In the Matter of the Estate of Arlyn L. ERBE, Deceased.
No. 16775.
Supreme Court of South Dakota.
Argued March 20, 1990. Decided June 27, 1990.
457 N.W.2d 867
HENDERSON, Justice.
Property is considered in transit when it is moving from one location to another. This does not exclude temporary stops, incidental delays, or some deviation from the planned route of travel. However when the property to be transported has reached its destination it is generally no longer considered in transit.
Lariviere v. New Hampshire Fire Ins. Co., 105 N.H. 73, 75, 193 A.2d 13, 15 (1963) (citation omitted); accord Boonton Handbag Co., Inc. v. Home Ins. Co., 125 N.J.Super. 287, 310 A.2d 510 (App.Div.1973). The Days Inn was not the destination of Prokop‘s property. Prokops concede they did not intend to permanently reside at the Days Inn. It was simply a temporary stop until they could acquire permanent housing. Since the property had not yet reached its final destination when it was stolen, it was still in transit. Consequently, the ten percent “in transit” limitation is applicable. The exposure of the property to theft or damage substantially increased as a result of this temporary stop and justified the policy‘s “in transit” limitation.
Vicki L. Tucek, Rice & Ewinger Law Firm, Aberdeen, for appellant.
Jack R. Von Wald, Selby, for appellees and co-executrixes, Eunice Mueller and Audrey Rabenberg Parent.
PROCEDURAL HISTORY/ISSUES
This case involves a claim of inheritance brought by Terry Wayne Lassle (Lassle), against the estate of the decedent, Arlyn L. Erbe (Erbe), who died testate on December 14, 1987. His will nominated and appointed Audrey Rabenberg Parent (Parent) and Eunice Mueller (Mueller), the decedent‘s sisters, as co-executrixes of the will.
After the restraining motion was served, the co-executrixes made a motion to Quash and Terminate the Documents filed by Lassle in September 1988. The co-executrixes also requested Lassle‘s Motion for a Restraining Order be denied.
On February 1, 1989, Lassle filed a response to the co-executrixes’ Motion to Quash and Terminate. A hearing was held regarding the numerous motions on March 21, 1989. On that day, the judge rendered a Memorandum Decision stating that the requirements of
On May 18, 1989, a hearing was held to dispose of all the pending motions. (Lassle also filed a Motion for Blood Tests and Notice Hearing). At this hearing, the court found that
On appeal Lassle presents six issues:
- Is the application of
SDCL 29-1-15 unconstitutional and does it deny an illegitimate child equal protection when he asserts a claim for inheritance in testate proceedings? - Must an illegitimate child meet the requirements of
SDCL 29-1-15 before he may assert a claim for inheritance as a pretermitted heir underSDCL 29-6-10 when his father dies testate? - Is an illegitimate child precluded from bringing a declaratory action to prove heirship after his father dies testate?
- May blood tests be ordered to establish heirship by an illegitimate child?
- May an estate and its executrixes be restrained from filing a final account, decree and distribution until heirship is proved by an illegitimate child?
- Were Lassle‘s instruments properly quashed and terminated based on a strict construction of
SDCL 29-1-15 ?
-Holding-
We affirm the trial court‘s holding that Lassle is not a legal heir of Erbe‘s estate. It is unnecessary to address issues 3 through 6, based upon our decision.
FACTS
Erbe died testate on December 14, 1987, in Bowdle, South Dakota. He left two living sisters, Parent and Mueller, according to the terms of his will to share in his estate equally.
Approximately 32 years before his death, Erbe allegedly had a liaison with Hilda Lassle (Hilda). Hilda had come to the Erbe farm to work in about 1946 or 1947 and left after becoming pregnant in June of 1956.
Hilda Lassle gave birth to a son, Terry Wayne Lassle, on June 20, 1956. Hilda apparently told members of Erbe‘s family that Erbe was Terry‘s father. Erbe never admitted to Hilda that he was Terry‘s father.
After Hilda was discharged from the hospital, Earl Erbe (Earl), Arlyn Erbe‘s father, made arrangements for Hilda and her baby to stay with Parent, Arlyn Erbe‘s sister. Parent arranged for blood tests to be performed but the results of such tests are unknown at this time. Parent also arranged for the child‘s baptism and she and her husband were the child‘s sponsors. Hilda stayed at Parent‘s farm for two to three months at which time Earl moved Hilda and her son to another residence, the Senns. After three to four months, Hilda and the baby moved to Bismarck, North Dakota with her sister.
DECISION
I. As applied to the facts in this case,
The rights of illegitimate children and statutory classifications which tend to limit those rights have undergone close examination by the courts of this nation in recent years. It is well-settled law that classifications based on illegitimacy, while not being subject to “strict scrutiny,” must be substantially related to permissible state interests. Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978); Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977). These statutes, which tend to differentiate between illegitimate and legitimate children, must bear some rational relationship to legitimate state purposes. As applied to inheritance statutes, the Supreme Court has recognized that the State may apply “a more demanding standard” for illegitimate children who seek to inherit from their father‘s estate in order to promote the efficient administration of a decedent‘s estate and to avoid spurious claims arising out of paternity actions. Lalli v. Lalli, supra, 99 S.Ct. at 523.
SDCL 29-1-15 . Inheritance by or through the illegitimate child. Every illegitimate child is an heir of the person who, in writing, signed in the presence of a competent witness, acknowledges himself to be the father of such child; and in all cases is an heir of his mother; and inherits his or her estate, in whole or in part as the case may be, in the same manner as if he had been born in lawful wedlock. He shall represent his mother equally with her legitimate children by inheriting any part of the estate of her kindred, either lineal or collateral; but he does not represent his father by inheriting any part of the estate of his kindred, either lineal or collateral, unless before his death his parents shall be intermarried, and his father after such marriage acknowledges him as his child, or adopts him into his family; in which case such child and all the legitimate children are considered brothers and sisters, and on the death of either of them, intestate, and without issue, the other inherit his estate, and are heirs as hereinbefore provided, in like manner as if all the children had been legitimate; saving to the father and mother respectively their rights in the estates of all the children in like manner as if all had been legitimate.
In light of the fact that the United States Supreme Court recognizes that there are legitimate state interests which can justify treating legitimate and illegitimate children differently, we find that Lassle has failed to carry his burden of proving that
In Re Estate of Blumreich, 84 Wis.2d 545, 267 N.W.2d 870 (1978) is a case which is particularly instructive in this analysis. Blumreich was a constitutional challenge to the Wisconsin intestacy statute based on the Trimble ruling. At the time of this action, Wisconsin recognized paternity orders entered during the lifetime of then deceased fathers. Wisconsin law did not allow illegitimates to bring posthumous paternity actions to establish a right to inherit under the state‘s intestacy statute.
Facing an issue similar to that which presented itself before Lalli, the Wisconsin Court found Wisconsin‘s intestacy statute constitutional:
“Applying these principles to the instant case, we conclude that sec. 852.05(1), Stats., constitutes a ‘carefully tuned’ statute sensitive to the conflicting considerations emphasized in Trimble, supra. There is no evidence that this statute reflects an impermissible effort to influence the conduct of parents by imposing sanctions on their illegitimate children. Indeed, the statutory provisions do not distinguish between legitimates and illegitimates so much as they distinguish among various categories of illegitimates, and they specifically allow proof of paternity by either of the two methods identified in Trimble, supra, as accurate and reliable: prior adjudication and formal acknowledgment. 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 . . . [97 S.Ct.] at 1466. 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 (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 the accusers. Information about his blood, which might conclusively 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 § 852.05(1).” 267 N.W.2d at 877.
We do not question that there will be some illegitimate children who would be able to establish their relationship to their deceased father without serious disruption of the administration of estates and that, as applied to such individuals,
II. The trial court correctly foreclosed Lassle from benefiting from the pretermitted heir statute.
Lassle argues that he is a pretermitted heir within the purview of
Lassle maintains the position on appeal that despite the provisions of
In Karger, the Minnesota Supreme Court said:
Although this Court has never interpreted the meaning of the word “child,” a vast number of courts are in agreement with the court in Karger. The majority rule in the United States seems to be that words such as “children” are construed to mean legitimate children and sometimes recognized illegitimate children, but not to include unrecognized illegitimate children. Annot., 34 A.L.R.2d 455 (1954) and cases there cited. See also, Johnson v. Mariscal, 620 S.W.2d 905 (Tex.App. 2nd Dist. 1981) (by virtue of statute defining “child” for purposes of probate code by excluding unrecognized illegitimate child of father, recognized illegitimate child of father may inherit from father without other statutory legitimization); Remkiewicz v. Remkiewicz, 180 Conn. 114, 429 A.2d 833 (1980) (under statute providing authority to order support for minor children, the word “children” means legitimate children); Ivy v. Illinois Cent. Gulf R. Co., 510 So. 2d 520 (Miss.1987) (“children” under Federal Employers’ Liability Act means children out-of-wedlock as well as children in wedlock, provided paternity is established as required by state statutes); Scales v. Scales, 564 S.W.2d 667 (Tenn.App.1977) (Generally, absent clear evidence of contrary intention, words such as “children” will be construed to mean legitimate children and not include illegitimate ones).
In light of this examination of the inheritance rights of legitimate children, recognized illegitimate children and unrecognized illegitimate children, we now determine the rights of Lassle. It is uncontroverted that he is illegitimate, i.e., one born out of lawful wedlock. No evidence has been presented that any statutory means of legitimization has occurred. Lassle is required to show that he was either legitimized under
Affirmed.
MORGAN, SABERS and MILLER, JJ., concur.
WUEST, C.J., dissents.
WUEST, Chief Justice (dissenting).
I would reverse. It offends my sense of justice that an illegitimate child cannot inherit from his father unless he is acknowledged by the father as provided by
Essentially,
In sum, the Florida Supreme Court recognized the Florida statute unfairly discriminated against illegitimate children. It further recognized the state‘s interest in the orderly descent of property could be easily preserved by imposing a higher degree of proof for paternity than that which is used for maternity actions. As a result, the Court determined the Florida statute was not rationally related to legitimate state interests and thus was unconstitutional. Subsequent to the Burris decision, a Florida Appellate Court held a person seeking to establish paternity must do so by clear and convincing evidence. In Re Estate of Odom, 397 So.2d 420, 425 (Fla.App.1981). Thus, for several years it has been the law in Florida that an illegitimate child may inherit from an alleged father simply by presenting clear and convincing evidence that the person whom he seeks to inherit from is his natural father.1
In this case I would apply the reasoning of the Burris court. Other jurisdictions maintain a rule that paternity may be proved by an illegitimate child by clear and convincing evidence. See Odom, supra; Weber v. Anderson, 269 N.W.2d 892, 895 (Minn.1978); C.L.W. v. M.J., 254 N.W.2d 446, 450 (N.D.1977). In fact, § 2-109 of the Uniform Probate Code says an illegitimate child should be allowed to prove paternity by the presentation of clear and convincing evidence in a formal action. In light of these facts, I find it extremely difficult to believe a state‘s interest in the orderly descent of property would not be preserved were this Court to hold paternity may be established by clear and convincing evidence.
Finally, I do not believe that
As evidenced by the recent United States Supreme Court decisions, as well as the Ohio Supreme Court decision in White v. Randolph [59 Ohio St.2d 6], 391 N.E.2d 333 (1979) the bottom line to denying an illegitimate child equal inheritance rights is that there is a substantial problem of proof of paternity, especially after the alleged father is dead. Today, however, we are entering into a new area. Science has developed a means to irrefutably prove the identity of an illegitimate child‘s father. No longer are we dependent upon fallible testimony, nor are we concerned that the decedent cannot be present to defend himself. The accuracy and infallibility of the DNA test are nothing short of remarkable. We live in a modern and scientific society, and the law must keep pace with these developments.
In conclusion it is my opinion the appellant should be permitted to maintain this action but must prove paternity by clear and convincing evidence with DNA testing if available, or any other relevant evidence.