IN RE ESTATE OF BLUMREICH, Dеceased: CALDWELL, by his Guardian ad Litem, Frederic C. Eberlein, Appellant, v. KAQUATOSH, Personal Representative of the Estate of Herman Blumreich, Deceased, and others, Respondents.
Nos. 75-728, 76-068
Supreme Court of Wisconsin
June 30, 1978
267 N.W.2d 870
Submitted March 7, 1978.
IN RE ESTATE OF BLUMREICH, Deceased: CALDWELL, by his Guardian ad Litem, Frederic C. Eberlein, Appellant, v. KAQUATOSH, Personal Representative of the Estate of Herman Blumreich, Deceased, and others, Respondents. [Case No. 75-728.]
CALDWELL, by Frederic C. Eberlein, Guardian ad Litem, Appellant, v. ESTATE OF BLUMREICH, Deceased, Kaquatosh, Personal Representative, Respondent. [Case No. 76-068.]
Nos. 75-728, 76-068. Submitted March 7, 1978.—Decided June 30, 1978. (Also reported in 267 N.W.2d 870.)
For Rachel Powless and Josephine Powless the cause was submitted on the brief of John C. Black, Guardian ad litem, of Shawano.
Brief amicus curiae filed by Dennis J. Verhaagh and Denissen, Kranzush, Mahoney & Ewald, S. C., of Green Bay.
Brief amicus curiae filed by Wisconsin Judicare, Inc., of Wausau.
CONNOR T. HANSEN, J. The petitioner, by his guardian ad litem, petitioned the Shawano-Menominee county court, probate branch, EDWARD P. HERALD, County Judge of Oconto county, Presiding, for a support allowance from the estate of the decedent, Herman Blumreich, and for a determination that he is the sole surviving heir of the decedent. The petition was denied.
Thereafter, the petitioner commenced an action for declaratory relief in the county court of Shawano-Menominee county, RALPH J. STRANDBERG, County Judge of Langlade county, Presiding, seeking a determination that he is the son of the decedent, Herman Blumreich; that he is entitled to inherit from the decedent‘s estate in the same manner as a legitimate child; and that he is eligible to commence an action for the wrongful death of the decedent. The petitioner‘s complaint was dismissed on the ground that the petitioner had not alleged facts sufficient to meet the requirements of proof set forth in
The petitioner appeals from the order dismissing his complaint in the declaratory judgment action and from the order denying his petition in the estate proceedings,
The pertinent facts, as they appear from offers of proof made in the estate proceeding, are alleged to be as follows:
Delores Caldwell, the mother of the petitioner, kept steady company with the decedent, Herman Blumreich, throughout 1972 and 1973. They spent many nights together and in June, 1973, were living together. At that time, Delores Caldwell became pregnant. The only man with whom she had intercourse during the period of conception was the decedent, Herman Blumreich.
The decedent told acquaintances that he was the father of the unborn child and that he and Delores planned to marry before the child was born. However, he made no written acknowledgment of paternity; he made no admission of paternity in open court; and there was no adjudication of paternity.
The decedent, Herman Blumreich, was killed in an automobile accident on January 9, 1974. The petitioner, Herman Caldwell, was born to Delores Caldwell on March 31, 1974.
Herman Blumreich left an estate with a value of approximately $17,000. He was survived by two sisters, a brother, and two nieces, and by the petitioner, Herman Caldwell, whose rights are the subject of these appeals.
On appeal, the petitioner argues that he should be permitted to establish paternity by means of an action for declaratory judgment, and that he is eligible for a support allowance under
Briefs in opposition to the petitioner‘s arguments have been filed by the personal representative of the decedent‘s estate, and by the decedent‘s two minor nieces, by their
The following issues are presented:
- May an illegitimate child take by intestate succession from the estate of his putative father, and maintain an action for the wrongful death of the putative father, where paternity has not been established as provided in
sec. 852.05 (1), Stats. , during the life of the putative father? - May an illegitimate child whose paternity has not been established as provided in
sec. 852.05 (1), Stats. , during the life of his putative father, receive an allowance for support and education from the estate of the putative father? - Does
sec. 852.05(1), Stats. , deny posthumous illegitimate children equal protection or due process of law?
I.
Herman Blumreich did not acknowledge paternity of the petitioner in open court or in a signed writing, and there was no adjudication of paternity prior to Blumreich‘s death. It is the petitioner‘s position, however, that
However, these approaches are foreclosed by the plain language of the statutes and by the controlling decision of this court in Krantz v. Harris, supra. In Krantz, a posthumously-born illegitimate child sought to maintain an action for the wrongful death of his putative father. This court held that such an action could be maintained only if the child had been legitimated by marriage or if
paternity had been established as provided in sec. 237.06, Stats. 1967, the precursor of
The child in Krantz conceded that he could not satisfy the statutory requiremеnts, and this court therefore held that he could not maintain an action for wrongful death. This holding is controlling with regard to the construction of the statutes in question here.
Any argument that
This conclusion is consistent with the provisions of ch. 52, Stats. Paternity proceedings must be conducted in the manner prescribed by the legislature, State ex rel. Lyons v. DeValk, 47 Wis.2d 200, 177 N.W.2d 106 (1970). Chapter 52, Stats., in its entirety demonstrates that such a proceeding is to be maintained during the life of the putative father. Among other things, that chapter provides for the apprehension of the alleged father and for his release on bail and permits him to cross-examine the complainаnt.
This is in harmony with decisions in other states, which:
“. . . are almost unanimous that a filiation or bastardy proceeding may not be instituted after the death of the putative father, so as to charge his estate with the duty to support the illegitimate.” Annot., 58 A.L.R.3d 188, 191 (1974). See, e.g.: Carpenter v. Sylvester, 267 So.2d 370 (Fla. App. 1972); Toms v. Lohrentz, 37 Ill. App.2d 414, 185 N.E.2d 708 (1962).
It is also significant that
Nor is an action for declaratory relief appropriate. The petitioner relies upon Slawek v. Stroh, 62 Wis.2d 295, 215 N.W.2d 9 (1974). In that case, this court held that the putative father of an illegitimate child was entitled to maintain a declaratory judgment action seeking a determination that he was the child‘s father. This holding was premised on the absence of any other procedure by which the father could establish his rights and duties.
The petitioner maintains that it is effectively impossible for an аfter-born illegitimate child to satisfy the requirements of
In effect, the petitioner asks this court to engraft onto the plain language of
In Larson v. ILHR Department, 76 Wis.2d 595, 252 N.W.2d 33 (1977), this court held that an illegitimate
Similarly, the law of descent and distribution is of legislative origin and subject to the control of the legislature; see: Estate of Topel, 32 Wis.2d 223, 230, 145 N.W.2d 162 (1966), and a cause of action for wrongful death is purely statutory. Krantz v. Harris, supra, at 714. As in Larson, supra, therefore, the criteria prescribed by statute must be considered exclusive in the absence of any constitutional infirmity.
II.
The petitioner next contends that regardless of his ability to inherit from the decedent‘s estate or to maintain an action for wrongful death, he is eligible to receive a support allowance from the estate under
The petitioner maintains that he is a minor child of the decedent eligible to receive an allowance under these provisions. As authority for this proposition, he citеs In Re Woodward‘s Estate, 230 Cal. App.2d 113, 40 Cal. Rptr. 781 (1964). There, a California District Court of Appeal held that an illegitimate child came within the class of “minor children” of a decedent entitled to allow-
We do not find this reasoning persuasive. There is nothing in
It is more reasonable to conclude that
III.
The petitioner contends that
In a series of cases beginning with Levy v. Louisiana, 391 U.S. 68 (1968), the United States Supreme Court has considered the constitutionality of statutory classifications based on illegitimacy. These decisions establish that statutes such as
The most recent of the Supreme Court cases, and the most relevant to the present question, is Trimble v. Gordon, 430 U.S. 762 (1977). In Trimble, the Supreme Court overturned provisions of the Illinois Probate Act which precluded an illegitimate child from inheriting by intestate succession from his or her father unless the child has been both legitimated by the inter-marriage of the parents and acknowledged by the father. The appellant in Trimble, Deta Mona Trimble, was an illegitimate minor girl whose parents had not married and who therefore was unable to inherit from the estate of her deceased fathеr, despite the fact that she had been adjudicated to be his daughter in a paternity proceeding conducted during his lifetime.
This statutory discrimination against illegitimates could not be justified by reference to the state‘s interest in protecting the sanctity of marriage and the integrity of the family unit, the Supreme Court held. The Court reiterated previous holdings that a state may not attempt to influence the actions of men and women by imposing sanctions on the children born of their illegitimate re-
The Supreme Court recognized, however, that statutory distinctions based on illegitimacy may have other, more substantial, justifications. The Court recognized the state‘s legitimate interest in establishing a method of property disposition, and said:
“The orderly disposition of property at death requires an appropriate legal framework, the structuring of which is a matter particularly within the competence of the individual States. In exercising this responsibility, a State necessarily must enact laws governing both the procedure and substance of intestate succession. Absent infringement of a constitutional right, the federal courts have no role here, and, even when constitutional violations are alleged, those courts should accord substantial deference to a State‘s statutory scheme of inheritance.” Trimble v. Gordon, supra, at 771.
More specifically, the Court recognized that the difficulty of proving paternity and the related danger of spurious claims are particularly acute in the case of illegitimate children of intestate men. The court acknowledged that:
“The more serious problems of proving paternity might justify a more demanding standard for illegitimate children claiming under their fathers’ estates than that required either for illegitimate children claiming under their mothers’ estates or for legitimate children generally. . . .” Trimble v. Gordon, supra, at 770.
In addition, the Court was sensitive to the necessity of drawing arbitrary lines to facilitate the potentially difficult problems of proof lurking in inheritance proceedings. Trimble v. Gordon, supra, at 771.
The state thus has valid interests in preventing fraud, resolving problems of proof and regulating the disposition of property at death. While these interests will not excuse otherwise invidious discrimination, they will sustain an enactment which “does not broadly discriminate between legitimates and illegitimates without more, but is carefully tuned to alternative considerations. . .” Mathews v. Lucas, supra, at 513. To survive constitutional review, a statute must not unnecessarily exclude significant categories of illegitimates whose inheritance rights could be recognized without jeopardizing the orderly settlement of estates or the dependability of titles to property passing by intestacy. Trimble v. Gordon, supra, at 771. The Illinois statute under consideration in Trimble, supra, did not meet this standard because it unnecessarily and inexplicably excluded illegitimates such as Deta Mona Trimble, whose paternity had been established in a state court paternity action and whose claim would not in any way compromise the accurate and efficient disposition of the decedent‘s estate.
In striking down the Illinois statute, the Supreme Court made clear, however, that states may prescribe reasonable requirements regarding the proof of paternity. The Court said:
“Evidence of paternity may take a variety of forms, some creating more significant problems of inaccuracy and inefficiency than others. The States, of course, are free to recognize these differences in fashioning their requirements of proof. Our holding today goes only to those forms of proof which do not compromise the State‘s interests. This clearly would be the case, for example, where there is a prior adjudication or formal acknowledgment of paternity. Thus, we would have a different case if the state statute were carefully tailored to eliminate imprecise and unduly burdensome methods of establishing paternity.” Trimble v. Gordon, supra, at 772, fn. 14.
We believe the exclusion of other forms of posthumous proof of paternity represents a reasonable effort “... to eliminate imprecise and unduly burdensome methods of establishing paternity.” Trimble v. Gordon, supra, at 772, fn. 14. It has been said that the accusation of paternity is easy to make but difficult to defend against. See, e.g.: In re Commissioner of Social Services, 70 Misc.2d 581, 333 N.Y.S.2d 621, 623 (1972). To permit paternity to be established after the death of the putative father, on the basis of his alleged informal, verbal statements would be to place his estate at an unreasonable disadvantage in defending against spurious claims. The decedent would be unavailable to assert defenses or to assist in the cross-examination of his accusers. Information about his blood, which might conсlusively eliminate him as the father, might not be available to his estate. His death thus undermines the reliability of the fact-finding process, and it is not unreasonable to require that a posthumous claim of paternity be supported by the types of documented evidence approved under
In addition, the statutory methods of proof avoid the extended uncertainty which would otherwise plague estate proceedings and wrongful death actions. It is apparently the petitioner‘s position that paternity may be established on the basis of undocumented evidence adduced at any time during the applicable period of limitations.5 Such an approach would produce intolerable confusion. Potential heirs and claimants could not be identified with confidence until after the period of limitations had elapsed. The lurking possibility that an unknown putative child would come forward at some future time would frustrate the orderly settlement of estates and resolution of wrongful death claims. By requiring that paternity be evidenced in a recorded form during the fаther‘s life,
Proof of paternity by posthumous second-hand testimony would be imprecise, unreliable and susceptible to
fraudulent claims, and would inject intolerable uncertainty into estate proceedings and wrongful death actions. Because such posthumous proof would compromise the valid interests of the state, it is not unreasonable to require that paternity be adjudicated, or acknowledged in open court or in writing by the putative father.
This conclusion is buttressed by the decision of the New York Court of Appeals in Matter of Estate of Lalli, 43 N.Y.2d 65, 400 N.Y.S.2d 761 (1977), probable jurisdiction noted, U.S. —, 98 Sup. Ct. 1482, 55 L. Ed.2d 514 (1978), and by the decision of the United States Supreme Court in Mathews v. Lucas, supra.
In Lalli, supra, currently on appeal to the Supreme Court, the New York Court of Appeals considered the constitutionality of a New York inheritance statute which denied an illegitimаte child the right to inherit from his or her intestate father‘s estate unless an adjudication of paternity had been made during the father‘s lifetime. The New York court concluded that this requirement, substantially more restrictive than those of
The New York court emphasized that the statute in question was not an expression of impermissible hostility to illegitimacy as such. Instead, the focus of the New York statute was on the form and manner, and thus the trustworthiness, of the proof of paternity; the statute was concerned “only with proof of paternity and the establishment of a blood relationship between the father and the child.” Matter of Estate of Lalli, supra, at 763.
This observation is equally true of
The New York statute considered in Lalli, supra, required that paternity be established during the life of the father. The New York court rejected the argument that such a requirement was constitutionally impermissible:
“. . . Nor do we perceive the seeds of constitutional infirmity in the requirement that the judicial determination be made within the lifetime of the father. As we noted before, the father ‘may be expected to have greater personal knowledge than anyone else, save possibly the mother, of the fact or likelihood that he was indeed the natural father. His availability should be a substantial factor contributing to the reliability of the fact-finding process.’ . . . Indeed a formal acknowledgment of paternity, apparently found in Trimble to be an acceptable requirement, obviously entails personal participation by the father during his lifetime.” Matter of Estate of Lalli, supra, at 763. (Citations omitted.)
Further support for the classifications set forth in
Under the statutory scheme in question, benefits were conditioned upon a showing that the child was dependent upon the parent at the time of death. Dependency was conclusively presumed for (a) legitimate children, (b) children ineligible to inherit under applicable state intestacy laws, (c) children whose parents’ marriage was invalid as a result of some nonobvious defect, (d) children who had been acknowledged in writing, and (e) children whose paternity had been adjudicated during the life of the deceased parent. Illegitimates who did not come within these categories were required to bear the
The Supreme Court rejected this argument and concluded that the statutory classifications bore a “substantial relation to the likelihood of actual dependency” and reflected “reasonable empirical judgments that are consistent with a design to qualify entitlement to benefits upon a child‘s dependency at the time of the parents’ death....” Mathews v. Lucas, supra, at 510, 513. The Court stated:
“Congress’ purpose in adopting the statutory presumptions of dependency was obviously to serve administrative convenience. While Congress was unwilling to assume that every child of a deceased insured was dependent at the time of death, by presuming dependency on the basis of relatively readily documented facts, such as legitimate birth, or existence of a support order or paternity decree, which could be relied upon to indicate the likelihood of continued actual dependency, Congress was able to avoid the burden and expense of specific case-by-case determination in the large number of cases where dependency is objectively probable. Such presumptions in aid of administrative functions, though they may approximate, rather than precisely mirror, the results that case-by-case adjudication would show, are permissible under the Fifth Amendment, so long as that lack of precise equivalence doеs not exceed the bounds of substantiality tolerated by the applicable level of scrutiny....” Mathews v. Lucas, supra, at 509.
The requirements of
The instant petitioner further argues that
In Trimble v. Gordon, supra, the Supreme Court eschewed this approach. Despite the fact that such an analysis had been employed in sevеral previous opinions, the court concluded that “focus on the presence or absence of an insurmountable barrier is somewhat of an analytical anomaly.” Trimble v. Gordon, supra, at 773. The essential inquiry, instead, is a dual one, which gives due consideration to both the legitimate governmental interests promoted by a classification and the personal rights which may be endangered thereby. Mathews v. Lucas, supra, at 504.
We believe the classifications of
It follows from what we have said that the probate court was correct in denying the petition of the petitioner. The petitioner‘s complaint in the declaratory judgment action was properly dismissed because, in the absence of service upon the attorney general, the courts of this state are without jurisdiction to determine the controversy. Accordingly, the orders appealed from are affirmed.
By the Court.—Orders affirmed.
DAY, J. (dissenting). The majority holds that Herman Caldwell, an illegitimate child, has no right to inherit from his father, Herman Blumreich, or recover for his father‘s wrongful death.1 If Herman Caldwell were a
Equal Protection.
The United States Supreme Court has not identified illegitimacy as suspect classification such as race or national origin, but it has struck down a number of classifications based on illegitimacy. In Levy v. Louisiana, 391 U.S. 68, 88 S. Ct. 1509, 20 L. Ed. 2d 436 (1968) and Glona v. Amer. Guarantee & Liability Ins. Co., 391 U.S. 73, 88 S. Ct. 1515, 20 L. Ed. 2d 441 (1968), the court invalidated an interpretation of the Louisiana wrongful death statute that precluded a wrongful death action by one whose relationship to the decedent was illegitimate. In Gomez v. Perez, 409 U.S. 535, 93 S. Ct. 872, 35 L. Ed. 2d 56 (1973), the court held that illegitimates were denied equal protection under Texas statutory and common law because, unlike legitimates, they had no right to support from their natural father. In the recent case of Trimble v. Gordon, 430 U.S. 762, 97 S. Ct. 1459, 52 L. Ed. 2d 31 (1977), a section of the Illinois Probate Aсt was held unconstitutional on equal protection grounds. Under that section illegitimates could inherit by intestate succession only from
However, a statutory classification may deny equal protection to illegitimate children even if they are not absolutely or broadly barred from a benefit. In Weber v. Aetna Cas. & Surety Co., 406 U.S. 164, 92 S. Ct. 1400, 31 L. Ed. 2d 768 (1972), the court held that it was a denial of equal protection to discriminate against unacknowledged illegitimates in providing benefits under a worker‘s compensation statute. The statute allowed unacknowledged illegitimates to recover benefits only if the statutory maximum recovery had not already been exhausted by benefits to legitimate children or acknowledged illegitimates. Under Louisiana law, an illegitimate child could be acknowledged by a declaration executed before a notary public in the presence of two witnesses, or at the registering of the birth or baptism of the child. Weber at 406 U.S. 167, fn. 3.2
These U.S. Supreme Court cases demonstrate that while illegitimacy is not a suspect classification like race, classifications that discriminate because of illegitimacy will receive more far-reaching equal protection scrutiny than laws regulating social and economic matters. Levy at 391 U.S. 71, 72. Trimble at 430 U.S. 767.
“... The tests to determine the validity of state statutes under the Equal Protection Clause have been variously expressed, but this Court requires, at a minimum, that a statutory classification bear some rational relationship to a legitimate state purpose. Though the latitude given state economic and social regulation is necessarily broad, when state statutory classifications approach sensitive and fundamental personal rights, this Court exercises a stricter scrutiny.... The essential inquiry in all thе foregoing cases is, however, inevitably a dual one: What legitimate state interest does the classification promote? What fundamental personal rights might the classification endanger?” Weber at 406 U.S. 172, 173.
The test of “rational relationship to a legitimate state purpose” is the basic equal protection analysis. The further balancing test of “... What legitimate state interest [a] classification promote[s],” versus “... What fundamental personal rights might the classification endanger?” involves further scrutiny. In statutory classifications involving illegitimates, this additional scrutiny is not a suspect classification analysis such as with race, but a middle level scrutiny requiring more than a rational relationship test.
“The status of illegitimacy has expressed through the ages society‘s condemnation of irresponsible liaisons beyond the bonds оf marriage. But visiting this condemnation on the head of an infant is illogical and unjust. Moreover, imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth and penalizing the illegitimate child is an ineffectual—as well as an unjust—way of deterring the parent. Courts are powerless to prevent the social opprobrium suffered by these hapless children, but the Equal Protection Clauses does enable us to strike down discriminatory laws relating to status of birth where—as in this case—the classification is justified by no legitimate state interest, compelling or otherwise.” Weber at 406 U.S. 175, 176.3
“... we have expressly considered and rejected the argument that a state may attempt to influence the actions of men and women by imposing sanctions on the children born of their illegitimate relationships.” Trimble at 430 U.S. 769.
However, the court has recognized that problems of proof in paternity actions do constitute a legitimate state interest,
Such problems of proof are not an adequate rationale for all types of classifications or extra requirements concerning illegitimates,
“We recognize the lurking problems with respect to proof of paternity. Those problems are not to be lightly brushed aside, but neither can they be made into an impenetrable barrier that works to shield otherwise invidious discrimination.” Gomez at 409 U.S. 538.
The purpose of
An illegitimate child born prior to his father‘s death might have some chance to prove paternity and the collateral rights in dispute here. If the father were alive after the child was born it would be a good deal more
Due Process.
The due process irrebuttable presumption analysis has been developed by the United States Supreme Court in a number of cases.4 In Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972), an Illinois statute allowed for a child to be declared a ward of the state if
The court based its ultimate holding on the equal protection clause, but also stated that the Illinois statute violated the fourteenth amendment due process clause. The court reasoned that while some fathers of illegitimate children might make unfit fathers, such fathers have parental rights, cognizable under the due process clause. Such fathers are denied due process by a presumption of their unfitness. Stanley, 405 U.S. at 657-659. The court held that while some illegitimate parents might make unsuitable parents, Mr. Stanley was entitled to a hearing to determine if he was fit. Id. at 405 U.S. 657, 658.
In Vlandis v. Kline, 412 U.S. 441, 93 S. Ct. 2230, 37 L. Ed. 2d 63 (1973), the court declared unconstitutional a statute concerning classification of non-residents for purposes of tuition at a state university. Married students whose address was outside the state at the time of application, and unmarried students whose address was outside the state any time during the twelve months preceding application were classified as nоn-residents and were ineligible for lower tuition. The court analyzed the classification as an irrebuttable presumption and held that the state could not make a statutory classification purporting to be related to residency and then deny those seeking to meet the test of residency the opportunity to present factors concerning that issue. Vlandis at 412 U.S. 451, 452. The court stated,
“... it is forbidden by the Due Process Clause to deny an individual the resident rates on the basis of a perma-
nent and irrebuttable presumption of non-residence, when that presumption is not necessarily or universally true in fact, and when the state has reasonable alternative means of making the crucial determination.” 412 U.S. 452 (emphasis added).
In Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S. Ct. 791, 39 L. Ed. 2d 52 (1974), the court considered administrative regulations that required teachers to take pregnancy leaves four or five months before birth was expected. The court determined that these regulations created an irrebuttable presumption of disability starting in the fifth or sixth month of pregnancy and, that based on medical evidence, this presumption was not clearly or universally true. The court held that absent an individual hearing the rules violated the duе process clause of the fourteenth amendment. LaFleur at 414 U.S. 644-648.
These cases demonstrate that where a statutory or regulatory classification is not clearly or necessarily related to the purpose of the rule, a constitutional irrebuttable presumption is created and an individual litigant harmed by the classification has a due process right to a hearing to show that they do not fit within the purpose of the classification.5
This case represents a complete denial of due process for Herman Caldwell and similarly situated posthumous illegitimates. The purpose of
The currently increasing number of illegitimate births poses a problem in estates and wrongful death actions. The percentage of illegitimate births nationally from 1960 to 1976 has almost tripled. In Wisconsin, the percentage of illegitimate births during the same period has more than quadrupled. Absolute numbers of illegitimate births during this period have more than doubled nationally, and almost tripled in Wisconsin.6 Among the increasing number of illegitimate children there are bound to be those who, like Herman Caldwell, are born after the death of their father. Despite this phenomenon,
The majority claims that if
“Potential heirs and claimants could not be identified with confidence until after the period of limitations had elapsed. The lurking possibility that an unknown putative child would come forward at some future time would frustrate the orderly settlement of estates and resolution of wrongful death claims.” (p. 562)
This same lurking possibility of an unknown putative child is present under
Because
“(1) Scope. Courts of record within their respective jurisdictions shall have power to declare rights, status,
and other legal relations whether or not further relief is or could be claimed. . . .” “(12) Construction. This section is declared to be remedial; its purpose is to settle and tо afford relief from uncertainty and insecurity with respect to rights, status and other legal relations; and is to be liberally construed and administered.”
In Slawek v. Stroh, 62 Wis.2d 295, 306, 307, 215 N.W.2d 9 (1974), this court held that a declaratory action is an appropriate mechanism for a putative father to establish his natural parentage of an illegitimate child and to assert parental rights arising from that status.
In Miller v. Currie, 208 Wis. 199, 242 N.W. 570 (1932), this court held that the adult child of a common law marriage could have her alleged status, as the only legitimate child of her father, determined by a declaratory judgment.
I would also hold that a declaratory judgment is an appropriate means for an illegitimate child to establish rights of parentage. By the plain language of
For these reasons I would reverse that part of the probate order that denied Herman Caldwell the right to a determination of whether or not he was an heir-at-law of the decedent, Herman Blumreich. Having determined in the probate court appeal that
I am authorized to state that Justice SHIRLEY S. ABRAHAMSON concurs in this dissent.
ROBINSON, by his Guardian ad Litem, Edward J. Coe, Plaintiff-Respondent, v. KOLSTAD, and another, Defendants-Appellants.
No. 77-351. Argued May 1, 1978. Decided June 30, 1978.
(Also reported in 267 N.W.2d 886.)
Notes
| YEAR. | WISCONSIN ILLEGITIMATE BIRTHS. | % OF TOTAL. | UNITED STATES ILLEGITIMATE BIRTHS. | % OF TOTAL. |
|---|---|---|---|---|
| 1976 | 7,143 | 11% | 468,100 | 14.8% |
| 1970 | 6,631 | 8.6% | 398,780 | 10.7% |
| 1965 | 3,906 | 4.7% | 291,200 | 7.7% |
| 1960 | 2,585 | 2.6% | 224,300 | 5.3% |
Source: Wisconsin Statistics are from the Public Health Statistical Reports, Tables 14 and 23. U. S. statistics for 1960-1970 are from Vital Statistics of U. S., Vol. 1 Natality, Table 1-29, p. 129 (1973). The 1976 figures are from the Monthly U. S. Vital Statistics Reports, Vol. 26, No. 12, p. 4 (March 29, 1978).