of filiation determining paternity in a proceeding instituted during the mother's pregnancy or within two years of the child's birth (see Matter of Smith, 114 Misc 2d 346, 347-348). The inheritance rights of nonmarital children were further extended in 1979 with the elimination of the two-year period in which to institute a paternity proceeding and the addition of a second method of demonstrating the right to be treated as a legitimate child of the father, i.e., the filing of an acknowledgment of paternity (L 1979, ch 139, § 1; see Smith, 114 Misc 2d at 348-349; Kenny, 114 Misc 2d at 217).
At the kinship hearing, the paternity of Albert was established by clear and convincing evidence, and it is undisputed that he "openly and notoriously acknowledged" the maternal first cousins as his own (id.). The issue before us, however, is not whether the maternal first cousins satisfy the evidentiary requirements of clause (C) of the statute. Rather, the issue is whether the statute applies at all. In determining whether the statute applies, the dispositive date is...
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