{ "id": 5537290, "name": "In re ESTATE OF JAMES CODY, Deceased; (METROPOLITAN LIFE INSURANCE COMPANY et al., Petitioners-Appellees, v. BERNARD JOHNSON, Administrator of the Estate of James Cody et al., Respondents-Appellants.)", "name_abbreviation": "Metropolitan Life Insurance v. Johnson", "decision_date": "1980-12-29", "docket_number": "No. 79-1279", "first_page": "208", "last_page": "215", "citations": [ { "type": "official", "cite": "92 Ill. App. 3d 208" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "277 Ill. App. 322", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5552525 ], "opinion_index": 0, "case_paths": [ "/ill-app/277/0322-01" ] }, { "cite": "439 U.S. 259", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11329641 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/439/0259-01" ] }, { "cite": "430 U.S. 762", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12127757 ], "weight": 6, "opinion_index": 0, "case_paths": [ "/us/430/0762-01" ] }, { "cite": "386 N.E.2d 328", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "68 Ill. App. 3d 410", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3306543 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/68/0410-01" ] }, { "cite": "381 N.E.2d 76", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "64 Ill. App. 3d 470", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3334268 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/64/0470-01" ] } ], "analysis": { "cardinality": 825, "char_count": 19732, "ocr_confidence": 0.915, "pagerank": { "raw": 7.518592731241539e-08, "percentile": 0.44711409815784625 }, "sha256": "b635a4da8f869ae58d47a75987e38aaf4d8fe10eeac992c032d782d1a1b68abf", "simhash": "1:3be2fb13b844f68d", "word_count": 3254 }, "last_updated": "2023-07-14T15:16:53.928123+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re ESTATE OF JAMES CODY, Deceased.\u2014(METROPOLITAN LIFE INSURANCE COMPANY et al., Petitioners-Appellees, v. BERNARD JOHNSON, Administrator of the Estate of James Cody et al., Respondents-Appellants.)" ], "opinions": [ { "text": "Mr. JUSTICE CAMPBELL\ndelivered the opinion of the court:\nThis 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.\nThe 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. 110/2, par. 2 \u2014 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.\nPursuant 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\u2019s son. Respondents called two witnesses, Daisy Mae Cody and Bernard Johnson. Respondents contend that James Cody was childless throughout his lifetime.\nClifford 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\u2019s family, Annie Laura Cody (decedent\u2019s mother) and Lillian Cody (decedent\u2019s 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.\nDaisy Mae Cody, who had married decedent\u2019s brother, testified that the reason James Cody drove to Augusta to bring Clifford Cody home with him was because of his wife\u2019s desire to have a child.\nDecedent 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.\nHauser 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\u2019s natural mother.\nWhile living with decedent and his wife, Clifford Cody was often in the company of Bernard Johnson, decedent\u2019s 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.\nFor 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\u2019s sister, who had earlier moved to Brooklyn, New York.\nFrom 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.\nJames 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\u2019s sister, Annette, to hurry to Augusta because of the seriousness of decedent\u2019s 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.\nClifford drove with decedent\u2019s 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\u2019s sister-in-law. Clifford signed pertinent papers relating to decedent\u2019s funeral. Also, Daisy Mae Cody, who was in charge of funeral arrangements, wrote in James Cody\u2019s obituary that Clifford Cody was the son of James Cody. Clifford had no input in the content or drafting of the obituary.\nClifford left Augusta shortly after James Cody\u2019s funeral. Prior to his leaving, however, Daisy Mae Cody gave him the decedent\u2019s 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\u2019s sister. Prior to James Cody\u2019s death, Clifford was unaware of the existence of the insurance policy. On June 3, 1978, Clifford paid $1,356 to People\u2019s Funeral Home to cover that balance of the expenses for James Cody\u2019s funeral which were not paid by social security.'\nFollowing the funeral, Clifford was taken by Bernard Johnson to the Chicago law offices of Mr. Hollander. There, Clifford apparently signed an affidavit of heirship which stated that James Cody was married twice, the first time to Louise Ficklin. However, Clifford denied that he intended to swear that Louise Ficklin was ever married to James Cody, and he stated that he never read the affidavit. Clifford cannot read or write.\nBernard Johnson witnessed the signing of the affidavit of heirship. At the same time, he signed various documents pertaining to his appointment as administrator of James Cody\u2019s estate. In his testimony, he stated that he did not know what he was signing and that he did not know, even after the June 9,1978, hearing on heirship, that he was appointed administrator of James Cody\u2019s estate.\nClifford started to use Cody as his surname when he was about 13 years of age. Since that time he has always gone by the name of Cody. In 1973, five years before his father\u2019s death, Clifford legally changed his name from Ficklin to Cody in order to obtain a New York driver\u2019s license bearing his father\u2019s last name. Prior to that time, he had no need to change his name legally. Clifford claimed that in order to obtain a name change in New York, he had to have an affidavit from James Cody swearing that he was the father of Clifford Cody. He further stated that he did, in fact, receive such an affidavit from his father but that when he later requested its return, the lawyer who handled the name change in New York was unable to locate it for him.\nAfter full hearings, the circuit court entered an order finding that Clifford Cody is the son and only heir of James Cody, deceased. Petitioners now appeal this order.\nRespondents claim Clifford Cody was not proven by clear and convincing evidence to be the son of the decedent. In determining this issue, however, we must also adhere to the principle that the finding of the trial court should not be disturbed unless it is contrary to the manifest weight of the evidence. (Estate of Larimore v. Chatterton (1978), 64 Ill. App. 3d 470, 381 N.E.2d 76.) The Illinois Probate Act section on descent and distribution (Ill. Rev. Stat. 1979, ch. llQM, par. 2 \u2014 2(h)) provides, in pertinent part, as follows:\n\u201cIf a decedent has acknowledged paternity of an illegitimate person, or if during his lifetime or after his death a decedent has been adjudicated to be the father of an illegitimate person, that person is heir of his father * .\u201d (Ill. Rev. Stat. 1979, ch. 110M, par. 2 \u2014 2(h).)\nThis section of the Probate Act allows an illegitimate descendent of a decedent to petition the probate court for a determination of his rights as as heir. Additionally, under this section of the Probate Act, the illegitimate can prove paternity by showing the decedent acknowledged the illegitimate as his child, or by introducing clear and convincing proof of paternity.\nAt the hearing on Clifford Cody\u2019s petition for heirship, Clifford stated that the decedent repeatedly referred to him as his son. Toula Mae Houser testified that James and his wife moved into her apartment and that James had told Toula Mae that Clifford was his son. During this time Clifford lived with James and Gertrude for two to three years. James introduced Clifford to Toula Mae and her husband as his son. Also, at a company picnic Toula Mae heard James introduce Clifford as his son to over 25 people.\nDefendant\u2019s witnesses testified that James never acknowledged nor denied Clifford as his son. However, Daisy Mae Cody admitted writing an obituary with Clifford listed as decedent\u2019s sole surviving son. She also testified Clifford had nothing to do with the content of this obituary.\nThe respondents claim that Clifford Cody was not proven by clear and convincing evidence to be the son of the decedent because inconsistencies appear in the record with regard to such issue.\nThe respondents have argued that Clifford Cody\u2019s credibility has been impeached because he signed an affidavit which stated that Louise Ficklin and James Cody were married when, in fact, they were not married. However, Clifford Cody has admitted at the hearing and at his deposition that James Cody and Louise Ficklin were never married. This discrepancy is understandable considering that Clifford testified that he cannot read or write, that he did not know what he was signing at the lawyer\u2019s office and that he did not even remember signing the affidavit of heirship.\nRespondents also find fault with petitioner\u2019s failure to produce the notarized letter needed to enable Clifford Cody to legally change his name. However, respondents did not consult the court file nor did they contact the attorney who handled the name change in New York. We are convinced that no inferences arise from these facts which would prevent a determination that Clifford Cody is the son of decedent.\nRespondents also attack Clifford Cody\u2019s credibility as to details which relate to matters of memory and recall. Respondents claim that in his t\u00e9stimony Clifford Cody failed to recall: (1) the amount of the insurance proceeds; (2) the year of James Cody\u2019s death; (3) the month when James Cody was buried; (4) his age when he moved to New York; (5) the length of his residence in Chicago and Georgia; (6) the year he talked to Bernard Johnson about James Cody\u2019s illness; and (7) who had obtained money from social security. These alleged inconsistencies or discrepancies, to the extent there are any, are minor and do not go directly to the question of paternity. Such discrepancies are not unusual and go only to the weight to be given the testimony by the trier of fact; they do not destroy the credibility of the witness. The minor variations do not compel us to find that the finding of paternity was contrary to the manifest weight of the evidence.\nAs to the general issue of paternity, the judgment below should not be disturbed unless it is contrary to the manifest weight of the evidence. (Estate of Lattimore.) This is because the trial court is in the best position to determine the credibility of the witnesses, the weight to be given their testimony, and the inferences to be drawn therefrom. (Morelli v. Battelli (1978), 68 Ill. App. 3d 410, 386 N.E.2d 328.) The evidence submitted to the trial court sufficiently supports the finding that Clifford Cody is the son of the decedent. The trial court\u2019s finding of paternity in the instant case was a proper finding and is not contrary to the manifest weight of the evidence.\nThe respondents also argue that the Illinois statute (Ill. Rev. Stat. 1979, eh. 110%, par. 2 \u2014 2) permitting an adjudication of paternity of an illegitimate after the death of the alleged father denies due process of law under the fourteenth amendment (U.S. Const., amend. XIV) to the estate and collateral heirs. More specifically, respondents claim due process is denied them because a defendant in a paternity action, who is alive, has a right to notice and an opportunity to deny paternity, possibly by entering into evidence conclusive proof in the form of his blood type. Whereas, where the alleged father dies without notice and the estate does not have the information with regard to his blood type, then the estate does not have that opportunity to have the decedent excluded based on his blood type. Respondents categorize this situation as unfair, arbitrary, capricious and unreasonable. In addition, respondents claim section 2 \u2014 2 denies them equal protection under the fourteenth amendment (U.S. Const., amend. XIV).\nRespondents cite Trimble v. Gordon (1977), 430 U.S. 762, 52 L. Ed. 2d 31, 97 S. Ct. 1459, for the proposition that paternity is determined when there is formal acknowledgment of paternity or an adjudication before the alleged father\u2019s death. Respondents argue that petitioner should have introduced into evidence an affidavit, signed by James Cody, affirming paternity of Clifford Cody. Respondents also cite Lalli v. Lalli (1978), 439 U.S. 259, 58 L. Ed. 2d 503, 99 S. Ct. 518, wherein the court recognized the propriety of a New York statute which allowed an illegitimate child to inherit from his intestate father only if a court has, during the father\u2019s lifetime, entered an order declaring paternity.\nWe hold section 2 \u2014 2 does not violate respondents\u2019 due process or equal protection rights guaranteed by the United States Constitution.\nIn Trimble v. Gordon, the United States Supreme Court considered a challenge, on equal protection grounds, of the Illinois Probate Act, which allowed illegitimate children to inherit by intestate succession only from their mothers (although legitimate children may have inherited by intestate succession from both their mothers and fathers). In striking down the statute, the court found there was no legitimate State purpose to justify a total statutory disinheritance of illegitimate children whose fathers die intestate. The court specifically denied that difficulties in proving paternity would justify such a statutory disinheritance. In response to this decision, the Illinois legislature amended the section struck down by the court into section 2 \u2014 2 (effective September 12, 1978).\nIn Lalli, the United States Supreme Court considered a challenge, on equal protection grounds, of a New York statutory provision that allowed an illegitimate child to inherit from his intestate father only if a court of competent jurisdiction had, during the father\u2019s lifetime, entered an order declaring paternity. In upholding the statute, the court held the requirement of a court order during the father\u2019s lifetime furthered a State interest in the just and orderly disposition of decedent\u2019s estate yet granted to illegitimates, in so far as practicable, rights of inheritance on a par with those enjoyed by legitimate children. The court found that the reach of the New York statute, unlike that involved in Trimble v. Gordon, did not exceed justifiable State interests.\nTrimble v. Gordon and Lalli examined State statutes which limited illegitimates\u2019 rights to inherit, and compared the limitations with the State interests furthered thereby. Although each questioned whether equal protection was denied, neither opinion required an affidavit of parentage in order for paternity to be judicially decreed. In fact, the court in Trimble v. Gordon stated:\n\u201cEvidence of paternity may take a variety of forms, some creating more significant problems of inaccuracy and inefficiency than others. The States, of course, are free to recognize these differences in fashioning their requirements of proof. \u00b0 (430 U.S. 762, 772 n.14, 52 L. Ed. 2d 31, 41 n.14, 97 S. Ct. 1459, 1466 n.14.)\nNeither Trimble v. Gordon nor Lalli indicate any intention of the Court to limit states from allowing an illegitimate to inherit from his father, even though proof is not forthcoming until after the father\u2019s death.\nThe Illinois legislature, consistent with the foregoing quoted language in Trimble v. Gordon, has fashioned a statute (section 2 \u2014 2) which permits illegitimate children to inherit from their fathers. But those seeking an adjudication of paternity at death are held to a higher standard of proof (that being clear and convincing evidence) than would otherwise be the case in a civil action. See Morelli v. Battelli (1979), 68 Ill. App. 3d 410, 386 N.E.2d 328; In re Estate of Larimore v. Chatterton (1978), 64 Ill. App. 3d 470, 381 N.E.2d 76.\nRespondents argue that section 2 \u2014 2, together with section 5 of the Paternity Act (Ill. Rev. Stat. 1979, ch. 40, par. 1355), violates the respondent\u2019s due process rights by permitting adjudication of paternity after the death of the alleged father without notice and an opportunity to present blood test evidence. Section 5, however, clearly requires notice to the alleged father only if he is alive. No notice can be given to someone who is not alive. Moreover, an administrator is the decedent\u2019s representative with respect to property in decedent\u2019s estate (see Greenspahn v. Ehrlich (1934), 277 Ill. App. 322), and the administrator of decedent\u2019s estate, in the case at bar, was notified of the heirship proceedings and even participated in them.\nNeither James Cody\u2019s nor the respondents\u2019 due process rights have been violated in this regard. Additionally, the fact that the administrator was allegedly unable to present evidence of the decedent\u2019s blood type does not effect the validity of section 5.\nAs in the issue of notice, section 5 is intended to provide the alleged father who is alive the opportunity, through notice, to present his blood type as evidence. In the event the alleged father is dead, notice to the administrator of his estate would allow the administrator to present evidence of the decedent\u2019s blood type, if it be available. Section 5 intends to do no more than what is practically possible. The respondents were given every realistic opportunity to present decedent\u2019s blood test. Therefore, neither James Cody\u2019s nor the respondents\u2019 due process rights have been violated in this regard.\nThe petitioner argues that respondents have waived the issues of denial of due process and equal protection because they failed to question the validity of section 2 \u2014 2 at trial. Regardless of whether this court considers the waiver issue, however, the result would be the same.\nFor the above and foregoing reasons, the judgment of the circuit court of Cook County is hereby affirmed.\nAffirmed.\nMcGLOON and O\u2019CONNOR, JJ., concur.", "type": "majority", "author": "Mr. JUSTICE CAMPBELL" } ], "attorneys": [ "Anna R. Langford and Howard T. Savage, both of Chicago, for appellants.", "Peterson, Ross, Schloerb & Seidel, of Chicago (Joseph J. Hasman and Daniel A. Engel, of counsel), for appellees." ], "corrections": "", "head_matter": "In re ESTATE OF JAMES CODY, Deceased.\u2014(METROPOLITAN LIFE INSURANCE COMPANY et al., Petitioners-Appellees, v. BERNARD JOHNSON, Administrator of the Estate of James Cody et al., Respondents-Appellants.)\nFirst District (1st Division)\nNo. 79-1279\nOpinion filed December 29, 1980.\nAnna R. Langford and Howard T. Savage, both of Chicago, for appellants.\nPeterson, Ross, Schloerb & Seidel, of Chicago (Joseph J. Hasman and Daniel A. Engel, of counsel), for appellees." }, "file_name": "0208-01", "first_page_order": 230, "last_page_order": 237 }