Herndon v. Robinson , 57 N.C. App. 318 ( 1982 )

291 S.E.2d 305 (1982)

Lenn Ray HERNDON
v.
LaRhue H. ROBINSON, individually and as Successor Administrator for the Estate of Gartha A. Herndon, Deceased, Clara Herndon Hatley, Dillie Herndon Wilson, Hattie Bell Herndon Teaseley, Viola Herndon Stroud, Raymond Burnette, Juanita Burnette Deans, Evelyn Burnette Morrow, Bernice Burnette Alston, Minnie Burnette Byers, Ruby Burnette Philyaw, Odessa Burnette Thompson, William Henry Herndon, Thurman Herndon, Otis Herndon, Vernon Herndon, Jr., Madge Herndon Page, James W. Herndon, Erseldine Herndon Bailey, Leon Walker Herndon, Kathleen Herndon Burt and Rufus L. Edmisten, Attorney General of the State of North Carolina.

No. 8110SC902.

Court of Appeals of North Carolina.

May 18, 1982.

Ashmead P. Pipkin, Raleigh, for plaintiff-appellant.

Winston, Blue, Larimer & Rooks by David M. Rooks III, Chapel Hill, for the individual defendants-appellees.

Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. Charles J. Murray, Raleigh, for Rufus L. Edmisten, Atty. Gen. of the State of North Carolina, defendant-appellee.

HARRY C. MARTIN, Judge.

Plaintiff challenges the constitutionality of N.C.G.S. 29-19 (1976 & Cum.Supp. 1981), which permits an illegitimate child to inherit by, through and from his putative father if proof of paternity has been established by any one of the following methods: (1) a judicial decree entered during the life of the putative father; (2) the father's written admission of paternity "executed or acknowledged before a certifying officer named in G.S. 52-10(b) and filed during his own lifetime and the child's lifetime" in the appropriate office of the clerk of superior court; (3) the father's acknowledgment of paternity in his duly probated will. A child may also be legitimated by the intermarriage of the mother and putative father at any time after the illegitimate child's birth. N.C.Gen.Stat. § 49-12 (1976). Absent the statute, plaintiff would have no right to inherit from his putative father. Jolly v. Queen, 264 N.C. 711, 142 S.E.2d 592 (1965).

There is nothing in the record to disclose, nor does plaintiff suggest, that the provisions of N.C.G.S. 29-19 have been complied with. It is plaintiff's position that the facts of his case, assuming for all purposes that he is the natural son of the deceased, prove fatal to the constitutionality of the statute.

Our Supreme Court in Mitchell v. Freuler, 297 N.C. 206, 254 S.E.2d 762 (1979), addressed this issue on strikingly similar facts and held, upon the authority of Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978), that N.C.G.S. 29-19 and those statutes in pari materia "are substantially related to the lawful State interests they are intended to promote." 297 N.C. at 216, 254 S.E.2d at 768. We are thus bound by the decision in Mitchell finding no violation of the equal protection and due process clauses of the United States Constitution by the statute. See also Outlaw v. Trust Co., 41 N.C.App. 571, 255 S.E.2d 189 (1979).

Plaintiff would have us reexamine the holding in Mitchell in light of our North Carolina Constitution. In the alternative, he contends that his evidence amply supports "constructive" compliance with the mandate of N.C.G.S. 29-19(b)(2), acknowledgment by written instrument filed during the lifetime of the putative father. Plaintiff's arguments are ably presented and well conceived. Nevertheless, we remain unpersuaded.

Plaintiff contends that although he is unable to show strict compliance with the acknowledgment and filing requirements of N.C.G.S. 29-19(b)(2), he has complied with the spirit of the provision by offering numerous written documents, signed by Mr. Herndon, which clearly acknowledge paternity. Arguably, none of these writings admits of a conscious intent to establish paternity for purposes of intestate succession. Nevertheless, plaintiff argues, if the purpose of the statute is to safeguard the just and orderly disposition of a decedent's property and to ensure the dependability of titles passing under intestate laws, he has fulfilled this purpose.

The formalities of N.C.G.S. 29-19(b)(2), however, serve a dual purpose. As a method for establishing paternity, a written instrument acknowledging paternity, executed and filed with the clerk of superior court, assures the requisite degree of certainty. The formalities further assure that the decedent intended that the illegitimate child share in his estate, much in the same way that a father intentionally excludes legitimate children as beneficiaries under his will. But, just as a father must act to exclude a legitimate child from sharing in his estate, he must also act to include an illegitimate child. The distinction is an important one. Yet, our statute does recognize certain acts permitting inclusion, and our Supreme Court has deemed these constitutionally sufficient.

We find that plaintiff's constitutional arguments, whether viewed against the federal or our state constitution, have been answered in Mitchell, supra. It is for our legislature or our Supreme Court to reevaluate the existing law as to any shortcomings and its intended purposes. Nor can we agree, upon the facts before us, that plaintiff's proof rises to the dignity of constructive compliance with N.C.G.S. 29-19(b)(2). Although there is little doubt that plaintiff is, in fact, the natural son of Gartha Herndon, the written documents he offers were executed for purposes other than to establish paternity as contemplated under the statute.

Affirmed.

MORRIS, C. J., and CLARK, J., concur.