Moore v. Dague
Citation | 345 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 Date | 07 October 1975 |
Court | United 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.
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 ( ); Glona v. American Guarantee & Liability Ins. Co. (1968), 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441 ( ); Weber v. Aetna Casualty & Surety Co. (1972), 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 ( ); 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 ( ).
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:
'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:
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