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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1956

## Text

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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

2

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?

-—

3

‘ 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

ae

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.

5

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

7

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

a

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.

8
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-

9
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»

Be

10
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

11
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

aa

12
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

13
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

14
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

15
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.

16
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

17
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).

18
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.

~—

19
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

20
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.

21

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

22

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,

23
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. . . .

24
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

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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..............

to
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
v.

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)

2

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

3

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.

4

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)

5

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.

6

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.

—
7

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

9

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.

10

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386418_1176%3A1. Public record. Not legal advice.