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ESTATE OWEN S. HOFFMAN (10/14/83)

filed: October 14, 1983.

ESTATE OF OWEN S. HOFFMAN, DECEASED. APPEAL OF RUTH HOFFMAN DELONG


No. 1716 Philadelphia, 1982, Appeal from Order of the Court of Common Pleas, Orphans' Court Division, of Montgomery County, No. 80159.

COUNSEL

John D. Dunmire, Norristown, for appellant.

William P. Thorn, Philadelphia, for participating party.

Rowley, Wieand and Cirillo, JJ.

Author: Wieand

[ 320 Pa. Super. Page 115]

The principal issue in this case is whether the appellant, Ruth H. DeLong, was able to establish by clear and convincing evidence that she was the biological daughter of Sidney S. Hoffman, deceased, and thus entitled to a one-half share of the residue of the estate of Owen S. Hoffman, the brother of Sidney S. Hoffman. The trial court found that appellant had failed to establish the necessary relationship, and a court en banc affirmed. This appeal followed.

Owen S. Hoffman died July 8, 1978. By the terms of his last will and testament, his residuary estate was devised and bequeathed to his wife. Because Owen's wife had predeceased him without leaving issue, however, the gift lapsed, and the residuary estate passed under the intestate laws to the heirs of the testator. Owen S. Hoffman left surviving as his nearest relative a sister, Amy S. Welker, who is the appellee herein. Ruth DeLong, the appellant, who had been born out of wedlock to the sister-in-law of Sidney S. Hoffman, claimed that she was the natural daughter of Sidney S. Hoffman, a deceased brother of Owen Hoffman and, as such, entitled to one-half of the testator's residuary estate.

Prior to November 26, 1978, Section 2107 of the Probate, Estates and Fiduciaries Code of June 30, 1972, P.L. 508, No. 164, ยง 2, 20 P.S. 2107, provided that a person born out of wedlock was to be "considered the child of his mother but not of his father." In 1977, in the case of Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977), the Supreme Court of the United States held unconstitutional a similar provision in an Illinois statute on grounds that it

[ 320 Pa. Super. Page 116]

    violated the Equal Protection Clause of the Fourteenth Amendment. In response to the Supreme Court decision, the legislature in Pennsylvania enacted an amendment to Section 2107 of the Code which provided, inter alia, as follows:

(c) Child of father. -- For purposes of descent by, from and through a person born out of wedlock, he shall be considered the child of his father when the identity of the father has been determined in any one of the following ways:

(1) If the parents of a child born out of wedlock shall have married each other.

(2) If during the lifetime of the child, the father openly holds out the child to be his and receives the child into his home, or openly holds the child out to be his and provides support for the child which ...


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