12 Mass. App. Ct. 52 | Mass. App. Ct. | 1981
Upon report from a Probate Court judge pursuant to G. L. c. 215, § 13, we are asked three questions which, in light of Lowell v. Kowalski, 380 Mass. 663 (1980), are susceptible of restatement as one, viz.: is an illegitimate child the heir of his or her father in circumstances where the father has not acknowledged the child as his in writing? That question was left open in Lowell. Id. at 670.
Lowell v. Kowalski, supra, held that an illegitimate child whose father acknowledged her as such is entitled to share in the distribution of his estate. That the decedent acknowledged Cynthia and Steven as his children was stipulated by the parties’ statement of agreed facts and that agreement obviates any further inquiry by us for other evidence of acknowledgment.
The elder Karvelas died some eleven months after the effective date of the Equal Rights Amendment (E.R.A.) to the Massachusetts Constitution,
It is not entirely clear upon what action in the Probate Court the judge based his reservation and report of the case. Chapter 215, § 13, as amended through St. 1975, c. 400, § 59, consists of two sentences.
Under the second sentence of § 13, the probate judge may report cases in which an interlocutory judgment, decree or order has been made which, in the opinion of the judge, “so affects the merits of the controversy that the matter ought, before further proceedings, to be determined by the appeals court.”
Because nothing in the record discloses whether the Probate Court judge had decided that Cynthia was qualified to be the administrator of the estate of her father and the record is barren of facts which would enable us so to decide, the case is not a proper one for report under the first sentence of § 13; i.e., we are in no position to order entry of a judgment.
If a judge makes a report under the second sentence of § 13, i.e., as to the correctness of an interlocutory judgment, decree or order, the report should identify the significant order he has in mind. This was not done in the report before us. From an examination of the docket we observe that the judge denied a motion by Koscotas (the brother) to strike Cynthia’s appearance and to dismiss her petition. We deduce that it is the correctness of that action which the judge sought to bring before us. Since so little in the way of taking of evidence and action by the judge was necessary prior to deciding whether to appoint Cynthia and to dismiss Koscotas’ petition, the case was less than apt for use of the report procedure on an interlocutory order. Treating the report as from the denial of Koscotas’ motion, we answer that the motion was correctly denied because the elder
The case is remanded to the Probate Court for further proceedings consistent with this opinion.
So ordered.
The quoted material is from the statement of agreed facts.
For conduct which evidences acknowledgment of paternity, see Houghton v. Dickinson, 1,96 Mass. 389, 391-392 (1907).
Children are of first degree, brothers of second degree. Lombard, Probate Law & Practice § 277, at 354 (1962).
Article 106 of the Amendments to the Constitution of the Commonwealth.
In Trimble v. Gordon, 430 U.S. 762, 765-766 (1977), the United States Supreme Court held an Illinois statute similar to G. L. c. 190, § 7 (prior to its amendment in 1980), unconstitutional on equal protection grounds. That case was decided before the elder Karvelas died.
As the case involves the administration of an estate, neither Mass.R. Civ.P. 64, 365 Mass. 730 (1974), nor Mass.R.Dom.Rel.P. 64 governs the report procedure. See Mass.R.Dom.Rel.P. 1.