No. 3-00-0724

________________________________________________________________

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2002

IN RE ESTATE   			)	

OF MADISON RAE POOLE,		)	Appeal from the Circuit Court

						)	for the 10th  Judicial

	Deceased				)	Circuit, Putnam County,

______________________________)	Illinois

						)	

(Randy L. Poole, Jr.,		)

						)	

	Petitioner-Appellant,	)	No. 98-P-17

						)	

	v.		 			)	

						)

Debra Jean Clausen,			)	

Adm'r of the Estate   		)	Honorable Stuart Borden

of Madison Rae Poole,		)	Judge, Presiding 

						)

	Respondent-Appellee). 	)

_________________________________________________________________

JUSTICE McDADE delivered the opinion of the court:

_________________________________________________________________

	Randy Poole appeals from the trial court's denial of his

petition to revoke letters of administration issued to Debra Jean

Clausen.  Randy is the acknowledged biological father of a viable

fetus (later named Madison Rae Poole) being carried by Debra's

daughter, Christina Clausen.  Madison was ultimately stillborn as

a result of an automobile accident in which Christina was killed. 

Randy petitioned to revoke the letters of administration

following his receipt of notice that Debra had sought leave of

court to distribute the estate of Madison.  Randy's petitions

were ultimately denied because the trial court found that he was

not an "eligible parent" under the statute governing inheritance

from an illegitimate child and, therefore, lacked standing to challenge the issuance of letters of administration to Debra.  Randy appeals.

FACTS

	Christina and Randy began living together in August of 1997. 

Shortly thereafter, the two moved to the State of Virginia.  They

continued to live together and maintain a conjugal relationship. 

In October of 1997, Christina became pregnant.  The couple then

returned to the State of Illinois, where they awaited the birth

of their child.  

	Following their return to Illinois, Christina and Randy

continued to live together, but never married.  They received

emotional support from their respective families, participated in

social events as a couple, and held out to their families and

friends that Randy was the father of Christina's baby.  Also

during that time period, neither Christina's nor Randy's family

disputed Randy's paternity of the developing fetus.  

	On May 26, 1998, when Christina was approximately eight

months pregnant, she was involved in a head-on automobile

collision. Her injuries were fatal, and she was pronounced dead

at 7:33 a.m.  A caesarean section was performed at 11:20 a.m.,

and a stillborn child was delivered.  Although the child was

pronounced dead at 11:20 a.m., Randy christened her Madison Rae

Poole and took photographs with her at the hospital.

	The Clausen family allegedly acknowledged Randy as the

biological father of Madison.  They invited him to participate in

the selection of the baby's name (which included his surname) and agreed to listing Randy as the father on the fetal death

certificate issued by the medical examiner.  In addition, the

obituary for Madison identified Randy as a survivor. 

	Debra filed a petition with the Putnam County circuit court

for letters of administration for the estate of Madison on or

about September 9, 1998.  She had apparently been negotiating a

settlement regarding the wrongful death of Madison, although she

does not appear to have filed an action.  Debra attached an

affidavit of heirship to the petition, stating that she and John

Clausen were the maternal grandparents of Madison and that they

were the only persons entitled to administer her estate.  Randy

asserts that he was unaware at that time of any negotiations

regarding Madison's wrongful death or of the petition filed by

Debra.

	On October 1, 1998, the circuit court of Putnam County

entered an order appointing Debra administrator and directing

that letters of administration be issued to her for Madison's

estate.  On November 8, 1999, Debra filed a petition for an order

allowing her to execute settlement documents and to distribute to

heirs at law.  According to the petition, Country Companies had

agreed to pay $70,000 (minus expenses) to Madison's estate. 

Debra was seeking to have the settlement approved by the court

and to distribute the settlement funds to John, herself, and

Madison's two maternal aunts.  

	Randy received notice of the hearing on the petition filed

by Debra.  He responded by filing an affidavit of parentage, in which he explained his relationship with Christina and the

circumstances of Madison's conception.  Randy also filed a

petition requesting revocation of Debra's letters of

administration based on the fact that he, as Madison's biological

father, had priority.  

	Debra filed an objection to Randy's petition to revoke her

letters of administration.  In her objection, she stated, in

essence, that Randy was not an "eligible parent" under the

statute governing inheritance from an illegitimate child.  In

addition, Debra alleged that the Illinois Parentage Act of 1984

(750 ILCS 45/1 et. seq. (West 1998)) contained the exclusive method of establishing paternity and that Randy could not

establish paternity pursuant to that Act.

	Eventually, Randy filed a second amended petition.  (The

original and first amended petitions were dismissed by the trial

court due to insufficiency of the pleadings.)  In the second

amended petition, Randy contended that, if he were not an

eligible parent, Christina could not be an eligible parent under

that statute either.  Therefore, the proceeds of Madison's estate

would have to be distributed as though both parents had

predeceased her.  This petition was again denied, and Randy filed

a motion to reconsider on July 6, 2000.  The motion for

reconsideration was denied, and Randy appeals.

ISSUES

	In his appeal, Randy has asked this court to determine: (1)

whether the trial court erred in deciding that the father of an illegitimate, stillborn child has no interest, standing, or

priority to request the removal of an administrator from the

estate of his biological child; and (2) whether the statute

governing inheritance from an illegitimate child is

unconstitutional because it treats biological fathers of

illegitimate children differently than biological mothers of

those same children and, therefore, the trial court erred in

finding that the biological father of an illegitimate child, as

sole surviving heir, is not entitled to recover for the wrongful

death of his child.  Review of the trial court's order involves

the construction of statutes, and therefore, the standard of

review for this court is de novo.  Woods v. Cole, 181 Ill. 2d 512, 516 (1998).

ANALYSIS

	Randy argues that the trial court erred in determining that

he had no interest, standing, or priority to request the removal

of Debra as administrator of Madison's estate.  He claims that he

has both status and priority as Madison's biological father and

nearest kin.  Debra has countered by arguing that, since Randy is

not an "eligible parent" under the statute governing inheritance from an illegitimate child, he similarly lacks the status to be

an administrator of the estate.  Both of these issues assume the

existence of an estate.1

	Rights of the Father of an Illegitimate, Stillborn Child

	Randy argues that the trial court erred in determining that

he had no interest, standing, or priority to request the removal

of Debra as administrator of Madison's estate in this case. 

First, Randy argues that he has a statutory priority in the

granting of letters of administration under section 9--3 of the

Probate Act of 1975 (755 ILCS 5/9--3(West 1998)), which provides

in pertinent part:

			"Persons entitled to preference in

obtaining letters.  The following persons are

entitled to preference in the following order

in obtaining the issuance of letters of administration***: 

* * *

			(e) The parents or any person nominated

by them. 

		* * * 

			(g) The nearest kindred or any person

nominated by them.

	* * * 			Only a person qualified to act as administrator under this Act may nominate*** in

accordance with the order of preference set forth in this

section.  A person who has been removed as representative under

this Act loses the right to name a successor." 755 ILCS 5/9--

3(West 1998).

	By the plain language of this statute, it would appear that

a biological parent (subsection e) would have a preference over a

grandparent (subsection g) for letters of administration.  The

original question before the trial court was whether Randy should

have had priority over Debra for letters of administration of the

estate of Madison.  Based on the unambiguous statutory language,

it certainly appears that Randy's petition for revocation of the

letters of administration should have been granted. 

	However, Debra has argued that Randy is not an eligible

parent under a different section of the Probate Act which governs

inheritance from illegitimate children.  Therefore, she contends

he lacks standing to object to her appointment as administrator because he is not a parent as that term is used in the statute. 

She cites no authority for her personal conclusion that because

the biological father of an illegitimate child cannot inherit, he

is also precluded from serving as administrator.

	Section 2--2 of the Probate Act of 1975 (755 ILCS 5/2--2

(West 1998)) is the statute governing inheritance from

illegitimate children, and it provides as follows:  

			"Illegitimates.  The intestate real and

personal estate of a resident decedent who was illegitimate at the time of death and the

intestate  real estate in this State of a

nonresident decedent who was illegitimate at the time of death, after all just claims

against his estate are fully paid, descends

and shall be distributed as provided in

section 2--1, subject to section 2--6.5 of

this Act, if both parents are eligible

parents’.  As used in this section, ‘‛eligible parent‛’ means a parent of the decedent who, during the decedent's lifetime, acknowledged the decedent as the parent's child,

established a parental relationship with the

decedent, and supported the decedent as the

parent's child.***

			If neither parent is an eligible parent,

the intestate real and personal estate of a resident decedent who was illegitimate at the

time of death and the intestate real estate

in this State of a non-resident decedent who

was illegitimate at the time of death, after

all just claims against his or her estate are

fully paid, descends and shall be distributed

as provided in sSection 2--1, but the parents

of the decedent shall be treated as having

predeceased the decedent." (Emphasis added)

755 ILCS 5/2--2(West 1998).

	Debra argues that under the plain language of this

provision, Randy is not an eligible parent because Madison, the

decedent, did not have a lifetime so Randy could not acknowledge

the decedent as his child, establish a parental relationship with

the child, or support the decedent as his child during its

lifetime.  Although the statute requires a "lifetime" of the

child for the establishment of eligibility by both parents, Debra insists that Christina could inherit from the estate of Madison

because a biological mother is naturally the mother of the unborn

fetus and therefore satisfies the statutory requirements.  She

must, of necessity, be arguing that Madison had a "lifetime" in utero.

	We note first that the language limits the definition of

"eligible parent" to the particular section of the Act. We also believe that Debra's analysis is flawed under the plain language of the statute.  

	We start with the fact that the legislature specifically

redrafted the statute (see the next part of this opinion) to make

it gender neutral.  By statutory design, if the mother can

qualify as an eligible parent, a biological father could also

qualify, despite the fact that he is not married to the mother. 

Certainly, the biological father could acknowledge the fetus as

his child during the term of the pregnancy.  In addition, he

could establish a relationship with the child's mother and

support the child by supporting the mother.  

	In this case, it appears that Randy could qualify as an

eligible parent.  He resided with Christina before and throughout

the pregnancy, including moving with her to another state.  He

provided support (financial and emotional) to her and, through

her, to the unborn child, and he held himself out as the father

of the child.  Randy did everything possible to act as a parent

to the unborn child.  Any analysis which results in finding,

based on these facts, that Christina was an eligible parent and

Randy was not would necessarily lead to the conclusion that the

statute is gender biased, which is something the legislature

specifically redrafted it to avoid.

	 Debra has also argued that Randy was only a potential

father because Madison had not yet been born at the time of her

death.  Therefore, he did not have the requisite parental relationship to give him priority under the statute, because he

had no right to impede the exercise of the mother's choice to

terminate the pregnancy prior to birth.  Debra cited Roe v. Wade, 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973), and Coe v. County of Cook, 162 F.3d 491 (7th  Cir. 1998), in support of her argument.  Those cases dealt with the issue of abortion and are

easily distinguished from this litigation.  Neither Roe nor Coe dealt with the rights of a biological father to inherit from a

viable fetus.

	More pertinent to the issues in this appeal, in Seef v. Sutkus, 145 Ill. 2d 336, 583 N.E.2d 510 (1991), the Illinois Supreme Court held that under the Wrongful Death Act, an unborn

fetus was recognized as a person to the extent that a rebuttable

presumption for loss of society existed for the parents of a

stillborn child.  The court recognized that Illinois law has

acknowledged that pecuniary losses encompass loss-of-society

damages for many facets of family relationships.  The court,

citing Chrisafogeorgis v. Brandenberg, 55 Ill. 2d 368, 304 N.E.2d 88 (1973), found that the Wrongful Death Act gave parents the

right to maintain an action for damages for the negligently

caused death of a viable fetus.  The court did not make any

distinction in either case between married and unmarried parents. 

	No such action was filed by any party in this case. 

However, by a fair reading of Seef and Chrisafogeorgis, a biological father of an illegitimate viable fetus would have a

redressible claim as a result of the wrongful death of that

fetus.  In this case, Christina was involved in a head-on

collision that was not, based on the information before this

court, any fault of her own.  Therefore, Randy could have brought a Wrongful Death Act claim for the death of Madison in this case. 

We note for the record that we have found no case law which gives

such a right of action to grandparents such as Debra and John

Clausen.

	If Randy had a legitimate wrongful death claim, it would

appear that he, rather than the grandmother, would have priority

for letters of administration for any estate created by advancing

that claim.  The legitimacy of any such claim would, however, be

dependent upon his ability to prove that he was the biological

father of Madison.   Randy indicated in his brief that he could

prove paternity, but it does not appear that an evidentiary

hearing was held on this matter--perhaps because paternity has

not been challenged.  Therefore, the case must be remanded to the

trial court for an evidentiary hearing limited to determining

whether Randy is Madison's biological father.  If he is, the

letters of administration should properly issue to him and not to

Debra.  Because the "fund" derives from a settlement of a

nonlitigated claim and not from a judgment, we make no finding as

to its appropriate distribution.

	Section 2--2 is Gender Neutral and Constitutional

	Randy argued that section 2--2 of the Probate Act of 1975

(755 ILCS 5/2--2 (West 1998)) is unconstitutional because it

treats biological fathers differently than biological mothers. 

Although we have already touched on this issue in arriving at our

decision on the earlier question, we have decided, in the

interest of judicial economy, to address it in greater depth to provide some direction with regard to who would be eligible to

inherit from Madison's "estate."

	An earlier version of section 2--2 of the Probate Act of

1975 (755 ILCS 5/2--2 (West 1998)), providing that a biological

father of an illegitimate child could not inherit, was reviewed

by the Illinois Supreme Court in In re Estate of Hicks, 174 Ill. 2d 433, 675 N.E.2d 89 (1996).  In Hicks, the court held that the statute allowing only the mother and the mother's descendents to

inherit from an illegitimate intestate who dies without a

surviving spouse discriminated on the basis of gender and

resulted in a denial of equal protection under the state

constitution.  Hicks, 174 Ill. 2d 433, 675 N.E.2d 89 (1996).

	As a result of the Hicks decision, the Illinois legislature amended the statute to the current form quoted above.  From the

legislative history surrounding that revision, it is clear that

the legislature was attempting to create a statute that was

gender neutral.  

	On its face, the statute seems to have succeeded in

achieving gender neutrality.  However, it does not appear to be

applicable to the situation presented before this court. 

Certainly, the statute clearly governs situations where the

illegitimate child has actually been born and lived for a period

of time.  We have been unable to locate any statutory or common

law governing inheritance from a viable fetus that is stillborn,

nor have the parties cited any such authority.  Therefore, we are

reduced to construing this statute as if it covered the situation presented. 

	In this case, it seems clear that neither parent can meet

the criterion of "during the decedent's lifetime."  However, a

biological father could acknowledge the viable fetus as his own,

establish a relationship with it, and support the fetus through

his support of the mother.  Conceptually, if the biological

father has done these things, he would be as eligible as the

mother to inherit from an illegitimate viable fetus.  

	As we have previously discussed, Randy appears to meet the

other criteria.  He resided with Christina in both Illinois and

Virginia before and during the pregnancy, he provided support

(financial and emotional) to her, and he held himself out as the

father of the child.  Indeed, both of them did.  In addition, the

maternal grandparents allegedly did not dispute his paternity

prior to the accident.  Randy was present when Madison was

stillborn, he helped name her, he was present when she was

christened, and he is identified as the biological father on the

fetal death certificate.  All of these facts reasonably lead to

the conclusion that Randy did indeed do everything he could to

establish a relationship with Madison.  If the statute applied at

all in this case, we believe it would apply equally to Randy and

Christina.  We do not find the statute to be unconstitutional on

the grounds of gender bias.

	CONCLUSION

	Based on the foregoing, the trial court erred in denying 

Randy's second amended petition to revoke the letters of administration.  Therefore, the trial court's decision is

reversed, and the case is remanded for a hearing with regard to

whether Randy was the biological father of Madison.  Once that

determination is made, the court can then make a ruling

consistent with this order regarding who is entitled to be issued

the letters of administration for Madison's "estate" and to

determine the distribution of the settlement funds.

	Reversed and remanded. 	

	BRESLIN, J., concurs.  HOLDRIDGE, J., specially concurs. 

3--00--0724 – Poole v. Clausen

	JUSTICE HOLDRIDGE, specially concurring:

	I concur in the conclusion reached by the majority.2