12 Mass. App. Ct. 52

March 13, 1981 - June 10, 1981

Middlesex County


The illegitimate child of a decedent who had acknowledged the child as his during his lifetime, although not in writing, was entitled to status as next of kin and qualified for appointment as administratrix of her father's estate. [53]

The rights of an illegitimate child of a father who died after the effective date of the Equal Rights Amendment to the Massachusetts Constitution but prior to the decision in Lowell v. Kowalski, 380 Mass. 663 (1980), were governed by the principles articulated in the Lowell decision. [53-54]

A judge of a Probate Court may report a case under G. L. c. 215, Section 13, only if it has been "heard for final determination" so that entry of a final judgment may be ordered by the appellate court, or if there is a question as to the correctness of an interlocutory judgment, decree or order which "so affects the merits of the controversy that the matter ought, before further proceedings, to be determined by the appeals court." [54-56]

PETITION filed in the Probate Court for the county of Middlesex on February 23, 1978.

The case was reported by Martin, J.

George P. Jeffreys for Evripides N. Koscotas.

Robert L. Burke for Cynthia A. Paquette.

KASS, J. Upon report from a Probate Court judge pursuant to G. L. c. 215, Section 13, we are asked three questions which, in light of Lowell v. Kowalski, 380 Mass. 663 (1980), are susceptible of restatement as one, viz.: is an illegitimate child the heir of his or her father in circumstances where the father has not acknowledged the child as his in writing? That question was left open in Lowell. Id. at 670.

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The instant case is before us on a statement of agreed facts, which we summarize. Stephen A. Karvelas died intestate on December 13, 1977, survived by two illegitimate children, Cynthia (the petitioner) and Steven G. Karvelas. Stephen A. Karvelas, the decedent, never intermarried (the word employed in G. L. c. 190, Section 7) with the mother of Cynthia and Stephen G., and no adjudication of paternity occurred during the decedent's lifetime. However, "the decedent during his lifetime acknowledged Cynthia A. Paquette and Ste[v]en G. Karvelas as his children." [Note 1] There are two petitions for administration of the estate of the decedent Stephen A. Karvelas. One was brought by Cynthia Paquette who claimed to be the daughter of Karvelas; the second was brought by Evripides N. Koscotas, who was his brother.

Lowell v. Kowalski, supra, held that an illegitimate child whose father acknowledged her as such is entitled to share in the distribution of his estate. That the decedent acknowledged Cynthia and Steven as his children was stipulated by the parties' statement of agreed facts and that agreement obviates any further inquiry by us for other evidence of acknowledgment. [Note 2] Under the principles of Lowell v. Kowalski, Cynthia and Steven were, therefore, entitled to the status of next of kin of the decedent and Cynthia qualified for appointment as administratrix of her father's estate. See G. L. c. 193, Section 1 (where there is no surviving spouse, administration of estate shall be granted to next of kin), and G. L. c. 190, Section 4 (degrees of kinship). [Note 3]

The elder Karvelas died some eleven months after the effective date of the Equal Rights Amendment (E.R.A.) to the Massachusetts Constitution, [Note 4] upon which the Lowell decision

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rested. Koscotas has argued that Lowell worked a change in the law and should not be applied to cases arising out of deaths which occurred prior to the issuance of that opinion. The Lowell case itself, however, dealt with a death which had occurred prior to the court's decision and the court made no effort to alter the usual impact which a common law decision has on past events as well as future events. The Lowell decision did not alter the law; it declared the law as affected by the E.R.A. Accordingly, the principles articulated in Lowell apply to the case at bar. [Note 5] Compare West v. First Agricultural Bank, 382 Mass. 534, 548-552 (1981), a decision dealing with the effect of the E.R.A. on tenancies by the entirety which was expressly made prospective so as not to unsettle vested rights. Subsequent to the proceedings in the Probate Court in this case, Sections 5, 6, and 7 of G. L. c. 190 were rewritten by St. 1980, c. 396, so as to harmonize the statutory scheme with the E.R.A. and the views expressed in Lowell. The rights of illegitimate children of persons who die after the effective date of the 1980 legislation will be governed by those amendments.

It is not entirely clear upon what action in the Probate Court the judge based his reservation and report of the case. Chapter 215, Section 13, as amended through St. 1975, c. 400, Section 59, consists of two sentences. [Note 6] The first sentence authorizes a report of a case which has been "heard for final determination," in which event the judge may "reserve and report the evidence and all questions of law therein for consideration." That procedure is designed to bring the entire case to the appellate court, as on appeal, so that a final judgment may be entered. The judge should not select for

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report specific questions of law which may arise in a case if the resolution of those questions will not enable this court or the Supreme Judicial Court to enter a final judgment. Dunlop v. Claussen, 313 Mass. 715, 716-717 (1943). Curran, petitioner, 314 Mass. 91, 93-94 (1943). O'Brien v. Dwight, 363 Mass. 256, 274 (1973). Matter of Jones, 379 Mass. 826, 828 n.2 (1980). This is not to say, of course, that the judge may not identify the questions which trouble him, while reporting all questions of law in the case. Such a practice is helpful to the appellate court.

Under the second sentence of Section 13, the probate judge may report cases in which an interlocutory judgment, decree or order has been made which, in the opinion of the judge, "so affects the merits of the controversy that the matter ought, before further proceedings, to be determined by the appeals court."

Because nothing in the record discloses whether the Probate Court judge had decided that Cynthia was qualified to be the administrator of the estate of her father and the record is barren of facts which would enable us so to decide, the case is not a proper one for report under the first sentence of Section 13; i.e., we are in no position to order entry of a judgment.

If a judge makes a report under the second sentence of Section 13, i.e., as to the correctness of an interlocutory judgment, decree or order, the report should identify the significant order he has in mind. This was not done in the report before us. From an examination of the docket we observe that the judge denied a motion by Koscotas (the brother) to strike Cynthia's appearance and to dismiss her petition. We deduce that it is the correctness of that action which the judge sought to bring before us. Since so little in the way of taking of evidence and action by the judge was necessary prior to deciding whether to appoint Cynthia and to dismiss Koscotas' petition, the case was less than apt for use of the report procedure on an interlocutory order. Treating the report as from the denial of Koscotas' motion, we answer that the motion was correctly denied because the elder

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Karvelas had, as the parties agreed, acknowledged Cynthia and Steven, although not in writing, and Cynthia, therefore, could petition for administration of the decedent's estate.

The case is remanded to the Probate Court for further proceedings consistent with this opinion.

So ordered.


[Note 1] The quoted material is from the statement of agreed facts.

[Note 2] For conduct which evidences acknowledgment of paternity, see Houghton v. Dickinson, 196 Mass. 389, 391-392 (1907).

[Note 3] Children are of first degree, brothers of second degree. Lombard, Probate Law & Practice Section 277, at 354 (1962).

[Note 4] Article 106 of the Amendments to the Constitution of the Commonwealth.

[Note 5] In Trimble v. Gordon, 430 U.S. 762, 765-766 (1977), the United States Supreme Court held an Illinois statute similar to G. L. c. 190, Section 7 (prior to its amendment in 1980), unconstitutional on equal protection grounds. That case was decided before the elder Karvelas died.

[Note 6] As the case involves the administration of an estate, neither Mass.R. Civ.P. 64, 365 Mass. 730 (1974), nor Mass.R.Dom.Rel.P. 64 governs the report procedure. See Mass.R.Dom.Rel.P. 1.