Petition for Writ of Certiorari — Robles v. Folsom (No. 621)

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CITATIONS

Cases:

Gonzalez v. Hobby, 110 Fed. Supp. 893 ....... 3,

Miller v. Miller, 91 N. Y. (46 Sickels) 315 .... 3,4

Robles v. Folsom, 239 Fed. 2d, 562 ........... 2

Statutes:

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1956

No.

Roeerto Roswes, by his g. a. 1., Pasto Roses,

Petitioner,

against

Marion B. Foisom, Federal Security Administrator,

Respondent.

™

—

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

To the Honorable, the Chief Justice and Associate

Justices of the Supreme Court of the United

States:

Your petitioner, Roberto Robles, by his g. a. 1., Pablo

Robles, prays, by his attorneys Emanuel Redfield and

Gordon L. Potter, that a Writ of Certiorari issue to

review the judgment of the United States Court of

Appeals for the Second Circuit.

The petitioner, upon the death of petitioner's father,

sought the benefits under the Social Security Act pro-

vided for a child of a deceased wage-earner. Benefits

were denied on the grounds that the child was not a

‘child’? in the meaning of the Act. Administrative

remedies being exheusted, your petitioner brought

suit in the United States Court for the Eastern

District of New York to compel payment. On cross

motions for summary judgment the suit was dismissed

without opinion. On appeal to the Circuit Court of

Appeals, the lower Court was upheld by a 2-1 decision

on 10 December, 1956.

Opinions Below

There was no opinion in the District Court. The

majority and dissenting opinions of the Circuit Court

of Appeals are set forth in Appendix A to this

petition which is made a part hereof, and are reported

on 239 Fed. (2nd) 562.

Jurisdiction

The judgment of the Circuit Court of Appeals was

entered on December 10, 1956. The jurisdiction of

this Court is invoked under 28 U. 8S. C., Seetion

1251 (1).

Statutes Involved

Title 42 U. S. C. 402-416 and the Laws of Puerto

Rico Ann. Title 31, par. 441. The pertinent sections

of each are set forth in Appendix C and made a part

of this petition.

Questions Presented

1. Does a person, born under the Civil Law

Puerto Rico, and there receiving through due process

of law a status ‘‘in all respects equal to legitimacy,”’

lose those rights upon removal to the common law

State of New York?

-—

‘ 2. Is ‘‘legitimacy”’’ a requirement under the Social

Security Law for receiving benefits as the ‘‘child’’

of a deceased covered wage-earner ?

Statement

The petitioner is an infant born in Puerto Rico and

now a resident of New York. Under the law of Puerto

Rico he is a ‘‘natural recognized child,’’ as his father

performed the necessary legal ceremonies to give him

} that status.

By the law of Puerto Rico he thus had rights of

inheritance, support, use of family name ‘‘in every

sense identical’’ to legitimate children. (Gonzalez v.

Hobby, 110 Fed. Supp. 893.)

Petitioner’s father moved to New York and set up

residence there with the infant-petitioner as a member

of his household and supported by him. Later, peti-

tioner’s father died, both petitioner and his father

being then residents of New York.

The petitioner then sought Social Security benefits

granted by law to the child of a deceased wage-earner.

The benefits were denied on the grounds that the

petitioner was not the legitimate son of the deceased

wage-earner.

Petitioner believes that his status as one entitled to

inheritance under the law of the plece of his birth

remains unaffected by his and his family’s removal to

| New York. (Miller vy. Miller, 91 N. Y. (46 Sickels)

315.) The dissenting opinion of Chief Judge Clark

upholds the contention of petitioner.

Specification of Error to be Urged

The Cireuit Court of Appeals erred:

1. In denying to the petitioner, because of his resi-

dence in New York, the rights of inheritance granted

to him by the place of his birth, the Civil Law domain

of Puerto Rico.

Importance of the Case

There is here presented a question not yet passed

upon by this Court. One of broad application, of

rapidly increasing importance, and which will con-

tinue to be brought to the Courts below until here

decided. '

Your petitioner is a Puerto Rican residing in New

York, in the common law, continental United States.

In the place of birth, Puerto Rico, the infant-

petitioner had the status of ‘‘a natural recognized

child,’’ giving him a status ‘‘in every sense identical

with”’ that of a legitimate child. (Gonzalez v. Hobby,

110 Fed. Supp. 893.)

The Court below 2-1 held that the infant-petitioner

lost his rights of inheritance upon coming with his

father to New York.

All members of the Court below recognized the

common law rule of Miller v. Miller, 91 New York

(46 Sickels) 315, that the law of the place of birth

concerning a man’s status travels with him.

In the Court below two held that the right of in-

heritance granted by the Law of Domicile was lost

unless the explicit word ‘legitimate’? was used to

describe the petitioner. The minority held that the

status was the right acquired by birth and not merely

the descriptive word.

There are presently, on information and _ belief,

734,350 Puerto Ricans in the United States (Govern-

ment of Puerto Rico data as of 5 March, 1957).

The importance of having decided, by this Court,

the inheritance status of a large number of those

born under the Civil Law and then removing to a com-

mon law state need not be belabored. I have noted,

however, in Appendix B, a copy of a letter showing

the interest of Puerto Rico in this matter.

CONCLUSION

The petition should be granted and the judgment

should be reversed.

Respectfully submitted,

EMANUEL REDFIELD,

60 Wall Street,

New York, New York

APPENDIX A

Opinion

UNITED STATES COURT OF APPEALS

For THE SEconp Circuit

No. 17—October Term, 1956.

(Argued October 8, 1956 Decided December 10, 1956.)

Docket No. 23434

Roserto Roses, by his g. a. 1., Paso Rosgs,

Appellant,

—vV.—

Marion B. Fotsom, Federal Security Administrator,

Appellee.

—

Before:

CiarK, Chief Judge,

Hanp and Swan, Circuit Judges.

Appeal from a judgment of the District Court for

the Eastern District of New York (Galston, J., pre-

siding), summarily dismissing an action brought under

§405(g) of Title 42 U. S. C., to reverse a decision of

the Federal Social Security Administration, which

denied the infant plaintiff’s application for “‘insurance

bdenefits”’ after the death of his father.

Gorvon Lioyp Porter, for the Appellant.

Evuiorr Kananer, for the Appellee.

Appendix A

Hann, Circuit Judge:

This is an appeal from a judgment, summarily dis-

missing 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. 8. C., 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 indi-

vidual.’’ 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 Adminis-

trator shall apply such law as would be applied in de-

termining the devolution of intestate personal pro-

perty by the courts of the State in which such in-

sured 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 infor-

Appendiz A

mation. 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 vy. Miller, 91 N. Y. 315, the Court of Ap-

peals of New York held that, if an illegitimate child

be legitimated by the subsequent marriage of his par-

ents in the state where they were then domiciled, his

status as legitimate 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 prop-

erty, 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

* Civil Code of Puerto Rico §482.

GES»

Appendix A

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 §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 prop-

erty in New York regardless of any right of inherit-

ance 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 inde-

pendently, 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. 8. 153. Although we can find no decision precisely

in point, it appears to us that the differences in sub-

stance 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. 8S. 169.

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,

189 Mise. 489 (Kings County, 1947) ; In Re Tomacelli-

Filomarino, 189 Mise. 410 (New York County, 1947) ;

and In Re Slater, 195 Misc. 713 (New York County,

1949). In the first, Surrogate McGarey had before

him the question whether an illegitimate child, born

Appendia A

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—p. 493—that if the law of Haiti ‘‘merely en-

ables 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 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 ‘‘in-

terest 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 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

Appendia A

public in the presence of two witnesses’’ (Art. 203).

Surrogate Frankenthaier decided that ‘‘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 acknowl-

edgment and that a child * * * may prove that his

parents recognized his legitimate status by other com-

petent 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 Jn 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 sub-

sequent intermarriage.’’ We accept the Surrogate’s

understanding of the Louisiana decisions, though we

have not considered them because the issue is irrele-

vant here. The only important factor is that he pro-

ceeded upon the premise that it was necessary to de-

cide, not that the child was entitled to inherit in

Louisiana, but that sh. nad been ‘‘legitimated’’ by

what her father had done while he was domiciled

there. The plaintiff’s difficulty is that there is no evi-

dence, as we have said, either in the Code or the de-

cisions 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 Gonzales v. Hobby, 110 F. Supp. 893, 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 sub-

stantive 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

Appendix A

domiciled in Puerto Rico when he died, by the law

of which, as has appeared, a child may inherit re-

gardless of his “‘legitimacy’’; and it would indeed

have been a very harsh ruling to say that the plain-

tiffs 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 prop-

erty that devolved upon him from his father. What-

ever we may feei about the persistence of the cruel

archaism of illegitimacy, it appears to us that Con-

gress 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.

CiarK, Chief Judge (dissenting) :

As Judge Hand’s opinion points out, this child from

birth was accepted by the father as his own and a part

of his family; and while the parents were eligible to

marry, they just did not bother to do so. No bar to

either inheritance or receipt of social security bene-

fits could have arisen had father and son remained in

Puerto Rico; but removal to New York now results

in denying these benefits to the recognized child. This

very harsh result comes, in my opinion, from forcing

Anglo-Saxon moral patterns on a family having its

origin in the more tolerant atmosphere of Puerto

Appendix A

Rico and the civil law it follows.!. And this, in turn,

comes about irom an emphasis on names or labels,

rather than on substance, in translating civil law con-

cepts into New York equivalents.

Whereas New York classes all children born out of

wedlock as “‘illegitimates,’’ legal systems influenced

by the Code Napoleon distinguish ‘natural children’’

from others—a natural child being one whose parents

were not legally barred from marrying each other at

the time of the child’s birth or conception.2. By in-

formal voluntary acts a parent can raise a natural

child to the status of ‘‘recognized (or acknowledged)

natural child,’’ thus giving it rights of inheritance

and certain social benefits. Or, by formal acts pre-

scribed in the local civil code, the parent can ‘‘legiti-

mate’’ the child, elevating it above recognized natural

children to the level of those born in wedlock. In

these civil law countries there are three categories of

children—‘‘legitimates,’’ ‘‘acknowledged natural chil-

dren,’’ and others, i. e., bastards; and there are two

different processes for changing status—‘‘legitima-

tion’? and ‘‘acknowledgment.’”

1‘*The comon law of England, which is also the American

common law, is more unfavorable to the illegitimate child than

the civil law of Rome, on which the continental legal systems are

based, namely in two respects: It does not recognize a legal

relationship even between the mother and the child and it does

not allow legitimation by subsequent marriage.’’ Freund, Illegit-

any of the United States and Certain Foreign Countries

2 Robbins & Deak, The Familial Property Rights of Illegitimate

Children: A Comparative Study, 30 Col. L. Rev. 308, 321-325

(1930) ; Note, 15 La. L. Rev. 221 (1954).

3‘*The relation less than legitimation, that of recognized natural

child, may arise by the law of several European states, between a

Appendix A

I cannot agree that the New York law prevents an

acknowledged natural child from taking personal

property if his father dies intestate while domiciled

in New York. It is clear that the status of the child

would be determined by the law of the place where he

was born. Miller v. Miller, 91 N. Y. 315. In that

ease a child born out of wedlock in Wurttemberg at-

tempted to take real property in New York by in-

testacy upon the death of his father. His parents

had subsequently married each other, and the law of

Wurttemberg entitled him to inherit real property

there. Under the then law of New York, however,

subsequent marriage did not ‘‘legitimate’’ children

born out of wedlock and they could not inherit. The

Court of Appeals applied the Wurttemberg law of

inheritance and found for the child.*

In the most recent New York case discussed by my

brethren a child born out of wedlock in Louisiana

whose parents never married was considered eligible

to inherit in New York. Jn re Slater’s Estate, 195

Misc. 713, 90 N. Y. S. 2d 546. Louisiana’s Civil Code

derived from the Code Napoleon and had the concept

parent and a natural child.’’ 2 Beale, A Treatise on the Conflict

of Laws §140.2 (1935).

For a translation of the civil codes of France and Switzerland

dealing with this subject see Freund, op. cit. supra note 1, at 245-

248, 254-256. For a translation of the modern Spanish law on

the subject see Fisher, The Civil Code of Spain 56-70 (5th Ed.

1947). See also Laws of Puerto Rico Ann., tit. 31, §§452-507

(1954), and the Translation of the Civil Code in Force in Cuba,

Porto Rico, and the Philippines, published by the Government

Printing Office in 1899, at 22-27.

4The quotation from the Wurttemberg statute in the Court of

Appeals opinion clearly indicates that the statute governs the

inheritance of real property in Wurttemberg. 91 N. Y. 315, 317.

Appendiaz A

of acknowledged natural child. Under the Louisiana

eases, which were cited in the New York opinion, the

father’s informal acts of attending his daughter’s

christening and later referring to her as his own were

sufficient to confer this status on the child, despite

the literal wording of Art. 203 of the Louisiana Civil

Code. Lange v. Richouzr, 6 La. 560; Succession of

Vance, 110 La. 760, 34 So. 767; Succession of Serres,

136 La. 531, 67 So. 356; Taylor v. Allen, 151 La. 82,

91 So. 635; Succession of Hébert, 33 La. Ann. 1099.

Under other Louisiana cases, which were also cited

in the New York opinion, such informal acts of the

father were insufficient to ‘‘legitimate’’ the child and

elevate it to full legal equality with children born in

wedlock. Hart v. Hoss, 26 La. Ann. 90; Perkins v.

Brownell-Drews Lumber Co., 147 La. 337, 84 So. 894;

Duvigneaud v. Loquet, 131 La. 568, 59 So. 992; Stewart

v. Parish of Jefferson Davis, 17 La. App. 626, 136

So. 659.

These cases held that both acknowledged and legiti-

mated children had rights of intestate succession, and

the distinction between the two groups was significant

only if the child’s claim was contested by an heir with

rights superior to an acknowledged child, but not

superior to a legitimated one. The New York Surro-

gate in In re Slater’s Estate, supra, 195 Mise. 713,

90 N. Y. S. 2d 546, properly did not distinguish be-

tween acknowledged and legitimated children, but

rather classed both types together and contrasted them

with children born out of wedlock and never elevated

—a group which has no rights of inheritance or social

position. Where he spoke of acknowledged children

Appendia A

as ‘‘legitimate”’ or ‘‘legitimated,’’ he used these words

in their New York, and not their Louisiana, sense.5

From the cases he cited it is clear the Surrogate

understood that Louisiana courts would have called

the Slater child ‘‘acknowledged,’’ and not ‘‘legiti-

mated.’’ All commentators who have discussed the

Louisiana cases have noticed that such informal acts

create the first status, rather than the second. My

brethren say these cases are irrelevant, and they pre-

fer to interpret the Surrogate’s opinion in the light of

four Louisiana statutes. But the cases which the Sur-

rogate selected to support his decision seem a far

better indication of his meaning than the naked text

of these statutes—two of which he did not cite, and

all of which are discussed in these cases.

Thus the result reached by the Surrogate appears

to be good sense, as well as good law. Since civil law

jurisdictions have three categories of children and

New York has only two, the ‘‘acknowledged natural

child’’ must be likened to either New York ‘‘legiti-

mates’’ or New York ‘‘bastards.’’ The chief similarity

to the New York bastard, for purposes of intestate

succession, is a mere semantic identity—neither is

labeled ‘‘legitimate.’’ On the other hand, the acknowl-

edged child is one whom the father claimed as his own

5See note 10 infra, where a commentator similarly used the

word ‘‘legitimated’’ in its Anglo-Saxon sense to cover children

“‘acknowledged’’ through Louisiana procedures.

6 E.g., Professor Leonard Oppenheimer’s comprehensive article,

Acknowledgment and Legitimation in Louisiana—Louisiana Act

50 of 1944, 19 Tulane L. Rev. 325 (1945), and the works cited

by him; Freund, op. cit. supra note 1, at 24; Stevenson, Analysis

and Tabular Summary of State Laws Relating to Illegitimacy in

the United States 16-19 (1929) ; U. S. Dept. of Labor, Children’s

Bureau, Chart No. 16, ‘‘Paternity Laws,’’ 2 (1938); Note, 15 La.

L. Rev. 221 (1954).

Appendia A

with knowledge that the act would confer on it rights

of inheritance and greater social status.

My brethren rely on an earlier opinion of another

Surrogate which takes their position; but it is unper-

suasive authority, since it marches from a premise

previously rejected by the New York Court of Appeals.

In re Vincent’s Estate, 189 Misc. 489, 71 N. Y. S. 2d

165. There a Surrogate refused to consult the foreign

law of inheritance in determining whether acknowl-

edged children were to be analogized to New York

‘‘legitimates’’; instead he looked to the foreign law

of legitimacy. 189 Mise. 489, 71 N. Y. S. 2d 165, 169.

In this initial step he became involved in semantics

which led necessarily to the conclusion that persons

whom foreigners call ‘‘legitimate’’ are the only ones

New Yorkers can treat as ‘‘legitimate’’ for pur-

poses of inheritance. As pointed out above, the Court

of Appeals proceeded more logically in the Miller case,

91 N. Y. 315, and looked to the foreign law of inherit-

ance in such circumstances. Whether the author of the

Slater opinion, 195 Mise. 713, 90 N. Y. S. 2d 546, was

convincing or not in his effort to distinguish the

Vincent case, 189 Mise. 489, 71 N. Y. S. 2d 165, he

certainly had it before him and rejected its result.?

Faced as we are with a conflict of New York cases

we should follow the most recent state decision,

especially since the contrary authority contradicts a

lengthy, well-reasoned, unanimous opinion of the

7 The other case cited by my brethren, In re Tomacelli-Filo-

marino, 189 Mise. 410, 73 N. Y. S. 2d 297, does not contain a

sufficient statement of the Mexican law to indicate whether or not

the child involved was in the same position as the plaintiff; in

any event the decision relies wholly on the Vincent case, 189 Misc.

489, 71 N. Y. S. 2d 165, and adds nothing to it.

~—

Appendix A

highest state court. The growing tendency of the

New York courts to look with more sympathy on the

claims of illegitimates leads to the same result. See

In re Anonymous’ Estate, 204 Mise. 1045, 126 N. Y. S.

2d 749. Considerations of policy and humanity point

the same way. In such circumstances we should not

be more harsh than the courts of the state whose law

we are charged to apply. See Bloch v. Ewing, D. C.

S. D. Cal., 105 F. Supp. 25.

Since, as I believe, acknowledged natural children

may take by inheritance in New York, the plaintiff

should prevail. The Puerto Rican Civil Code, which

derives from the Louisiana and Spanish Civil Codes,®

has the same three categories of legitimates, recognized

natural children, and others.® Like the Louisiana law

cited in the Slater case, 195 Mise. 713, 90 N. Y. S. 2d

546, Puerto Rican law distinguishes between natural

children who have been ‘‘recognized’’ and those who

have been ‘‘legitimated.’? The former have limited

rights of inheritance and social status; the latter

are raised to full equality with chiidren born in

wedlock.” It is true that the Puerto Rican procedures

8 See the historical notes to Laws of Puerto Rico Ann., tit. 31,

§§442-507, especially §442 (1954).

9 Sec. 442 is the same as §§178-180 of the La. Civil Code of

1870, and defines legitimate and illegitimate children. Secs. 461-

466 further define legitimate children and state their rights. Sees.

481-486 govern the process of ‘‘legitimation.’’ Secs. 501-506

define natural children, prescribe the modes for recognizing them,

and state the rights of recognized natural children. Secs. 507-

514 govern the right of other children to support.

10 See U. S. Dept. of Labor, op. cit. supra note 6, at 2: ‘‘The

law of Louisiana differs from that of other States in being based

on the Napoleonic Code. Only the child of persons who might

legally have married at the time of the child’s conception, may be

legitimated on marriage of his parents. Such children, called

Appendix A

for raising natural children to full legitimacy are

somewhat different from the procedures in Louisi-

ana ;'! but the difference cannot distinguish the Slater

ease from this one, since in both cases the child was

only ‘‘acknowledged’’ under local law, and in neither

ease did the parents utilize the local procedure for

elevating their child to full equality with children

born in wedlock.

I think we should reverse and direct judgment for

the plaintiff.

natural children, are the only children born out of wedlock whose

interests are protected by the Louisiana law. In addition to

legitimation on formal acknowledgment of paternity and marriage

of the parents, such a child may be ‘legitimated’ for purposes of

inheritance by either the natural mother or father on declaration

of intentions before a notary public or two witnesses. The law

= Puerto Rico is similar in origin and similarly defines a natural

child.’’

11In Puerto Rico at the time when the plaintiff was born, full

legal equality for children born out of wedlock was possible only

if the parents subsequently married. Laws of Puerto Rico Ann.,

tit. 31, §482 (1954). In Louisiana at the time of the Slater child’s

birth such equality was conferred only if there were formal acts,

either before a notary or in the marriage contract. E.g., Perkins

v. Brownell-Drews Lumber Co., 147 La. 337, 84 So. 894; Du-

vigneaud v. Loquet, 131 La. 568, 59 So. 992; Succession of Serres,

136 La. 531, 67 So. 356. In both jurisdictions later legislation

has made it much easier for children born out of wedlock to

attain full equality. See Oppenheimer, Acknowledgment and

Legitimation in Louisiana—Louisiana Act 50 of 1944, 19 Tulane

L. Rev. 325 (1945); Laws of Puerto Rico Ann., tit. 31, §441

(1954), passed in 1952.

APPENDIX B

COPY

COMMONWEALTH OF PUERTO RICO

DEPARTMENT OF LABOR

88 Columbus Avenue, New York 23, N. Y.

Telephone, Susquehanna 7-2900

March Ist, 1957

Mr. Gordon L. Potter

Counsellor-at-Law

58 Park Avenue

New York 16, New York

Dear Mr. Potter:

In the matter of Roberto Robles and the Federal

Security Administrator, I wish to inform you that

this office is extremely interested in this case and

has petitioned the Department of Justice of the

Commonwealth of Puerto Rico to consider filing an

amicus curiae in the proceeding to be brought before

the Supreme Court of the United States.

I would appreciate it if you kept me informed on

this matter.

Sincerely yours,

/8/ JOSEPH MONSERRAT

Director

New York Office

JM:je

APPENDIX C

Statutes Involved

Laws of Puerto Rico Ann., Title 31, sec. 2431.

Rights of Acknowledged Natural Children When

There Are Legitimate Children.

When the Testator leaves legitimate children or

descendants, and natural children legally acknow-

ledged, each of the latter shall have a right to a por-

tion equal to that pertaining to each of the legitimate

children who have not received any advantage or

extra portion.

Title 31, sec. 506. ‘Rights of recognized natural

child’’.

A recognized natural child has the right:

1. To use the surname of the parent making

recognition,

2. To be supported by the same,

3. To receive the hereditary portion deter-

mined in this title.

Title 42 U. S. C. 402-416. 42 U.S. C. See. 402(d),

so far as pertinent here, reads as follows:

**(d) (1) Every child (as defined in section

216(e)) of an individual . . . who died a fully

or currently insured individual after 1939, if

such child—

**(A) has filed application for child’s insur-

ance benefits,

Appendix C

**(B) at the time such application was filed

was unmarried and had not attained the age of

eighteen, and

*“*(C) was dependent upon such individual at

the time such application was filed, or, if such

individual has died, was dependent upon such

individual at the time of such individual’s death,

shall be entitled to a child’s insurance bene-

AN ES.

Section 416(e), so far as pertinent here, reads as

follows:

‘‘e) The term ‘child’ means (1) the child of

an individual, and . . . (3) in the ease of a de-

ceased individual, (a) an adopted child, or (b)

a stepchild who has been such stepchild for not

less than one year immediately preceding the day

on which such individual died. In determining

whether an adopted child has met the length of

time requirement in clause (2), time spent in the

relationship of stepchild shall be counted as time

spent in the relationship of adopted child.”’

42 U.S. C., See. 402:

(3) A child shall be deemed dependent upon

his father or adopting father at the time specified

in paragraph (1)(c) of this subsection unless at

such time, 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. . . .

Appendix C

Section 416(h)(1) reads, so far as pertinent, as

follows:

‘*In determining whether the applicant is the

wife, husband, widow, widower, child or parent

of an . . . insured individual, the Administrator

shall apply such law as would be applied in de-

termining the devolution of intestate personal

property by the courts of the State in which such

insured individual . . . was domiciled at the

time of death. . . . Applicants who according

to such law would have the same status relative

to taking intestate property as a . . . child,

. Shall be deemed such.”’

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CITATIONS

Battalico v. Knickerbocker Fireproofing Co., 294 N.Y.

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Helvering v. Stuart, 317 U.S. 154.................05. 5

RS RR GS RP errorsrrre res 6

Propper v. Clark, 337 US. 472.................00005 5

Slater’s Estate, In re, 90 N.Y.S. 2d 546................ 7,8,9

Spiegel, Estate of v. Commissioner, 35 U.S. 701........ 5

Tomacelli-Filomarino’s Estate, In re, 73 N.YS. 2d

DO “sedi Gas Chaves cnckenakkeGediuees sewn puepeeain

Statutes:

Laws of Puerto Rico Ann.:

PILE PAT TIT CRN OD ne

Social Security Act, 49 Stat. 620, as amended 64 Stat.

492, 42 U.S.C. 401, et seq.:

IRS hg 4s be wha nbnanabs USeusconewabeas

New York Decedent Estate Law, Section 83(13) ......

New York Workmen’s Law, § 2 (11) ..............55-

Surrogate’s Court Act of New York, § 40..............

NO@ oN * Or to

(1)

Inthe Supreme Court ofthe Wnited States

OctToBER TERM, 1956

No. 621 Misc.

RoBerto Rosxgs, by his g.a.]., PaBLo ROBLES, PETITIONER

Marion B. FoisoM, FEDERAL SECURITY ADMINISTRATOR

ON MOT'ON FOR LEAVE TO PROCEED IN FORMA PAUPERIS

AND ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SECOND

CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION TO THE

GRANTING OF THE PETITION FOR A WRIT OF CERTIO-

RARI

OPINIONS BELOW

The District Court rendered no opinion. The opin-

ion of the United States Court of Appeals for the Sec-

ond Circuit (Pet. App. 7-20) is reported at 239 F. 2d

562.

JURISDICTION

The judgment of the Court of Appeals was entered

on December 10, 1956 (Pet. App. 7). The petition for

a writ of certiorari was filed on March 11, 1957. The

jurisdiction of this Court is presumably invoked under

28 U.S.C. 1254(1).

‘ Petitioner, at page 2 of the petition, invokes the jurisdiction of

this Court under 28 U.S.C. 1251(1)—the “Original Jurisdiction”

section. We assume that this was an inadvertent error.

(1)

QUESTION PRESENTED

Petitioner seeks insurance benefits as the ‘‘child’’ of

a deceased wage earner covered by the Social Security

Act. The Act provides that the status of a ‘‘child”’ shall

be determined according to the laws governing the

devolution of intestate personal property in the state

of the wage earner’s domicile at his death. The wage

earner, at his death, was domiciled in New York.

The question presented is whether the Court of Ap-

peals for the Second Circuit properly concluded, upon

the basis of the controlling New York law, that peti-

tioner would not have been able to share as a child in

the devolution of his father’s intestate personal prop-

erty.

STATUTES INVOLVED

The Social Security Act, 49 Stat. 620, as amended, 64

Stat. 492, 42 U.S.C. 401 et seq., provides in pertinent

part:

Section 202. * * *

(d) * # &

(1) Every child * * * of an individual who died a

fully or currently insured individual after 1939,

* & #

* * * * *

shall be entitled to a child’s insurance benefit * * *

Section 216. * * *

(h) * *

(1) In determining whether an applicant is the

* * * child, * * * of a fully insured or currently

insured individual for purposes of this title, 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 he was domiciled at the time of his death,

***. Applicants who according to such law would

have the same status relative to taking intestate

personal property as a * * *, child, * * * shall be

deemed such.

Title 31 of the Laws of Puerto Rico Ann., provides

in pertinent part:

Sec. 482

The legitimation of children had out of wedlock

shall be accomplished by the subsequent reciprocal

marriage of the parents; * * *

Sec. 506

A recognized natural child has the right:

* * #

3. To receive the hereditary portion determined

in this title.

STATEMENT

By suit brought in the District Court, petitioner

sought reversal of the final decision of the Federal

Social Security Administration denying his applica-

tion for insurance benefits as the alleged child of a de-

ceased wage earner. The undisputed facts may be

summarized as follows:

The deceased wage earner, Jose Robles, died domi-

ciled in New York on October 17, 1950 (R. 4).22 He was

the natural father of the infant petitioner, Roberto

Robles, who was born out of wedlock on December 8,

1943, in Puerto Rico, where the wage earner was then

domiciled (R. 4, 13). In the child’s birth certificate

the wage earner was named as the child’s father, such

? Record references are to the record from the Court of Appeals,

which is on file with this Court.

information having been provided by the wage earner

(R. 13). The wage earner recognized and accepted the

child as his own from birth. From at least the time

that the wage earner came to the United States in 1944,

the child lived with the wage earner and his family, and

the wage earner supported the child (R. 13).

Following the wage earner’s death, the grandfather

of the infant petitioner filed an application for ‘‘child’s

insurance benefits’? on behalf of Roberto Robles (R.

4a). On January 11, 1952, the Social Security Admin-

istration’s Bureau of Old-Age and Survivors Insurance

disallowed the claim on the ground that the claimant

had not met the relationship requirement of the Act as

a ‘‘child’’ of the wage earner. A referee in the Social

Security Administration’s Office of Appeals Council,

after a hearing, sustained the Bureau’s decision, and

on October 15, 1952, the Appeals Council affirmed the

referee’s determination. (R.4a). The Appeals Coun-

cil’s decision thus became the ‘‘final decision of the

Administrator’? within the meaning of Section 205(g)

of the Act, 42 U.S.C. 405(g).

Petitioner then brought suit against the Adminis-

trator in the District Court, claiming entitlement to the

insurance benefits and seeking a reversal of the Ad-

ministrator’s decision (R. 4, 4a). Petitioner and re-

spondent moved for summary judgment (R. 7, 8).

Judge Galston granted respondent’s motion for sum-

mary judgment, denied that of petitioner, and dis-

missed the complaint (R. 9-10).

Petitioner appealed (R. 11), and the Court of Ap-

peals affirmed, Judge Clark dissenting (R. 26). After

a careful and detailed analysis of the controlling New

York decisions, the majority (Judges Hand and Swan)

concluded that petitioner would not be entitled to share

in the intestate personal property. of his father in New

York, and was therefore precluded from claiming a

“‘child’s’’ status, and taking any benefits as such under

the Social Security Act (Pet. App. 8-13).

ARGUMENT

The sole question raised by this petition is whether

the Court of Appeals for the Second Circuit properly

concluded that, under New York law, petitioner would

not have been able to share as a child in the devolution

of his father’s intestate personal property. Since it

is apparent that neither federal nor constitutional ques-

tions are involved, and since the controlling New York

authorities fully support the decision of the court below,

further review by this Court is unnecessary.*

By the terms of Section 202(d) of the Social Security

Act, as amended (supra, p. 2), petitioner’s eligibility

for “‘child’s insurance benefit’’ is, among other factors,

dependent upon his having the status of ‘‘child”’ of the

deceased wage earner. Section 216 (h)(1) of the Act

(supra, p. 2) expressly provides that in making the de-

termination as to whether the claimant is a ‘‘child”’ of

the deceased wage earner, 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.’ Petitioner’s

father was domiciled at his death in the State of New

York, and therefore it is the applicable law of that state

* Indeed, this Court has specifically stated that it will leave un-

disturbed a Court of Appeals’ interpretation of local law if that

interpretation does not appear unreasonable. Helvering v. Stuart,

317 U.S. 154, 164; see also Estate of Spiegel v. Commissioner, 335

US. 701, 707-708; Propper v. Clark, 387 U.S. 472, 486-487.

which determines whether petitioner was a “child”

within the meaning of the Act, i.e., whether under the

law of New York petitioner would have inherited the

intestate personal property of his father.

Although New York, by statute, has expressly pro-

vided that an illegitimate child can inherit the personal

property of his mother (Section 83(13) of the New

York Decedent Estate Law), the New York legislature

has not extended to the illegitimate child, even if ac-

knowledged by the father,.a similar right of inheritance

with respect to the father’s property. The New York

Court of Appeals has held, however, that if an illegiti-

mate child becomes legitimated by the subsequent

marriage of his parents according to the laws of the

state or country where the marriage takes place and

the parents are then domiciled, such legitimacy will

follow the child wherever he may go, and he would thus

be entitled in New York to all the rights flowing from

that status. Miller v. Miller, 91 N.Y. 315. Therefore,

there would ve no question that had petitioner become

legitimated through the subsequent marriage of his

parents (the only method of legitimation in Puerto

Rico, Laws of Puerto Rico Ann., Tit. 31, §482, supra,

p. 3) that status would have enablefhim to inherit his

father’s property in New York. Nor is there any ques-

* On the other hand, New York has seen fit to extend Workmen’s

Compensation benefits to acknowledged illegitimate children who

were dependent upon the deceased worker. New York Workmen’s

Compensation Law, §2 (11). It is pertinent to note, also, in

view of Judge Clark’s belief that “acknowledged natural children

may take by inheritance in New York” (Pet. App. 19), that a New

York court has specifically stated that although acknowledged il-

legitimate children are entitled to benefits under Workmen’s Com-

pensation Law they are not, under the Decedent Estate Law, en-

titled to share in their father’s estate. Battalico v. Knickerbocker

Fireproofing Co., 294 N.Y Supp. 481, 486-487.

—

tion that petitioner, as an acknowledged illegitimate

child, would have been entitled to inherit his father’s

personal property, had his father been domiciled in

Puerto Rico when he died. Laws of Puerto Rico Ann.,

Tit. 31, §506, supra, p. 3. But the Surrogate’s Court of

New York, which in that state is the court empowered

to determine the devolution of intestate personal pro-

perty (Surrogate’s Court Act of New York, § 40), has

held, on the three oceasions in which the issue has arisen,

that regardless of any right of inheritance elsewhere,

the child must be of legitimate status in order to in-

herit his father’s personal property in New York. In

re Vincent’s Estate, 71 N.Y.S. 2d 165; In re Tomacelli-

Filomarino’s Estate, 73 N.Y.S. 2d 297; In re \Slater’s

Estate, 90 N.Y.S. 2d 546. It was these controlling de-

cisions to which the court below properly turned in ar-

riving at its decision that petitioner did not meet the

relationship requirements of the Act.

In re Vincent’s Estate, supra, is indistinguishable

with respect to the issue that is here involved, except

that the child there was born in Haiti, rather than

Puerto Rico. Rejecting the claimant’s contention that

her inheritance rights as a recognized child under the

laws of Haiti enabled her to inherit as a legitimate child

in New York, the Surrogate said (71 N.Y.S. 2d at 169):

If the law of the Republic of Haiti, the applica-

tion of which is envoked by the claimant, is one

which merely enables a natural child, when recog-

nized 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, and as such can have

no extraterritorial operation so as to control the

course which realty located in this State must take

or the devolution of personal property of a decedent

actually domiciled in this State at the time of his

death. Consequently, the courts of this State will

not recognize a law or statute of a foreign country

or state which merely permits an illegitimate child

to inherit as an illegitimate in the estate of its

father, as distinguished from one which legitimates

the illegitimate child.

Similarly, the Surrogates in Tomacelli, supra, and

Slater, supra, in determining whether the claimants

were entitled to inherit in New York, looked to the

place of their birth, not to establish rights of inherit-

ance at their birthplace, but to determine whether acts

of legitimation had there occurred. In his dissent, Judge

Clark states that Tomacelli ‘‘does not contain a suffi-

cient statement of the Mexican law to indicate whether

or not the child involved was in the same position as the

plaintiff ; [and] in any event the decision relies wholly

on the Vincent case * * *, and adds nothing to it.’’ (Pet.

App. 18, fn.7). As the majority observed, however, the

case clearly shows that the child had been “‘recognized”’

by her father and was entitled, by virtue of that recog-

nition, to certain rights of inheritance in Mexico; how-

ever, because the child’s parents had never married

(the only method of legitimation known to the Mexican

law), the Surrogate held that the child was not entitled

to an interest in the estate administered in New York.

Whether or not this decision ‘‘adds” anything to the

Vincent case is beside the point; the pertinent fact is

that it represents a similar interpretation by another

New York Surrogate of the precise issue that is here

involved. And the Surrogate in Slater, supra, finding

that the claimant had become legitimated according to

the Louisiana law there involved, properly concluded

that the child was entitled to inherit in New York. All

three Surrogates, therefore, followed the same exact

path in arriving at their respective decisions, i.e., first,

to determine whether acts of legitimation had taken

place according to the law of the child’s birthplace, and,

if so, to allow the child to inherit in New York.

In view of the undisputed fact that nothing other

than subsequent marriage of parents will legitimate a

child in Puerto Rico, and since petitioner’s parents had

never married, the Court of Appeals properly con-

cluded, upon the basis of the applicable New York Law,

that petitioner was not entitled to inherit the intes-

tate personal property of his father, and was there-

fore not entitled to insurance benefits under the Act.

Since Congress clearly intended that the right to insur-

ance benefits should be determined upon the basis of the

claimant’s status in the state in which the wage earner

was domiciled at the time of his death, the court below

had no other recourse. As Judge Hand observed (Pet.

App. 18):

Whatever we may feel about the persistence of

the cruel archaism of illegitimacy [in New York],

it appears to us that Congress plainly meant these

rights to descend as if they were parts of the per-

sonal property of the insured, and that we should

have no warrant for interpolating an exception,

however much we might welcome the result.

CONCLUSION

For the foregoing reasons, it is respectfully submit-

ted that the petition for a writ of certiorari should be

denied.

J. Les RankIN,

Solicitor General.

Grorce CocHran Dovus,

_.ssistant Attorney General.

SaMvuet D. Sane,

SEYMOUR FARBER,

Attorneys.

AprIL, 1957.

WY U. &. GOVERNMENT PRINTING OFFICE: 1987 = 421963 tose

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