Schumm v. Beery

MOORE, P. J.

The only question here for decision is whether a filiation proceeding under section 196a of the Civil Code survives the death of the putative father.

Johan Schumm, an infant, through his guardian

ad litem,

complained that he is the illegitimate son of Gloria Schumm and one Wallace Beery and demanded judgment against his alleged father for $700 per month for permanent support. Before the proceeding could be tried, Wallace had winged his way to the world beyond. Thereupon Johan moved the court to substitute the executors of Mr. Beery’s estate as defendants. Such motion having been denied, the court on its own motion ordered a dismissal of the action. From such orders the infant appeals."

[408]

Appellant’s first contention is that since liability of a father for the support of his legitimate child survives the grave, the support of his illegitimate progeny continues to be a liability of the estate of its deceased parent. In support of such contention appellant cites

Taylor

v.

George,

34 Cal.2d 552 [212 P.2d 505] ;

Estate of Smith,

200 Cal. 654 [254 P. 567] ;

Newman

v.

Burwell,

216 Cal. 608 [15 P.2d 511];

Miller

v.

Miller,

64 Me. 484. Neither the analogue nor the authorities induce acceptance of appellant’s proposition. The illegitimate offspring does not have the statutory standing of that of the legitimate. Hence, the analogy ceases at the threshold. The authorities cited are not in point. While it is true that “the trend of legislation governing the rights of persons born illegitimate is to give them the same status as those born legitimate”