Ross' Estate, In re

• Decision Date: 29 July 1971
• Citation: 67 Misc.2d 320,323 N.Y.S.2d 770
• Parties: In the Matter of the Petition for Letters of Administration, ESTATE of Anthony Eugene ROSS, Deceased. Surrogate's Court, Kings County
• Court: New York Surrogate Court

Page 770

323 N.Y.S.2d 770

67 Misc.2d 320

In the Matter of the Petition for Letters of Administration ESTATE of Anthony Eugene ROSS, Deceased.

Surrogate's Court, Kings County.

July 29, 1971.

Sidney Schmukler, Brooklyn, for petitioner.

Weinstein, Chayt & Bard, Brooklyn (Maurice Chayt, Brooklyn, of counsel), for respondent.

NATHAN R. SOBEL, Surrogate.

This case presents a novel issue.

In order to bring an action for wrongful death, the mother of the decedent and the illegitimate daughter of the decedent cross petition for limited letters of administration. An illegitimate child by virtue of Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436, is now entitled to share in the recovery. This decision creates the issue.

The daughter is illegitimate only in the sense that she has not been legitmated under the controlling statute EPTL 4--1.2. In other ways her father, the decedent, has acknowledged paternity by holding out, by support, by nominating her as his 'daughter' to receive employee benefits, etc. The petitioning mother of the decedent in her petition acknowledges that the decedent recognized the daughter and supported her. And, since the death of the decedent, the Social Security Administration, on the basis of proof and despite the absence of judicial acknowledgment or court decree has awarded the illegitimate daughter the same benefits as though legitimate.

Nevertheless on the face of our statutes the illegitimate child is not entitled to letters of administration (SCPA 1001). Only a legitimate or legitimated child is entitled to priority over a parent of the decedent. In short, our statutes provide that neither formal acknowledgment outside of court nor informal acknowledgment such as residing in the same household or receiving support serves to make an illegitimate child eligible for letters. Other than the marriage of the parents before or after birth (see Domestic Relations Law, § 24), EPTL 4--1.2 is the only means open to legitimate the child and that statute requires Formal judicial proceedings to be instituted 'within two years from the birth of the child' (see also Family Court Act, §§ 511--518). It may be noted parenthetically that no initiative of a child, since at age two he cannot act for himself, can achieve for him legitimate status. This Court and other courts have questioned the constitutionality of such procedures. This need not be discussed since in any event to raise a constitutional issue some other form of 'substitute' judicial procedure During the lifetime of the father would be required and none has been had in this case.

Parenthetically all that has been said with respect to right to letters would apply in all respects to the right of an illegitimate child to inherit in intestacy under EPTL 4--1.1. But, in this latter regard, it has recently been determined that under the United States Constitution, no federal constitutional right of the illegitimate child to Inherit is violated by statutes such as our own (Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288).

None of this decides the issue.

In Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, Supra, the Supreme Court held that a Louisiana statute which prohibits recovery by an illegitimate child for the wrongful death of his mother created an invidious discrimination which violated the equal protection clause. The essence of the opinion in Levy is 'that it is invidious to discriminate against them (illegitimate children) when no action, conduct, or demeanor of theirs is possibly relevant to the harm that was done to the mother'. Other cases hold that the decision is equally applicable to an action for the wrongful death of the father (Schmoll v. Creecy, 54 N.J. 194, 197, 254 A.2d 525, 529; Matter of Ortiz, 60 Misc.2d 756, 303 N.Y.S.2d 806; see also the Levy case on remand reported 253 La. 73, 216 So.2d 818).

Thus by federal constitutional command illegitimate children are entitled to share in the wrongful death recovery to the same extent as legitimate children. Levy did not discuss how paternity must be proved. But in the companion case of Glona v. American Guaranty & Liability Insurance Co., 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441, which involved a mother's right to sue for the wrongful death of her illegitimate son, the Court mentioned that the decisions may very well be a temptation 'to assert motherhood (fatherhood) fraudulently'. But said the Court 'that problem, however, concerns burden of proof. Where the claimant is plainly the mother (daughter), the State denies equal protection of the laws to withhold relif' merely because the child is illegitimate.

Here plainly the illegitimate child is the daughter of the decedent. No suggestion to the contrary is made by the petitioning mother.

We therefore have the anomalous situation where the cross petitioner (the infant daughter) is entitled under our statutes to the whole recovery but cannot receive letters to...