Opinion
44932 Record No. 821555
September 6, 1985
Present: All the Justices
A claim of illegitimate succession is reinstated and remanded for an adjudication of parentage where the former requirements for claims through the father had been declared unconstitutional, and where the trial court calculated the period of limitation from the date of the statute rather than the date on which the cause of action accrued.
Wills — Constitutional Law — Due Process — Limitation of Actions — Domestic Relations — Statutory Construction — Pleading and Practice
Plaintiff was born out of wedlock on April 11, 1939. She claims to be the daughter of testatrix's late husband, who died on July 18, 1977. The husband devised and bequeathed in fee simple his whole estate to the testatrix. The testatrix, in turn, died testate on June 23, 1981, and left her residuary estate in fee simple to her husband (who was already dead). Since the residuary estate was left to her putative father, who predeceased the testatrix, plaintiff claims the estate in his stead pursuant to Code Sec. 64.1-64. Plaintiff filed a bill of complaint and affidavit of parenthood to that effect. Defendants demurred and filed a special plea to the complaint. The trial court ruled in favor of defendants, sustaining defendants' averment in the special plea that Code Sec. 64.1-5(3) barred plaintiff's claim.
1. A demurrer admits as true all material facts that are properly pleaded.
2. In Trimble v. Gordon, 430 U.S. 762 (1977), the United States Supreme Court impliedly invalidated former Code Sec. 64.1-5, which allowed illegitimate children to inherit from their fathers only if the father married the mother. Since the Trimble case was decided before the putative father died, plaintiff as an illegitimate child was no longer barred from inheriting by or through her putative father.
3. Since the broadened right for illegitimate children to inherit through their putative fathers was constitutionally mandated, it follows that plaintiff also has the right of substitution pursuant to Code Sec. 64.1-64 unless the limitation period in Code Sec. 64.1-5(3) bars the claim.
4. Code Sec. 64.1-5(3) provides that no claim of illegitimate succession is recognized in the settlement of any decedent's estate unless the claimant files an affidavit of parenthood within one year of the parent's date of death.
5. Taken literally, Code 64.1-5(3) would mean that plaintiff's right of action accrued at her father's death, which occurred more than eleven months before the enactment of the statute creating the right. This would be an improper application of the statute.
6. A statute of limitations cannot begin to run until a right of action accrues.
7. Since plaintiff's right to claim her inheritance did not accrue until the testatrix's death, plaintiff's affidavit of parenthood and complaint were timely filed.
8. The trial court erred in ruling that plaintiff's right of action was barred by the statute of limitations because, otherwise, there would be a statutory taking of plaintiff's property without due process of law, under both the Federal and Virginia constitutions (U.S. Const. amend. XIV, Sec. 1; Va. Const. art. I, Sec. 11).
9. The trial court also erred in sustaining the demurrer on the ground that plaintiff could not inherit through her putative father. Though the General Assembly had not repealed Code Sec. 64.1-5 when the father died, the Supreme Court's Trimble decision, prior to his death, implicitly voided that code section as unconstitutional.
10. An adjudication of parentage pursuant to Code Sections 64.1-5.1 and -5.2 will be necessary on remand of the cause.
Appeal from a judgment of the Circuit Court of Wythe County. Hon. R. William Arthur, judge presiding.
Reversed and remanded.
J. R. Tiller (Nathan M. Schenker; Randall A. Eads; Tiller, Schenker Tiller, on brief), for appellant.
D. Burke Graybeal (Burke, Graybeal Hammer, on brief), for appellees.
This appeal involves questions respecting the right of an illegitimate child to inherit by or through her putative father.
Peggy Jane Bird Marshall, appellant, filed a bill of complaint and affidavit of parenthood whereby she claimed Marguerite S. Bird's (Marguerite) residuary estate through Code Sec. 64.1-64 (the so-called "anti-lapse statute") as the illegitimate child of Vance L. Bird (Vance), deceased. The appellees, W. B. Bird and others (collectively, Bird), respondents in the court below, filed a demurrer and a special plea to the bill of complaint, both of which the trial court sustained.
Code Sec. 64.1-64 reads in pertinent part as follows:
If a devisee or legatee die before the testator, leaving children or their descendants who survive the testator, such children or their descendants shall take the estate devised or bequeathed, as the devisee or legatee would have done if he had survived the testator, unless a different disposition thereof he made or required by the will.
The other appellees are: D. Woodrow Bird, Ethel Mustard, Ruth Donaldson, Elizabeth Kincheloe, Helen S. Shrewsbury, Clara S. Turner, Louise S. Porterfield, Marie S. Williams, Claude N. Smith, Willard S. Smith, Frances S. Boone, Mary S. Hilton, Phyllis S. Simmerman, Collen S. Dunford, Naomi S. Perrigon, Albert Roller, Thelma Wright, Aline McCloud, Paul H. Wright, Marguerite W. Sisson, David Lee Wright, and Sharon W. Carter.
Bird's demurrer asserts that under the law existing at the time of Vance's death (Code Sec. 64.1-5), Marshall had no right of inheritance by or through her putative father. Bird's special plea avers that Marshall's claim is barred by the provisions of Code Sec. 64.1-5.1(3) because Marshall did not file her bill of complaint and affidavit within the prescribed time.
Former Code Sec. 64.1-5 read as follows:
Illegitimate children shall be capable of inheriting and transmitting inheritance on the part of their mothers as if lawfully begotten.
Code Sec. 64.1-5.1 reads in pertinent part as follows:
If, for purposes of Title 64.1, a relationship of parent and child must be established to determine succession by, through or from a person: . . . .
3. No claim of succession based upon the relationship between a child born out of wedlock and a parent of such child shall be recognized in the settlement of any decedent's estate unless an affidavit by such child or by someone acting for such child alleging such parenthood has been filed within one year of the date of the death of such parent in the clerk's office of the circuit court of the jurisdiction wherein the property affected by such claim is located and an action seeking adjudication of parenthood is filed in an appropriate circuit court within said time; provided, however, such one-year period shall run notwithstanding the minority of such child.
A demurrer admits as true all material facts that are properly pleaded, Bowman v. State Bank of Keysville, 229 Va. 534, 536, 331 S.E.2d 797, 798 (1985), and the facts germane to Bird's special plea are undisputed. Marshall was born out of wedlock on April 11, 1939. She claims to be the biological daughter of Vance, who died testate on July 8, 1977. Vance devised and bequeathed his entire estate to Marguerite, his wife, in fee simple. Marguerite died testate on June 23, 1981. She devised and bequeathed her residuary estate to Vance, in fee simple. Because Vance predeceased and Marshall survived Marguerite, Marshall invokes the anti-lapse statute and claims the residuary estate in Vance's place.
Although Code Sec. 64.1-5 had not been repealed at the time of Vance's death, the Supreme Court of the United States, approximately 12 weeks before Vance's death, declared unconstitutional an Illinois statute virtually identical to Code Sec. 64.1-5. Trimble v. Gordon, 430 U.S. 762 (1977). In response to that decision, the General Assembly repealed Code Sec. 64.1-5 and replaced it with Code Sections 64.1-5.1 and -5.2, effective July 1, 1978. Thus, Code Sec. 64.1-5 had been declared unconstitutional prior to Vance's death, but the General Assembly did not repeal it until after his death. The repeal of Code Sec. 64.1-5 and the replacement legislation, however, took effect nearly three years before Marguerite's death.
Our primary inquiry focuses upon Bird's special plea. This presents the question whether, under these facts, the trial court erred in holding that the one-year limitation provision in Code Sec. 64.1-5.1(3) barred Marshall's claim as the substitute devisee and legatee in Marguerite's will.
Trimble effectively invalidated former Code Sec. 64.1-5. Thus, prior to Vance's death, Marshall no longer was precluded from inheriting by or through her putative father. This broadened right for illegitimate children, constitutionally mandated, was codified in Code Sec. 64.1-5.1(2), effective July 1, 1978. It follows, therefore, that unless Code Sec. 64.1-5.1(3) bars Marshall's claim, she also had the right of substitution prescribed by Code Sec. 64.1-64.
[4-5] Code Sec. 64.1-5.1(3) provides in pertinent part that:
No claim of succession based upon the relationship between a child born out of wedlock and a parent of such child shall be recognized in the settlement of any decedent's estate unless [an affidavit of parenthood and an action to establish parenthood] has been filed within one year of the date of the death of such parent . . . .
Because Vance died on July 18, 1977, under a literal reading of this provision, Marshall's right of action would have accrued more than 11 months before the enactment of the statute creating it. The trial court recognized that this would be an invalid application of the statute, and we agree.
The court ruled, however, that the limitation period in Code Sec. 64.1-5.1(3) began to run on July 1, 1978 (the statute's effective date). Therefore, under this ruling, the one-year limitation expired almost two years before Marguerite's death in June, 1981. But a statute of limitations cannot begin to run until a right of action accrues. See Boykins Corp. v. Weldon, Inc., 221 Va. 81, 85, 266 S.E.2d 887, 889 (1980).
Clearly, until Marguerite died, Marshall had no right to claim her inheritance in Marguerite's estate through her putative father pursuant to Code Sec. 64.1-64. In other words, Marshall's right to claim her inheritance did not accrue until Marguerite's death, and the court's application of the statute effectively destroyed Marshall's right to sue. Therefore, under the facts presented, the one-year time period did not commence to run until the date of Marguerite's death, and thus Marshall's affidavit and suit were timely filed.
We hold, therefore, that the court erred in ruling that Marshall's right of action was time-barred. Otherwise, there would be a statutory taking of Marshall's property without due process of law in violation of both the Federal and Virginia constitutions. U.S. Const. amend. XIV, Sec. 1; Va. Const. art. I, Sec. 11; see also Potomac Hospital v. Dillon, 229 Va. 355, 329 S.E.2d 41 (1985).
We also hold that the trial court erred in sustaining Bird's demurrer on the ground that, at the time of Vance's death, Marshall could not inherit by or through her putative father. Although the General Assembly had not repealed Code Sec. 64.1-5 at the time of Vance's death, Trimble implicitly declared it unconstitutional almost three months previously.
Accordingly, because the trial court erred in sustaining both the demurrer and the special plea, we will reverse its decree and remand the cause for an adjudication of parentage pursuant to Code Sections 64.1-5.1 and -5.2.
Reversed and remanded.