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11/27/96 ESTATE BARBARA L. BARTOLINI v. JACQUELINE

November 27, 1996

IN RE ESTATE OF BARBARA L. BARTOLINI, DECEASED. RUSSELL C. ENKE, PLAINTIFF-APPELLANT,
v.
JACQUELINE BARTOLINI, INDEPENDENT ADMINISTRATOR OF THE ESTATE OF BARBARA L. BARTOLINI, DECEASED, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. Honorable Jeffrey A. Malak, Judge Presiding.

As Corrected January 7, 1997. Released for Publication January 15, 1997.

The Honorable Justice Gordon delivered the opinion of the court: Cousins, Jr., and Hourihane, JJ., concur.

The opinion of the court was delivered by: Gordon

JUSTICE GORDON delivered the opinion of the court:

In this case, the Circuit Court of Cook County, Probate Division, entered an order declaring heirship to the intestate estate of Barbara L. Bartolini, wherein the decedent's maternal relatives were determined to be her only heirs. The plaintiff, Russell Enke, a half-brother of the decedent (the son of the decedent's father but of a different mother), filed a petition to amend that order, seeking to have himself and eight other paternal relatives of the decedent named as heirs to the decedent's estate. The trial court denied that petition, and this appeal from that order ensued pursuant to Illinois Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)).

The facts are undisputed. The decedent's father, George Enke (George), married Sarah Curry (Sarah) in 1909 in Pennsylvania, and the two had four children between 1909 and 1914, namely, the plaintiff, his brother and his two sisters. George later abandoned Sarah and their four children in Pennsylvania, and began cohabiting with Violet Stott (Violet) in Chicago. In 1914, George and Violet had their only child, the decedent, Barbara Bartolini, out of wedlock. In 1915, without obtaining a divorce from Sarah, who was still alive at that time, George entered into a bigamous marriage with Violet in Chicago. Both parties concede that that marriage was invalid.

George predeceased both of his putative spouses and the decedent when he died in Chicago in 1947. George's first wife, Sarah, died in 1965 in Pennsylvania; the decedent's mother, Violet, died in 1971 in Chicago; and the decedent died intestate in 1992 in Chicago. The decedent's sole survivors on the side of her mother, Violet, were her cousins, Vernon Church and Dorothy James. Bartolini's sole survivors on her father's side were the progeny of her father and his first wife, Sarah. These included the plaintiff, Russell Enke, who was the decedent's half-brother; his sister, Martha; the three children of his sister Dorothy; and the four grandchildren of his brother James.

In its order declaring heirship, the trial court named the decedent's maternal cousins, Vernon Church and Dorothy James, as the sole heirs to the decedent's intestate estate. This order is consistent with section 2-2 of the Probate Act of 1975 (755 ILCS 5/2-2 (West 1994)), which provides that the intestate estates of illegitimate children pass to their respective maternal relatives but not to their paternal relatives. This rule is to be contrasted with section 2-1 of the Probate Act (755 ILCS 5/2-1 (West 1994)), which provides that the intestate estates of legitimate children pass to their respective paternal as well as maternal relatives. *fn1 In his petition to amend the trial court's order declaring heirship, plaintiff urged that when the decedent died, she was the legitimate child of George and Violet by virtue of their albeit bigamous marriage ceremony which took place while George was still married to his first wife, Sarah. Therefore, plaintiff urged, because the decedent was legitimate when she died, her aforementioned paternal relatives were entitled to participate in the distribution of her estate.

In support of his petition to amend the order declaring heirship, plaintiff relied upon the legitimating statutes enacted under section 2-2(h) of the Probate Act (755 ILCS 5/2-2(h) (West 1994)), and under sections 212(c) and 303 of the Illinois Marriage and Dissolution of Marriage Act (hereinafter Marriage Act) (750 ILCS 5/212(c) and 5/303 (West 1994)). Section 2-2(h) of the Probate Act provides, inter alia, that

"[a] person who was illegitimate whose parents intermarry and who is acknowledged by the father as the father's child is legitimate." 755 ILCS 5/2-2(h) (West 1994).

Section 212(c) of the Marriage Act, also cited by the plaintiff in his petition to amend, provides that "children born of or adopted of a prohibited or common law marriage are legitimate." 750 ILCS 5/212(c) (West 1994). Like section 2-2(h) of the Probate Act and section 212(c) of the Marriage Act, section 303 of the Marriage Act provides that

"children born or adopted of a marriage declared invalid are legitimate. Children whose parents marry after their birth are legitimate." 750 ILCS 5/303 (West 1994).

On the basis of the foregoing provisions, the plaintiff argued that the decedent died as a legitimate child by virtue of the bigamous marriage of her parents which took place after her birth, and that therefore, her paternal relatives were entitled to participate with the maternal relatives in the distribution of her intestate estate.

The independent administrator of the decedent's estate, Jacqueline Bartolini (hereinafter referred to as the defendant), filed a response to the plaintiff's petition to amend the trial court's order declaring heirship. In her response, the defendant argued that the statutory sections cited by the plaintiff were irrelevant because the decedent was not "born of" a prohibited or invalid marriage, as provided by sections 212(c) and 303 of the Marriage Act, but, rather, was born prior to an invalid marriage, out of wedlock. Moreover, the defendant argued that that invalid marriage did not legitimate the decedent under either section 303 of the Marriage Act or section 2-2(h) of the Probate Act, because, she urged, those statutory sections contemplate that only ...


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