Ortiz' Estate, In re

• Decision Date: 15 August 1969
• Citation: 60 Misc.2d 756,303 N.Y.S.2d 806
• Parties: In re ESTATE of Julio Segarra ORTIZ. Application of Francisco Segarra ORTIZ, as Administrator of the Goods, Chattels and Credits that were of Julio Segarra Ortiz, Deceased, for leave to settle and compromise a certain cause of action for negligence resulting in the wrongful death of the decedent. Surrogate's Court, Kings County
• Court: New York Surrogate Court

Page 806

303 N.Y.S.2d 806

60 Misc.2d 756

In re ESTATE of Julio Segarra ORTIZ Application of Francisco Segarra ORTIZ, as Administrator of the Goods, Chattels and Credits that were of Julio Segarra Ortiz, Deceased, for leave to settle and compromise a certain cause of action for negligence resulting in the wrongful death of the decedent.

Surrogate's Court, Kings County.

Aug. 15, 1969.

Joseph Klotz, New York City, for petitioner.

Dora Aberlin, New York City, for three children of decedent-claimants.

NATHAN R. SOBEL, Surrogate.

This proceeding raises the issue of the rights of illegitimate children who have suffered 'pecuniary injuries' to share in the distribution of damages recovered in an action for the wrongful death of their putative father.

Two issues are discussed:

I. The rights of such illegitimates under the Equal Protection clauses of the Federal and State Constitutions (Fourteenth Amendment; Art. I § 11 Constitution of New York State).

II. The recognition required to be given by the courts of this State to legitimation statutes of other States, in this instance, Puerto Rico.

The parties have agreed to submit the legal questions before offering proof of paternity. Some other factors need to be mentioned. The issue of the rights of these illegitimate children is first raised after a compromise had already been reached and approved in an action brought by the administrator. The damages were sought on behalf of the dependent parents as sole distributees of the deceased. The children seek only to share in the statutory distribution although they were not 'persons for whose benefit the action is brought' (EPTL 5--4.3). It should be observed also that under the pertinent statute (EPTL 4--1.1) the children would take all to the exclusion of the parents, although the latter did establish pecuniary injury while the former might not have been able to do so. These problems and the issue of paternity will be reserved for later determination. Only the legal questions are discussed.

The New York Statutes.

EPTL 5--4.4 provides that damages in an action for wrongful death 'are exclusively for the benefit of the decedent's distributees and, when collected, shall be distributed to the persons entitled thereto under 4--1.1 * * *' in proportion to the pecuniary injuries suffered by them.

EPTL 4--1.1 governs the descent and distribution of property of a decedent in intestacy.

The wrongful death statute's incorporation by reference of the distribution statute is 'short-cut' legislation. The former did not always include All distributees as beneficiaries of a wrongful death action. Like such statutes in many States it at one time limited damages to closest of kin. The point is that the Legislature may in its absolute discretion designate one class of beneficiaries to inherit and another class to receive the damages for wrongful death. That it elected to make each the same has no significance.

When, however, one statute incorporates by reference the provisions of another, it usually incorporates by operation of law amendments to the latter and often as well decisions of courts affecting the latter. In the instant situation, as the classes of distributees entitled to inherit in intestacy are broadened or narrowed, so are those entitled to damages in wrongful death action; and, to state the issue specifically, as illegitimates are permitted by statute or decision to inherit, these become automatically entitled to distribution of the proceeds of wrongful death actions.

As do other States, New York has two kinds of legitimation statutes. One kind legitimates a child born illegitimate. The other kind by broadening the class of legitimates, in effect makes a child born illegitimate, legitimate from birth Nunc pro tunc.

EPTL 4--1.2 is a legitimation statute. It specifies the circumstances under which a child born illegitimate may be a 'distributee' (EPTL 1--2.5) entitled to inherit in intestacy and therefore by operation of law to be the beneficiary of a wrongful death action. That statute provides that an illegitimate child is the legitimate child of his mother entitled to inherit from her and she from him and, in consequence, each may share as beneficiary for the wrongful death of the other. But under the same statute an illegitimate child may neither inherit from his father nor the father from him Unless '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.' Thus, only if such an order of filiation is duly made may the illegitimate child share in the recovery for the wrongful death of his father.

Some things, pertinent to the later discussion of the legal problems, should be noted about this filiation statute.

First, neither formal acknowledgment outside of court nor informal acknowledgment, such as residing in the same household or furnishing support, suffice to give the illegitimate status (Matter of Consolazio, 54 Misc.2d 398, 282 N.Y.S.2d 905). Status, if it is to be recognized, must be effected through a proceeding in the Family Court (F.C.A. §§ 511--518). Many States recognize less formal procedures and because of this conflict of law problems are created for our courts when the illegitimate is born in one of such jurisdictions.

Second, because of the short limitation of time within which to commence a filiation proceeding, no initiative of the child--since he cannot act for himself--can achieve for him legitimate status. Such a provision creates constitutional questions.

Former sections 24 and 145 of the Domestic Relations Law represent the second kind of statute, those that legitimate for all purposes an illegitimate nunc pro tunc from birth. Both sections speak in terms of a marriage of the parents. In the instant case there is no claim that the parents married common law or otherwise. The statutes are briefly discussed because 'marriages' in other jurisdictions have caused conflict of law problems for our courts.

Former sections 24 and 145 have been repealed, effective April 30, 1969. In their place a new section 24 of the Domestic Relations Law has been enacted (C.325 L.1969). The new section is as comprehensive a 'marriage' provision as any in the Nation. It does away with all former distinctions for the purposes of legitimacy between void and voidable marriages and between marriages taking place within or without the State. Its pertinent provisions are:

'A child heretofore or hereafter born of parents who prior or subsequent to the birth of such child shall have entered into a civil or religious marriage, or shall have consummated a common-law marriage where such marriage is recognized as valid, in the manner authorized by the law of the place where such marriage takes place, is the legitimate child of both natural parents notwithstanding that such marriage is void or voidable or has been or shall hereafter be annulled or judicially declared void.'

In consequence of this new statute New York will recognize bigamous, incestuous or other void marriages no matter where performed as legitimating from birth an illegitimate child of the parties to such a marriage. Contrary decisions are no longer law (cf. Olmsted v. Olmsted, 190 N.Y. 458, 83 N.E. 569, affd. 216 U.S. 386, 30 S.Ct. 292, 54 L.Ed. 530).

With these statutes in mind, we discuss the two issues of law raised in this proceeding.

I

'No State shall * * * deny to any person within its jurisdiction the equal protection of the laws' (U.S.Const. Fourteenth Amendment). 'No person shall be denied the equal protection of the laws of this state * * *.' (Art. I § 11)

These provisions do not forbid unequal laws and do not require every law to be equally applicable to all persons (Barbier v. Connolly, 113 U.S. 27, 5 S.Ct. 357, 28 L.Ed. 923). Equal protection only requires that a statute operate equally upon all members of the group provided the group is defined reasonably--reasonably being measured in terms of a proper legislative purpose.

The inquiry in this case is whether the line drawn between legitimates as a group and illegitimates as a group by our wrongful death statute (EPTL 5--4.4) has a rational purpose in terms of the purpose of that statute to permit recovery for pecuniary loss for causing the death of a parent. May the criterion of illegitimacy be used as a basis for legislative classification in that statute? Denying to illegitimates damages recoverable by legitimates is acceptable only if related to a proper public concern in which illegitimates and legitimates are not situated similarly. The inquiry is whether such statutory differentiation rests on grounds wholly or substantially irrelevant to achievement of the statutory objectives.

That inquiry has recently been answered with respect to the right of an illegitimate child to recover for the death of his mother (Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436) and the mother to recover for the death of her illegitimate child (Glona v. American Guarantee Co., 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441). The Supreme Court held that Louisiana's wrongful death statute, which unlike our own does not permit an illegitimate child to recover for the wrongful death of his mother and vice versa, violates the Equal Protection Clause of the Fourteenth Amendment. The Court held that 'Legitimacy or illegitimacy of birth has no relation to the nature of the wrong allegedly inflicted on the mother. * * * 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.' (391 U.S. 68, 71--72, 88 S.Ct. 1511)

This was the conclusion reached despite Louisiana's assertion of several rational purposes for her wrongful death statute:

'Louisiana's purposes in granting greater rights to legitimates than to...