Moore v. Dague

Citation345 N.E.2d 449,75 O.O.2d 68,46 Ohio App.2d 75
Parties, 75 O.O.2d 68 MOORE, Appellant, v. DAGUE, Exrx., et al., Appellees.
Decision Date07 October 1975
CourtUnited States Court of Appeals (Ohio)

Syllabus by the Court

1. An illegitimate child cannot inherit from or through his natural father unless the father takes some steps during his lifetime to permit such inheritance, such as acknowledgment pursuant to R.C. 2105.18, designating the illegitimate as an heir pursuant to R.C. 2105.15, adopting the illegitimate, or providing for the illegitimate in his will.

2. There is no invidious discrimination constituting an unconstitutional denial of the equal protection of the law in the application of Ohio law denying to one who is illegitimate any right to inherit from the natural father unless the father has provided for such inheritance.

3. An illegitimate child does not per se have a direct pecuniary interest in the estate of his natural father that would be defeated or impaired if the father's will, admitted to probate, is a valid will; thus, he has no standing to contest the will of his natural father.

Hilliard, Ramsey & Johnson, Columbus, for appellant.

Mark Sladoje, Jr., Columbus, for appellees.

WHITESIDE, Judge.

Plaintiff appeals from a judgment of the Franklin County Court of Common Pleas dismissing his will contest action upon the grounds that he does not have standing to bring the action. Although plaintiff has not set forth a specific assignment of error, he does state in his brief:

'The only question for the Court to decide in this case is whether an illegitimate child may inherit from his natural father.'

We accordingly assume and will consider this to constitute the assignment of error.

By his Complaint, plaintiff alleges that he is the son of the decedent, Charles C. Barnes, and, accordingly, is the sole person who would be entitled to inherit his estate if the decedent had died intestate. Plaintiff further alleges that the paper admitted to probate is not the last will and testament of the decedent. The executrix of the estate filed a motion to dismiss the action upon the grounds that plaintiff is not an heir at law and does not have standing to maintain an action to contest the will. This motion was sustained by the trial court, and the action dismissed.

Although there are some procedural questions as to the manner of raising the issue presented, plaintiff has raised no objection with respect to the procedure and has conceded for the purposes of appeal that he claims to be the illegitimate son of the decedent. It further would appear that plaintiff is an adult since he brought this action on his own behalf.

Common law has considered an illegitimate child as nullius filius, the child of no one, and, therefore, not entitled to inherit from anyone. This common-law rule was modified in 1831 by statute, giving to the illegitimate child the right to inherit from his mother. By further amendment in 1853, the rule was further modified by statute so that now, in Ohio, an illegitimate child can inherit both from and through his mother. R.C. 2105.17.

It has remained the law of Ohio, unchanged by the statute of descent and distribution (R.C. 2105.06) that an illegitimate child cannot inherit from or through his natural father unless the father takes some steps during his lifetime to permit such inheritance. Blackwell v. Bowman (1948), 150 Ohio St. 34, 80 N.E.2d 493. The father may legitimatize an illegitimate child by afterwards marrying his mother and acknowledging the child as his. R.C. 2105.18. Children of an invalid marriage are legitimate. R.C. 2105.18. The natural father of an illegitimate child may confer upon such child a right of inheritance from such father by several means: (1) by formal acknowledgement in probate court that the child is his with consent of the mother (R.C. 2105.18); (2) by designating the illegitimate child as his heir at law (R.C. 2105.15); (3) by adopting the illegitimate child; and (4) by making a provision for the child in his will.

Plaintiff contends that to interpret R.C. 2105.06 as continuing the common-law rule precluding an illegitimate child from inheriting from his natural father constitutes a denial of the equal protection of the law from the illegitimate child.

In recent years, the United States Supreme Court has found that the denial of certain rights to an illegitimate child constitutes an unconstitutional denial of the equal protection of the law. See Levy v. Louisiana (1968), 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (right of an illegitimate child to maintain an action for the wrongful death of his mother); Glona v. American Guarantee & Liability Ins. Co. (1968), 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441 (right of the mother of an illegitimate child to maintain an action for the wrongful death of such child); Weber v. Aetna Casualty & Surety Co. (1972), 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (right of an illegitimate child to workmen's compensation benefits for the death of his natural father); Gomez v. Perez (1973), 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (right of an illegitimate child to support from his natural father); and Jimenez v. Weinberger (1974), 417 U.S. 628, 94 S.Ct. 2496, 41 L.Ed.2d 363 (right of an illegitimate child to social security benefits flowing from the disability of his natural parent).

These cases invalidating laws distinguishing between legitimate and illegitimate children have been predicated in part upon the lament that a child is illegitimate through no fault of his own and should not be punished or denied rights solely because of the sin of his parents or a wrong inflicted upon his mother. There is nothing new about this lament, nor has it previously been unconsidered. In a case decided in 1854, involving the question of whether the legitimate children of the mother of an illegitimate child could inherit from the illegitimate child, Judge Ranney stated in Lewis v. Eutsler (1854), 4 Ohio St. 354, at page 358-359:

'A man needs little more than his instincts to determine what the law ought to be in such a case. Perkey had no election whether he should be born legitimate or illegitimate. It was no fault of his that he was born illegitimate, and he had the same right as others, whose origin was more fortunate, to be judged by his own personal conduct, and not only protected in the enjoyment of what he should acquire while he lived, but to have what remained of it transmitted to his blood when he died. In his case, as in others, such security furnished the strongest possible stimulus to that industry and economy, upon which the prosperity of state depends; and, for the most cogent reasons, precluded the state from intervening to impair it.

'Very good reasons, founded upon public policy, and growing out of the uncertainty that must generally attend the paternity of the illegitimate child, can be given, for cutting him off from all connection with the paternal line. To this necessity, he must submit. But no doubt can exist as to the identity of the mother. The child is necessarily reared by her; and between them, as well as between the child and her other children, must grow up those strong ties which bind near kindred to each other. However sternly the law may declare there to be no relationship, nature will assert her supremacy, and stamp the declaration as unfounded.

'The most subtle ingenuity would fail to suggest even a plausible reason why these persons should not inherit to each other; and the state could in no way prevent it, and take the property from them, without incurring the imputation of gross injustice.'

The United States Supreme Court has expressly held constitutional a state law denying an illegitimate child any right to inherit by intestate succession from his natural father. Labine v. Vincent (1971), 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288. Justice Black, speaking for the court, stated at pages 537-539, 91 S.Ct. at pages 1020-1021:

'These rules for intestate succession may or may not reflect the intent of particular parents. Many will think that it is unfortunate that the rules are so rigid. Others will think differently. But the choices reflected by the intestate succession statute are choices which it is within the power of the State to make. The Federal Constitution does not give this Court the power to overturn the State's choice under the guise of constitutional interpretation because the Justices of this Court believe that they can provide better rules. Of course, it may be said that the rules adopted by the Louisiana Legislature 'discriminate' against illegitimates. But the rules also discriminate against collateral relations, as opposed to ascendants, and against ascendants, as opposed to descendants. Other rules determining property rights based on family status also 'discriminate' in favor of wives and against 'concubines.' The dissent attempts to distinguish these other 'discriminations' on the ground that they have a biological or social basis. There is no biological difference between a wife and a concubine nor does the Constitution require that there be such a difference. * * * Some of these discriminatory choices are perhaps more closely connected to our conceptions of social justice or the ways in which most dying men wish to dispose of their property than the Louisiana rules governing illegitimate children. It may be possible that some of these choices are more 'rational' than the choices inherent in Louisiana's categories of illegitimates. But the power to make rules to establish, protect, and strengthen family life as well as to regulate the disposition of property left in Louisiana by a man dying there is committed by the Constitution of the United States and the people of Louisiana to the legislature of that State. Absent a specific constitutional guarantee, it is for that legislature, not the life-tenured judges of this Court to select from among possible laws. * * *'

J...

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