Schmoll v. Creecy

• Decision Date: 26 June 1969
• Citation: 254 A.2d 525,54 N.J. 194
• Parties: , 38 A.L.R.3d 605 Alan R. SCHMOLL, General Administrator and Administrator ad Prosequendum of the Estate of Cornelius Paynter, Sr., Deceased, Plaintiff-Appellant, v. Roshier G. CREECY, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 194

54 N.J. 194

254 A.2d 525, 38 A.L.R.3d 605

Alan R. SCHMOLL, General Administrator and Administrator ad

Prosequendum of the Estate of Cornelius Paynter, Sr., Deceased, Plaintiff-Appellant, v. Roshier G. CREECY, Defendant-Respondent.

Supreme Court of New Jersey.

Argued May 19, 1969.

Decided June 26, 1969.

Walter Gollub, Camden, for appellant.

Charles A. Cohen, Camden, for respondent (Kisselman, Devine, Deighan & Montano, Camden, attorneys).

The opinion of the court was delivered by

WEINTRAUB, C.J.

The principal question is whether illegitimate children may recover damages for the wrongful death of their natural father.

Decedent was married in 1955 and had two children by that marriage. In 1956 he separated from his wife. Thereafter he lived with another woman ostensibly as her husband and had by her five children, all of whom were members of his household when he died in 1966. On motion the trial court held the illegitimate children could not recover damages for the wrongful death of their father despite their dependency upon him. The Appellate Division affirmed, 104 N.J.Super. 126, 249 A.2d 3 (1969), and an appeal was taken to us as of right, R.R. 1:2--1(a), because of the constitutional issue, whether the denial of relief to these children because of their illegitimacy offends the equal protection clause of the Federal Constitution.

I.

The wrongful death action was unknown to the common law and hence is the creature of statute. Our wrongful death statute has always identified the beneficiaries of the action by referring to the statute controlling distribution of intestate personalty. Thus the first wrongful death act (P.L.1848, p. 151) provided that the action 'shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall be distributed to such widow and next of kin in the proportions provided by law in relation to the distribution of personal property left by persons dying intestate.' In its present form the death act, N.J.S.A. 2A:31--4, reads:

'The amount recovered in proceedings under this chapter shall be for the exclusive benefit of the persons entitled to take any intestate personal property of the decedent, and in the proportions in which they are entitled to take the same. If any of the persons so entitled were dependent on the decedent at his death, they shall take the same as though they were sole persons so entitled, in such proportions, as shall be determined by the court without a jury, and as will result in a fair and equitable apportionment of the amount recovered, among them, taking into account in such determination, but not limited necessarily thereby, the age of the dependents, their physical and mental condition, the necessity or desirability of providing them with educational facilities, their financial condition and the availability to them of other means of support, present and future, and any other relevant factors which will contribute to a fair and equitable apportionment of the amount recovered.'

We are thus referred to the statutes relating to the distribution of intestate personalty to ascertain the beneficiaries of a death action. At common law an illegitimate child could not inherit from its mother or its putative father. Hammond v. Pennsylvania R.R. Co., 31 N.J. 244, 251, 156 A.2d 689 (1959). The rule was modified by N.J.S.A. 3A:4--7 in these terms:

'For the purpose of descent and distribution under this chapter to, through and from an illegitimate child, such child shall be treated the same as if he were the legitimate child of his mother, so that he and his issue shall inherit and take from his mother and from his maternal kindred, including his maternal ancestors, descendants and collaterals; and they, from him and his issue. When parents of an illegitimate child shall marry subsequent to his birth and recognize and treat him as their child, such child shall be deemed to have been made the legitimate child of both of his parents for the purpose of descent and distribution to, through and from him under this chapter.'

Accordingly the illegitimate child takes from and through its mother, but not from or through the father unless legitimated in accordance with this provision.

Reading the wrongful death act in the light of the statute concerning distribution of personal property, the Appellate Division concluded that an illegitimate child could recover for the wrongful death of its mother but not for the wrongful death of its natural father unless legitimated under N.J.S.A. 3A:4--7. See Di Medio v. Port Norris Express Co Inc., 71 N.J.Super. 190, 176 A.2d 550 (Law Div.1961), and Annotation, 72 A.L.R.2d 1235 (1960).

II.

We agree with the Appellate Division's reading of the wrongful death statute, but we are unable to agree that the statute, thus read, is compatible with the equal protection clause as construed in Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968), and Glona v. American Guarantee & Liability Insurance Company, 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441 (1968).

Those cases involved the law of Louisiana. In Levy illegitimate children sought to recover for the wrongful death of their mother, and in Glona a mother sought to recover for the wrongful death of her illegitimate child. The State court had construed the wrongful death statute to protect only a legitimate child and the mother of a legitimate child. The Supreme Court held that, so construed, the statute would deny equal protection of the law.

It is argued that the case before us is different because (1) our death act is related in terms to a statute dealing with the devolution of property and Levy and Glona do not touch that topic, and (2) those cases deal only with the relation of an illegitimate child and its mother.

The first proposition may be disposed of quickly. There are of course differences between a wrongful death statute and an inheritance statute. A wrongful death statute itself determines who shall benefit, and the decedent has no voice in the matter. On the other hand, an inheritance statute embodies no more than the presumed intention of decedents who do not express their wish. It may therefore be urged that our inheritance statute does not generate a distinction between legitimate and illegitimate children but merely reflects the probable intent of individuals who are themselves constitutionally free to draw that line and who presumptively subscribe to the view of the statute by omitting to direct otherwise by will. Then, too, at least in the case of a male decedent, there is fear of spurious claimants, a problem more formidable in estate situations than in wrongful death actions in which the amount of the recovery will depend critically upon the amount of pecuniary injury shown.

One court has found that the 'reasoning of Levy' required the conclusion that the illegitimate children must be permitted to share with their mother's legitimate children in the estate of a legitimate child. In re Estate of Jensen, 162 N.W.2d 861, 876--879 (N.D.Sup.Ct.1968). We find it impossible to tell from Levy and Glona whether their thesis will embrace the devolution of intestate property, especially of the putative father. But we need not explore that question, for although the Legislature has referred to the statute of distribution to identify the beneficiaries under the wrongful death statute, the beneficiaries take, not under the statute of distribution, but under and by virtue of the wrongful death statute. It has long been settled that the recovery under the wrongful death statute forms no part of the estate of the deceased. ¹ Gottlieb v. North Jersey Street Ry. Co., 72 N.J.L. 480, 484--485, 63 A. 339 (E. & A. 1906); Soden v. Trenton and Mercer County Traction Co., 101 N.J.L. 393, 398, 127 A. 558 (E. & A. 1925). The proceeds reach the beneficiaries because the wrongful death act so provides, and unlike the decedent's own estate, the proceeds of the death action are so distributed without regard to his last will and testament.

Thus the case before us does not involve the question whether the Legislature may say that only legitimate children may take the intestate property of the parent. The wrongful death statute involves something quite different. It provides a remedy for 'the pecuniary injuries resulting' to the designated relatives because of the death of the decedent, N.J.S.A. 2A:31--5, and the question therefore is whether it is arbitrary to provide a remedy for a legitimate child and to deny a like remedy to an illegitimate child who sustained precisely the same tortious injury.

The subject matter of our statute is thus the same as the subject matter in Levy, and that case applies unless defendant is correct in his second proposition that it deals only with the relation of the mother and child. We do not think Levy can be so confined.

The majority opinion in Levy reads in part (391 U.S. at 72, 88 S.Ct., at 1511, 20 L.Ed.2d at 439):

'Legitimacy or illegitimacy of birth has no relation to the nature of the wrong allegedly inflicted on the mother. These children, though illegitimate, were dependent on her; she cared for them and nurtured them; they were indeed hers in the biological and in the spiritual sense; in her death they suffered wrong in the sense that any dependent would. ⁵'

In footnote 5 the Court pointed out that under Louisiana law both parents are under a duty to support their illegitimate child. ² Although the passage we just quoted speaks of the mother and her child, the underlying principle must be that when children suffer tortious injury by the wrongful death of a parent, their legitimacy is irrelevant to the tortfeasor's liability, and hence it is invidious to grant a remedy to the legitimate and withhold it from the illegitimate child. Under that thesis, it can be of no logical moment whether that parent was the mother or the father.

Hence the principle of Levy and Glona must equally...