APPEAL from the Circuit Court of Cook County; the Hon. JOHN J.
HOGAN, Judge, presiding.
MR. JUSTICE HALLETT DELIVERED THE OPINION OF THE COURT:
An order was entered in the circuit court of Cook County, County Department, Probate Division, declaring that the deceased Louis Karas left him surviving Evangelia Karas, his widow, as his only heir at law and next of kin. Thereafter a petition, later amended, was filed by Mary Sodermark seeking to vacate that order. Upon motion of the widow the said amended petition was stricken and dismissed. The appeal now before us is from that order.
The petitioner states the two issues as follows:
"1. Does the Illinois Probate Act permit a child born out of wedlock and acknowledged by her father to inherit from her intestate father in the absence of intermarriage between her parents?
2. If the Illinois Probate Act denies an illegitimate child the right to inherit from her intestate natural father, is this denial a violation of the Equal Protection and Due Process clauses of the Fourteenth Amendment to the United States Constitution and of Sections Two and Eighteen of Article I of the Constitution of the State of Illinois."
We answer these both in the negative and affirm.
The circumstances surrounding this petition and appeal may be summarized as follows: Louis Karas died on July 8, 1971. In December of that year an order was entered in the probate division of the circuit court of Cook County declaring the respondent to be his sole heir. An administrator was appointed for the estate, as Louis Karas died intestate. In November of 1972, Mary Sodermark filed a petition in the probate court seeking to vacate the order of heirship previously entered, and to have herself declared an heir of Louis Karas, alleging that she was his acknowledged natural daughter, although the deceased and her mother had never married. The respondent filed a motion to strike and dismiss the amended petition of Mrs. Sodermark, pursuant to the provisions of section 12 of the Illinois Probate Act (Ill. Rev. Stat. 1971, ch. 3, par. 12), on the ground that, since no marriage had ever occurred between the petitioner's parents, that section precluded Mrs. Sodermark from being considered as an heir of Louis Karas. The court held that the section did have such an effect, and that the section did not violate any of the petitioner's constitutional rights. Also, for the purpose of this ruling only, the court found that Mrs. Sodermark was the acknowledged daughter of Louis Karas, and that Louis Karas had never married her mother. Mrs. Karas does not concede the issue of parentage, and the administrator of the estate of Louis Karas has not taken a position on any of these matters.
As above stated, the first issue as stated by the petitioner, is:
"Does the Illinois Probate Act permit a child born out of wedlock and acknowledged by her father to inherit from her intestate father in the absence of intermarriage between her parents?"
The argument under this issue is not really that the Illinois Probate Act by its terms permits such a child to inherit under said facts; rather, it is conceded that the statute does not, but the contention made is that, because the common law rule that "a bastard is kin to no one" (Blackstone, Vol. 1, Commentaries on the Law of England, p. 459) was created by the courts, they have the power to and should now alter the common law, which is recognized, although softened, by said statute.
• 1 This same argument, involving this same statute, was presented and fully disposed of (Krupp v. Sackwitz (1961), 30 Ill. App.2d 450, 174 N.E.2d 877), where, under very similar facts, the Appellate Court for the Fourth District, through Mr. Justice Scheineman, in affirming a like order at pages 452-454, said:
"The theory advanced for plaintiff is that the law imposes undue hardship upon her and deprives her of her natural right to inherit. It is argued that the modern trend of thought is to be more liberal toward the illegitimate child, and that the courts should disregard precedent and declare a public policy on the subject, to the extent of conferring on illegitimate the status of heirs on the paternal side.
There is no doubt that the past century has seen considerable change in the public attitude toward the child born out of wedlock. At common law it could not inherit from anyone. As stated by Blackstone, Vol. 1, p. 459, such a child `cannot be heir to anyone, neither can he have heirs but of his own body.'
The harshness of these rules has been tempered by statutes, which conferred reciprocal rights of inheritance upon mother and child, and required some monetary contribution ...