Roberto ROBLES, by his g. a. l., Pablo Robles, Appellant, v. Marion B. FOLSOM, Federal Security Administrator, Appellee, 239 F.2d 562

HAND, Circuit Judge. This is an appeal from a judgment, summarily dismissing a complaint to reverse the decision of the Federal Social Security Administration, denying the plaintiff’s application for “insurance benefits” after the death of his father. The question is whether the plaintiff falls within

section 402(d) (3) of Title 42 U.S.C.A., which reads as follows: “A child shall be deemed dependent upon his father * * * unless * * * such individual was not living with or contributing to the support of such child and— (

A) such child is neither the legitimate nor adopted child of such individual.”

Section 416(h) (1) of the act provides that: “In determining whether an applicant is the wife, husband, widow, widower, child or parent of a fully insured or currently insured individual * * * the Administrator shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual * * * was domiciled at the time of his death.” At the time when the plaintiff’s father died he was domiciled in the state of New York, and the plaintiff was living with him and was therefore “dependent” upon him within the meaning of § 402(d) (3).

He had been born in Puerto Rico while his father had been domiciled there, and, although his father and mother had never been married, his father had supported him from his birth, and had taken him to the United States where he was living with the family. The Administrator’s “referee” who decided the case found that in “the child’s birth certificate the wage earner was named as the child’s father; the wage earner was the informant who provided such information.

The wage earner recognized and accepted the child as his own from his birth”; and, as we have said, had supported him “at least from the time that” he “came to the United States in 1944.” The only question therefore is whether the plaintiff was what the statute means by a “child,” and that depends upon § 416(h) (1): that is, whether the courts of New York would have accorded him “the same status relative to taking intestate personal property” that they would have accorded to a child: or, in other words, whether under the law of New York the plaintiff would have inherited the personal property of his father, had his father died intestate.

In Miller v. Miller, 91 N.Y. 315, the Court of Appeals of New York held that, if an illegitimate child be legitimated by the subsequent marriage of his parents in the state where they were then domiciled, his status as legitímate follows him to an after-acquired domicile, and he inherits his father’s real property as though born in wedlock.

However, although nothing but subsequent marriage will legitimate a child born out of wedlock in Puerto Rico, it is true that the Puerto Rican code allows an illegitimate child to inherit his proportion of his father’s property, if his father has “recognized” him as his own — § 504; and, as we have said, the plaintiff was so “recognized,” and would have inherited his father’s personal property, had his father been domiciled In Puerto Rico when he died — § 506(3).

Thus the issue is narrowed to whether the plaintiff would have inherited his share of his father’s personal property when his father died a resident of New York, because, although not legitimate, he would have done so, if his father had been domiciled in Puerto Rico. That he would have inherited his mother’s personal property in New York is true, Decedent Estate Law, McK.Consol.Laws, c. 13, § 83(13); but that right is confined to the mother’s property.

The question whether “legitimacy” is a condition upon the inheritance of the father’s personal property in New York regardless of any right of inheritance elsewhere, has come up only three times in the New York courts, so far as we can find, and always in a Surrogate’s Court; and the first question is whether we should take these decisions as authoritative, or whether we should interpret the New York law independently, as we can best understand it.

We think that we are to take the decisions as authoritative, and . not as the Supreme Court regarded a decision of the Court of Common Pleas of South Carolina in King v. Order of United Commercial Travelers, 333 U.S. 153, 68 S.Ct. 488, .92 L.Ed. 608. Although we can find no decision precisely in point, it appears to us that the. differences- in substance between the Surrogate’s Court and the old Court of Chancery in New Jersey are not enough to make inapplicable the decision of the Supreme Court in Fidelity Union Trust Co. v. Field,. 311 U.S. 169, 61 S.Ct. 176, 85 L.Ed. 109.

Besides, in the case at bar there are three similar, but independent,

interpretations of the same issue, without any intimation of dissidence in the opinions of the higher courts. The three decisions we refer to are In re Vincent’s Estate, Kings County, 1947, 189 Misc. 489, 71 N.Y.S.2d 165; In re Tomacelli-Filomarino’s Estate, New York County, 1947, 189 Misc. 410, 73 N.Y.S.2d 297; and In re Slater’s Estate, New York County, 1949, 195 Misc. 713, 90 N.Y.S.2d 546.

In the first, Surrogate McGarey had before him the question whether an illegitimate child, born in Haiti, inherited by descent from her father who was domiciled in New York at the time of his death, though he remained a citizen of Haiti.

The court held 189 Misc. at page 493, 71 N.Y.S.2d at page 169 that if the law of Haiti “merely enables a natural child, when recognized by its parents or parent, to inherit as a recognized natural child as distinguished • from one which legitimates such child, it is one merely of descent which governs solely the inheritance of property located in that State.” New York courts “will not recognize a law or statute of a * * * state which merely permits an illegitimate child to inherit as an illegitimate in the estate of its father.” In the second case [189 Misc. 410, 73 N.Y.S.2d 299] Surrogate Collins held that the illegitimate child of a Mexican, domiciled in that republic, did not inherit property in New York because her parents had never married, the only method of legitimation known to the Mexican law.

Both her parents had indeed “recognized” her and the Mexican law gave her certain rights of support and inheritance, but this did not give her any “interest whatever in the estate administered here.” In the third decision the father of an illegitimate child, born in Louisiana and there domiciled when the child was born, had died after acquiring a domicile in New York. The law of Louisiana provided for the legitimation of a child by subsequent marriage, Art. 199 of the LSA-Civil Code, or by a declaration by both parents of intention “to legitimate such child,” Art. 200, though the declaration must be “by

an act passed before a notary and two witnesses.” Illegitimates might also be “acknowledged by their father” and then “are called natural children” Art. 202, and this “acknowledgement of an illegitimate child shall be made by a declaration executed before a notary public, in the presence of two witnesses” Art. 203.

Surrogate Franken-thaler decided that [195 Misc. 713, 90 N.Y.S.2d 547] “the Louisiana courts have held, in a long series of decisions, that this statutory device” — a “declaration * * * before a notary” — “is not the exclusive method of acknowledgment and that a child * * * may prove that his parents recognized his legitimate status by other competent evidence.” He then described the evidence that satisfied him that upon “the law and the facts” the child was “legitimate under Louisiana law.” Throughout he assumed that In re Vincent, supra, was correctly decided because in the case at bar “the Louisiana law, unlike that of Haiti * * * provides for legitimation” (underscored) “by acts other than subsequent intermarriage.” We accept the Surrogate’s understanding of the Louisiana decisions, though we have not considered them because the issue is irrelevant here.

The only important factor is that he proceeded upon the premise that it was necessary to decide, not that the child was entitled to inherit in Louisiana, but that she had been “legitimated” by what her father had done while he was domiciled there. The plaintiff’s difficulty is that there is no evidence, as we have said, either in the Code or the decisions that anything other than subsequent marriage of parents will legitimate a child in Puerto Rico, as distinct from giving him rights of inheritance. As for Gonzalez v.

Hobby, D.C., 110 F.Supp. 893, 897, it is enough to distinguish it from the case at bar that the judge held that the plaintiffs’ right to the insurance of their father was not to be determined by “the substantive law of the District of Columbia,” but by “the substantive law of the place where he” [the father] “resided or was domiciled.” The father was domiciled in Puerto Rico when he died, by the law of which, as has appeared, a child may inherit regardless of his “legitimacy”; and it would indeed have been a very harsh ruling to say that the plaintiffs in that case should not be awarded the insurance granted by the statute, although they were entitled to all the rest of their father’s personal property.

On the other hand, if the plaintiff at bar were successful here, the insurance money is the only personal property that devolved upon him from his father. Whatever we may feel about the persistence of the cruel archaism of illegitimacy, it appears to us that Congress plainly meant these rights to descend as if they were parts of the personal property of the insured, and that we should have no warrant for interpolating an exception, however much we might welcome the result. Order affirmed. . Civil Code of Puerto Rico, § 482, 31 L.P.R.A.