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05/28/96 ESTATE RUDY JANUSSEK v. COOK COUNTY

May 28, 1996

IN RE ESTATE OF RUDY JANUSSEK, DECEASED. (CHRISTEL GOLLUB, GABRIELE STEINBACH, AND RAINER JANUSSEK, PETITIONERS-APPELLANTS,
v.
COOK COUNTY, ILLINOIS, RESPONDENT-APPELLEE).



Appeal from the Circuit Court of Cook County. Honorable Frank M. Siracusa, Judge Presiding.

Presiding Justice Hartman delivered the opinion of the court: DiVITO and Burke, JJ., concur.

The opinion of the court was delivered by: Hartman

PRESIDING JUSTICE HARTMAN delivered the opinion of the court:

Decedent, Rudy Janussek, was born illegitimate in August 1919, at Berlin, Germany. His father, Kasimir Siegismund Janussek, successfully petitioned the German court for a declaration of legitimacy in December 1924. Decedent emigrated to the United States and was naturalized in 1956. He became a domiciliary of Cook County and died intestate in Chicago on November 22, 1991, at the age of 72. The Cook County Public Administrator filed a petition in the circuit court to probate his estate. On December 19, 1991, the court entered an order of unknown heirs and issued letters of administration to the public administrator. An inventory valued decedent's personal estate at $624,968 and his real estate, which was located in Illinois, at $125,000.

On July 27, 1994, petitioners Christel Gollub, Gabriele Steinbach, and Rainer Janussek, all residents of Germany, filed a petition for amended heirship and for a hearing to establish their right as heirs of decedent, claiming that they were his paternal siblings of the half blood. The circuit court denied their petition to amend heirship, and they appeal.

The following undisputed allegations were received by the circuit court during the hearing on the petition. Decedent was born out of wedlock, his parents, Elli Emma Frieda Galle and Kasimir Siegismund Janussek, never having married. Shortly after decedent's birth, he was cared for by his father's family, who resided in Germany. In 1923, decedent's father petitioned the German court for a declaration of legitimacy. The Landgericht, the German court, declared decedent legitimate on December 17, 1924, and he received the family name, Janussek, pursuant to German law.

Decedent's father married Emma Auguste Schroeder in 1933. Petitioner Gollub, now living in Germany, is the sole surviving child of this marriage. Decedent's father divorced Schroeder and married Janina Wladislawa Skrecki in 1941. Petitioners Steinbach and Rainer Janussek, both of whom also live in Germany, are the surviving children of this second marriage.

Decedent's father died in Germany in 1979, never having had or adopted any other children. Decedent's natural mother predeceased him, and any maternal heirs are unknown.

Following argument, the circuit court denied the petition to amend heirship on January 13, 1995. On June 19, 1995, the court denied petitioners' motion for reconsideration and found that there was no just reason for delaying enforcement of the order under Supreme Court Rule 304(a) (155 Ill. 2d R.304(a)). Petitioners timely filed a notice of appeal.

This appeal presents a disputed question of law, which this court reviews de novo. American Health Care Providers, Inc. v. The County of Cook, 265 Ill. App. 3d 919, 923, 638 N.E.2d 772, 202 Ill. Dec. 904 (1994).

Under the common law, an illegitimate child was known as filius nullius, the son of no one. Zepeda v. Zepeda, 41 Ill. App. 2d 240, 255, 190 N.E.2d 849 (1963). He had no rights under the law; he could not inherit, and he could have no heirs except his widow and the issue of his own body. Zepeda, 41 Ill. App. 2d at 255-56. For nearly 170 years in Illinois, legislation has ameliorated some of the oppression visited upon this unfortunate class. In re Estate of Karas, 61 Ill. 2d 40, 46, 329 N.E.2d 234 (1975). Under our present statute, a child born out of wedlock is deemed legitimate if his parents intermarry and his father acknowledges him to be his child; he may inherit from his mother and his maternal ancestors; and not only may his wife and descendants inherit from him, but his mother and her descendants may also. Ill. Rev. Stat. 1991, ch. 110 1/2, par. 2-2(d), (h) (now 755 ILCS 5/2-2(d), (h) (West 1994)). See generally Zepeda, 41 Ill. App. 2d at 256-57.

The Illinois Probate Act of 1975 (the Probate Act) (Ill. Rev. Stat. 1991, ch. 110 1/2, par. 1-1 et seq. (now 755 ILCS 5/1-1 et seq. (West 1994))) places the acknowledged father of an illegitimate child on different footing than the natural mother. In Trimble v. Gordon, 430 U.S. 762, 52 L. Ed. 2d 31, 97 S. Ct. 1459 (1977), the Supreme Court held unconstitutional the Illinois scheme which precluded an illegitimate child from inheriting by intestate succession from his father who had acknowledged paternity, but which allowed legitimate children to inherit by intestate succession from their fathers. Illinois since has remedied that constitutional infirmity by allowing intestate succession from the father and paternal ancestors where the father "has acknowledged paternity" or "has been adjudged to be the father" of the illegitimate child. Ill. Rev. Stat. 1991, ch. 110 1/2, par. 2-2(h) (now 755 ILCS 5/2-2(h) (West 1994)). Nevertheless, there remains a void with respect to the inheritance rights of the acknowledged father and his descendants from the illegitimate child.

That is the situation in the case sub judice. Decedent died with no surviving spouse or descendants, and his parents never married. Therefore, petitioners, the descendants of decedent's father, can inherit from decedent's estate only if he was "legitimate" at the time of his death for purposes of the Probate Act. See Ill. Rev. Stat. 1991, ch. 110 1/2, par. 2-1(d), (h) (now 755 ILCS 5/2-1(d), (h) (West 1994)) (allowing the kindred of the whole or half blood of a decedent who died legitimate to inherit by intestate succession). We conclude that decedent was legitimate at the time of his death for the reasons which follow.

Decedent's birth in Germany introduces a foreign element in this case and therefore presents a conflict of laws question. See 15A C.J.S. Conflict of Laws § 1(2), at 367 (1967). An Illinois child born out of wedlock becomes legitimate by the intermarriage of his parents and the acknowledgement of paternity by the father. Ill. Rev. Stat. 1991, ch. 110 1/2, par. 2-2(h) (now 755 ILCS 5/2-2(h) (West 1994)). Under the German Civil Code (GCC), such a child may obtain the legal status of legitimacy through a declaration by a German court. Burgerliches Gesetzbuch (Civil Code) BGB § 1736. Decedent here, although considered illegitimate under ...


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