Castle, Chief Judge, and Cummings and Kerner, Circuit Judges.
Plaintiffs, aliens, bring this suit under 28 U.S.C. § 1332, seeking to divest the County of La Salle of property which escheated under Illinois law after the death of Walter Clark. The district court entered judgment for the plaintiffs from which this appeal is taken.
Walter Clark died in 1950, willing all his assets to persons who predeceased him. Under the testamentary laws of the State of Illinois, no kindred having been found, the estate of Walter Clark escheated to La Salle County, Illinois, in 1956. Ill.Rev.Stat. c. 3, § 11, para. 7. After the property escheated, various relatives of Walter Clark appeared. In 1960, Nellie Gregory and Harold Clark, Administrator for the Estate of Betsy Alice Clark, who were first cousins of Walter Clark, illegitimate children of an aunt of the deceased, filed suit in the Circuit Court of La Salle County under the Illinois Escheat Act. Ill.Rev.Stat. c. 49, § 7. Joan Baxter and James Clark who were children of William Henry Clark, a first cousin who did not die until 1951, sought to intervene in the Circuit Court but filed their motion for intervention too late. The Illinois Circuit Court dismissed the suit and Gregory appealed. On appeal, Eva Warner and others, claiming as first cousins once removed, sought to intervene but the Illinois Appellate Court denied intervention. The Illinois Appellate Court held that the illegitimates, Gregory and Harold Clark, as administrator, could recover from La Salle County.
Meanwhile, Eva Warner and the other first cousins once removed filed suit in federal district court. All parties were joined in the action except that Joan Baxter and James Clark were denied the right to intervene because of the Statute of Limitations. The district court after staying the proceedings pending the decision of the Illinois Appellate Court in Gregory v. La Salle County, 91 Ill.App.2d 290, 234 N.E.2d 66 (1968), held that the first cousins once removed were entitled to collect. The illegitimates and the County of La Salle appeal.
Nellie Gregory and Betsy Alice Clark claim as illegitimate first cousins. At issue is whether their status as illegitimates bars them from collecting under the Illinois Statute in effect at the death of Walter Clark.
Under Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938), the federal courts are to look to the state law to decide questions of substantive law. Appellees contend that "* * * The Erie case directly envisioned state law as declared by the highest state court," Moore, Federal Practice, 2d ed., Vol. 1 A, p. 3301, and since the Illinois Supreme Court's interpretation of the Illinois Statute in effect at the death of Walter Clark is that illegitimates cannot inherit from collaterals, Spencer v. Burns, 413 Ill. 240, 108 N.E.2d 413 (1952), Nellie Gregory and Betsy Alice Clark cannot recover.
Erie and its progeny do not require an automatic application of the last highest state court determination. Professor Corbin in describing the task of the federal court in applying state law said:
When the rights of a litigant are dependent on the law of a particular state, the court of the forum must do its best (not its worst) to determine what that law is. It must use its judicial brains, not a pair of scissors and a paste pot. Our judicial process is not mere syllogistic deduction, except at its worst. At its best, it is the wise and experienced use of many sources in combination -- statutes, judicial opinions, treatises, prevailing mores, custom, business practices; it is history and economics and sociology, and logic, both inductive and deductive. Corbin, The Laws of Several States, 50 Yale L.J. 762, 775 (1941).
Justice Frankfurter struck the same chords in his concurring opinion in Bernhardt v. Polygraphic Company of America, Inc., 350 U.S. 198, 205-212, 76 S. Ct. 273, 100 L. Ed. 199 (1956), where he looked behind the Vermont Supreme Court's decisions to determine the present status of Vermont law.
The Illinois Appellate Court in Gregory v. County of La Salle, 91 Ill.App.2d 290, 234 N.E.2d 66 (1968), has concluded that the Illinois Supreme Court's interpretation of Section 12 of the Probate Act in Spencer v. Burns, 413 Ill. 240, 108 N.E.2d 413 (1952), was not correct under the application of the Supreme Court's rules of construction. At the death of Walter Clark, Section 12 of the Illinois Probate Act provided:
An illegitimate child is heir of his mother and of any maternal ancestor; and in all cases where representation is provided for by this Act an illegitimate child represents his mother and his lawful issue represents him and take, by descent, any estate which the parent would have taken if living.
Prior to the consolidation and revision of the laws of intestacy into the Probate Act in 1939, the predecessor of § 12 reads as follows:
An illegitimate child shall be an heir of its mother and any maternal ancestor, and of any person from whom its mother ...