Hayes v. Dixon

348 S.E.2d 609, 83 N.C. App. 52, 1986 N.C. App. LEXIS 2644

Opinion

ARNOLD, Judge.

Plaintiff contends that it was error for the trial court to apply G.S. 29-19(b) in this matter where the biological father-daughter relationship between decedent and plaintiff is not a genuine issue. We do not agree.

G.S. 2949(b) in pertinent part states:

For purposes of intestate succession, an illegitimate child shall be entitled to take by, through and from:

(1) Any person who has been finally adjudged to be the father of such child pursuant to the provisions of G.S. 49-1 through 49-9 or the provisions of G.S. 49-14 through 49-16;

(2) Any person who has acknowledged himself during his own lifetime and the child’s lifetime to be the father of such child in a written instrument executed or acknowledged before a certifying officer named in G.S. 5240(b) and filed during his own lifetime and the child’s lifetime in the office of the clerk of superior court of the county where either he or the child resides.

Absent the statute, an illegitimate child has no right to inherit from his or her putative father. See Herndon v. Robinson, 57 N.C. App. 318, 291 S.E. 2d 305, appeal dismissed and cert. denied, 306 N.C. 557, 294 S.E. 2d 223 (1982). In the present case, there has been no compliance with G.S. 29-19. Therefore plaintiff has no right to inherit from decedent.

The statute mandates what at times may create a harsh result. It is not, however, for the courts but rather for the legislature to effect any change. We find no error in the application of G.S. 2949 in this case.

Plaintiff also argues that the decedent’s actions during his life constituted constructive compliance with G.S. 29-19. We disagree.

Although we are aware of cases commenting upon constructive compliance, the doctrine has not been specifically recognized in North Carolina. However, even if the doctrine were to exist, decedent’s acts in this case would not rise to the level of constructive compliance with G.S. 29-19.

Plaintiff further contends “that the plaintiff-appellant may be the ‘legitimated child’ under the laws of the state of New York within the meaning of G.S. 29-18 and therefore entitled to inherit from decedent.” We disagree.

G.S. 29-18 states:

A child born an illegitimate who shall have been legitimated in accordance with G.S. 49-10 or 49-12 or in accordance with the applicable law of any other jurisdiction, and the heirs of such child, are entitled by succession to property by, through and from his father and mother and their heirs the same as if born in lawful wedlock; and if he dies intestate, his property shall descend and be distributed as if he had been born in lawful wedlock.

We find that plaintiff has made no showing that she has been legitimated in accordance with the applicable law of New York.

Finally, we find plaintiffs argument that it was a denial of equal protection to apply G.S. 29-19 in this case to be without merit.

Affirmed.

Chief Judge HEDRICK and Judge ORR concur.