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In Re Estate of Cody





APPEAL from the Circuit Court of Cook County; the Hon. CHARLES C. LEARY, Judge, presiding.


This is an appeal from an order of the circuit court of Cook County finding Clifford Cody to be the illegitimate son and sole heir of James Cody, who died intestate.

The issues presented for review are: (1) whether Clifford Cody was proven by clear and convincing evidence to be the son of the decedent; and (2) whether the Illinois Statute (Ill. Rev. Stat. 1979, ch. 110 1/2, par. 2-2) permitting an adjudication of paternity of an illegitimate after the death of the alleged father who dies intestate, denies equal protection or due process of law to collateral heirs.

Pursuant to petition, a contested hearing on heirship was held on April 10, 1979, and April 11, 1979, to determine whether Clifford Cody was the son, and therefore the sole heir, of James Cody, deceased. Two witnesses, Clifford Cody and Toula Mae Houser, testified that he was decedent's son. Respondents called two witnesses, Daisy Mae Cody and Bernard Johnson. Respondents contend that James Cody was childless throughout his lifetime.

Clifford Cody was born in Jewell, Georgia, on November 19, 1937. He lived with his natural mother, Louise Ficklin, and his maternal grandparents, Jamie and Viola Fichlin, until the age of fourteen. He then moved to Augusta, Georgia, where he lived for several months with, among other members of the decedent's family, Annie Laura Cody (decedent's mother) and Lillian Cody (decedent's sister). At the end of that time, decedent drove to Augusta in order to bring Clifford Cody back to Chicago to live with him and his wife in their apartment at 6148 South May Street. While in Augusta, he stayed for one week in the home of Annie Laura Cody. He and Clifford Cody then returned to Chicago where they and Gertrude Cody lived together for two to three years.

Daisy Mae Cody, who had married decedent's brother, testified that the reason James Cody drove to Augusta to bring Clifford Cody home with him was because of his wife's desire to have a child.

Decedent and Gertrude Cody bore no children as a result of their marriage. For 16 years of their marriage, they lived in Chicago in an apartment building at 6148 South May Street. This building was owned by Tula Mae Hauser. Decedent and Hauser had been working together at Continental Can Company since 1945. Prior to moving into the apartment building, decedent told Hauser that Clifford Cody was his son. Subsequently, decedent and Hauser became well acquainted and decedent and Gertrude Cody moved from a basement apartment to the first floor of the same apartment building. It was while living in the first floor apartment that Clifford Cody lived with them.

Hauser and Clifford Cody became friends during this period. In her testimony, Hauser characterized Clifford Cody as her errand boy. She stated that the decedent frequently referred to Clifford Cody as his son in her presence and in the presence of her husband. She further stated she was present at a company picnic where decedent introduced Clifford Cody as his son to more than 25 people. Hauser was at all times aware that Gertrude Cody was not Clifford Cody's natural mother.

While living with decedent and his wife, Clifford Cody was often in the company of Bernard Johnson, decedent's nephew, who testified at the hearing. Clifford Cody attended Engelwood Night School while in Chicago. However, the decedent felt Clifford was keeping bad company, and neither he nor his wife were able to care for Clifford during daytime hours. Therefore, the decedent sent Clifford back to Augusta. Bernard Johnson stated that he was told by the decedent at that time that he, James Cody, was sending Clifford back down south.

For the next several years, Clifford Cody lived once again in the home of Annie Laura Cody. In 1959, he left Augusta. He lived in Virginia for two months and then moved to New York, where he has lived ever since. For a period he lived with Lillian Cody, decedent's sister, who had earlier moved to Brooklyn, New York.

From the time that Clifford left their home, he was in periodic communication with the decedent and Gertrude Cody. Also, Gertrude Cody periodically sent money to him.

James Cody died on April 14, 1978. Shortly before that date, he suffered a severe stroke. Bernard Johnson had telephoned Clifford to advise him of the stroke. Clifford then telephoned Augusta and was told by James Cody's sister, Annette, to hurry to Augusta because of the seriousness of decedent's condition. Clifford was in the process of preparing for his trip to Augusta when he received a telephone call from Bernard Johnson advising that James Cody had died.

Clifford drove with decedent's nephew, Jimmy Cody, from New York to Augusta to attend the funeral. While in Augusta, Clifford stayed in the home of Daisy Mae Cody, decedent's sister-in-law. Clifford signed pertinent papers relating to decedent's funeral. Also, Daisy Mae Cody, who was in charge of funeral arrangements, wrote in James Cody's obituary that Clifford Cody was the son of James Cody. Clifford had no input in the content or drafting of the obituary.

Clifford left Augusta shortly after James Cody's funeral. Prior to his leaving, however, Daisy Mae Cody gave him the decedent's possessions. Among these possessions was an envelope which contained, among other items, papers pertaining to a group insurance policy insuring the life of James Cody. This envelope was originally mailed to Augusta by Bernard Johnson, who had received it from Estelle Smith, Gertrude Cody's sister. Prior to James Cody's death, Clifford was unaware of the existence of the insurance policy. On June 3, 1978, Clifford ...

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