Theodore Schultz, plaintiff's father and administrator of Martin Trask's estate, filed a petition in Lake Superior Court for a determination of heirship and an order was entered in the probate proceedings dated June 9, 1964. The order states in part as follows:

"That the paternity of Diana Lynn Trask has been established as required under Burns 6-207; that Diana Lynn Trask is the child of Martin L. Trask and entitled to inherit from her father, the aforementioned Martin L. Trask, deceased; and that said child is the sole heir of Martin L. Trask."

Martin L. Trask's estate had no assets in it.

Plaintiff argues that the Secretary and this Court are bound by the decision entered in the probate court determining that Diana Trask was the child and sole heir of decedent. Plaintiff's argument, in this respect, is apparently two-fold. Plaintiff contends the probate court determination is conclusive and binding under the doctrines of res judicata and under the full faith and credit clause of the Constitution. Secondly, plaintiff contends that the probate court's decision is binding on this court under the

Erie doctrine under principles of stare decisis. Plaintiff also contended at the hearing before the Secretary that Sharon Schultz and the decedent had entered into a valid common law marriage.

Defendant contends that there was no valid common law marriage nor could there be since such marriges are outlawed by statute in this state. Defendant further contends that the Secretary and this Court are not bound by the probate court decision establishing Diana Trask as sole heir of the decedent.

As far as common law marriage is concerned, it is quite clear from the transcript that no common law marriage existed in this case. Burns 44-111, effective January 1, 1958, provides:

"All marriages known as 'common law' marriages entered into subsequent to the effective date of this Act shall be and the same are hereby declared null and void."

Sharon Schultz testified that her "relationship" with the decedent commenced in June, 1961. Their "elopement" occurred in September, 1961. Therefore, it is clear that no valid common law marriage could have resulted. Plaintiff argued below that the case of In Re Sutherland Estate, 195 N. E. 2d 778 (Ind. App. 1964) validated common law marriages despite Burns 44-111. This contention is without merit for the Sutherland case merely held that a common law marriage contracted prior to the effective date of the above statute was valid. Finally, even without considering the above statute, the evidence below clearly shows that the inception of the relationship below was purely sexual and that neither party ever considered himself married. Everything was in futuro rather than in praesenti. They planned to get married in the future but never did.

Plaintiff's primary contention is that the probate court order establishing Diana Trask as sole heir of decedent must be recognized in these proceedings. Plaintiff argues in the first instance that this order is conclusive under the full faith and credit clause of the Constitution. Plaintiff asserts that

the Social Security Administration received "proper notice" under Burns 6-606 and is therefore bound by the probate court determination and may appeal the probate court determination by virtue of Burns 6-606.

Plaintiff is in error for several reasons. Burns 6-606 relates to the procedure for determining heirship and states in pertinent part as follows:

"(d) The decree of the Court (determining heirship) shall be conclusive of the facts determined therein on any interested person who has been notified personally or by mail in accordance with the provisions of this code, subject to the right of appeal." (Italics added.)

Subsection (a) provides as follows:

"Upon filing of the petition, the court shall fix the time of hearing thereof, notice of which shall be given to all persons known or believed to have any interest in the estate or any part thereof as heir or through an heir of decedent. In addition, notice by publication shall be given to all unknown heirs." (Italics added).

Plaintiff states in its brief at page 3, that the Social Security Administration received notice of the order of the probate court determining Diana to be the sole heir. Obviously this does not comply with the notice of hearing requirement noted above. Furthermore, the Social Security Administration is obviously not a "person having an interest in the estate as heir or through an heir of decedent." Therefore, the probate court determination is not conclusive even under Indiana Law.

Nor is the probate court determination conclusive under the full faith and credit clause or under principles of res judicata as enunciated in the case law which has evolved in connection with claims for Social Security benefits. Plaintiff attempts to distinguish two of the cases cited by the government which state that ex parte probate court orders are not binding upon the Secretary. See Pattern v. Fleming, CCH UNEMPLOYMENT INSURANCE REPORTER Vol. 1A, Fed. Para. 8985 (D.C. Conn. 1960); Miller v. Ribicoff, 198 F. Supp. 819 (Mich. 1961), SSR 62-62c, C. B. 1962, p. 88. Plaintiff distinguishes these cases on the ground that they did not involve an order by a probate court of record as in the instant case nor did they involve a probate court order entered in the state where the decedent was domiciled applying the law of the state of domicile. However, plaintiff does not even attempt to distinguish the cases of Marek v. Fleming, 192 F. Supp. 528 (D. Tex. 1961) and Nigro v. Hobby, 120 F. Supp. 16 (D. Neb. 1954). In the Marek case, claimant contended that a state probate court order was entitled to full faith and credit where the probate court had found claimant to be the widow of the deceased wage earner. The case holds that the probate court order was not entitled to full faith and credit and the following appears at page 533:

"Such orders, however, are in no way controlling in the present proceedings. The Secretary neither was, nor properly could have been made, a party to the probate court proceedings. The Secretary had no opportunity to contest claimant's statement that she was wage earner's lawful widow. Manifestly, the Secretary is not bound by such an ex parte incidental finding."

The Nigro case involved the issue of whether a finding by a state probate court as to the time of death of wage earner was binding upon the Secretary. The Court stated:

"The finding of the probate court does not under principles of res judicata or collateral estoppel prevent the issue of the time of decedent's death from being considered and determined in this action. The Secretary was not a party to the Nebraska proceeding and the money sought to be recovered in this action was not part of the res over which the probate court exercised jurisdiction." (Citations omitted.)

The cases of Fennel v. United States, 67 F. 2d 768 (5th Cir. 1933) and Ramsey v. United States, 61 F. 2d 644 also support the government on this issue. So do the U. S. Supreme Court cases of Hilton v. Guvot, 159 U. S. 113 (1895); May v. Anderson, 345 U. S. 528 (1953) and Hansberry v. Lee, 311 U. S. 32 (1940) for these cases indicate that a judgment against a non-party rendered without jurisdiction over the subject matter is not binding as against such party.

Plaintiff also contends that the state probate court order is in accord with Indiana law and is binding on this court as a precedent and application of Indiana law by a court of this state. As a precedent the "order" below is of little value since it appears to have been rendered in a non-adversarial proceeding. The order states that the paternity of Diana Trask has been established as required under Burns 6-207.

* * *

Burns 6-207 deals with the rights of illegitimate children as to intestate property. It should be noted that this is also the criterion for determining whether a claimant is a "child" entitled to child's insurance benefits under the Social Security Act. Burns 6-207 provides in pertinent part as follows:

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"(b) For the purpose of inheritance to, through and from an illegitimate child, such child shall be treated the same as if he were the legitimate child of his father, if but only if: (1) the paternity of such child has been established by law, during the father's lifetime; or (2) if the putative father marries the mother of the child and acknowledges the child as his own.

"The testimony of the mother may be received in evidence to establish such paternity and acknowledgment but no judgment shall be made on the evidence of the mother alone. The evidence of the mother must be supported by corroborative evidence or circumstances." (Italics added.)

The commission comments to this section quite clearly indicate that an illegitimate child may inherit from his father only if the above two enumerated conditions are met. The case of Thacker v. Butler, 184 N. E. 2d 894 (Ind. App. 1962) also is quite clear that these are the only two ways an illegitimate child can inherit.

In the case at bar, neither of these conditions has been fulfilled. Sharon Schultz never married decedent so condition two is not applicable. Nor was the paternity of Diana Trask established during the lifetime of the decedent. This is the law of Indiana as unequivocally stated in the statute and cases. Therefore, the probate court order below is certainly not binding as a precedent in this case.

Plaintiff does argue that Burns 3-639 should be read in pari materia with Burns 6-207. Burns 3-639 relates to suits by children born out of wedlock against a putative father to obtain support, care, and maintenance. Burns

3-639 provides that if the defendant putative father dies after the filing of the complaint the action may still be maintained against the putative father's estate and that no judgment may be rendered on the basis of the mother's testimony alone.

Plaintiff argues that if paternity is established under 3-639, this is sufficient under Burns 6-207 if one reads the statutes together. Again, plaintiff is in error. Burns 3-639 has nothing to do with inheritance rights. To do what plaintiff asks would be to erase the first requirement under Burns 6-207 which does deal with inheritance rights and does require the paternity to be established during the lifetime of the father. There is a very obvious reason why the inheritance statute differs from the paternity statute in this respect. If an illegitimate child can wait until after the death of the putative father to establish his inheritance rights, this would work havoc on the administration of estates for those heirs whose rights are determined as of the death of decedent would be subjected to either delay or a later claim by the illegitimate child who later establishes paternity.

One additional point should be noted: Not even Burns 3-639 was complied with here for the complaint to establish paternity was not filed before the death of decedent since the child had not even been born at the time of decedent's death. The paternity action under 3-639 only survives if the defendant putative father dies after the filing of the complaint.

For these reasons, this Court is compelled to affirm the decision of the Secretary.

*

SECTIONS 216(e) and 216(h) (2) (A).-CHILD'S INSURANCE BENEFITS DETERMINATION OF STATUS OF CHILD-CONTRACT TO ADOPT

20 CFR 404.1101 and 404.1109

SSR 66-45

Where prior to the birth of the claimant-child her mother entered into an agreement with the wage earner and his wife in the State of Colorado to let the worker and his wife take the child after birth and keep and care for her and at their option legally adopt her, and where the worker and his wife raised the child as their own but did not legally adopt her, held, the agreement did not constitute a contract to adopt the child and therefore she is not the worker's child for purposes of entitlement to child's insurance benefits.

Prior to the birth of the claimant-child, C, her mother, M, entered into an agreement in the State of Colorado with the worker, R, and his wife, W, whereby R and W would provide M with a home and confinement expenses and M executed a written consent, in pertinent part, that R and W:

may keep and care for said child in their home and further consents that they may at their option and at such time as they may choose institute legal proceedings for the adoption of said child, it being understood that the undersigned will execute any and all documents that may be required in the course of such adoption proceedings instituted. . . .

C, an illegitimate child, was born October 5, 1960, in Colorado. Pursuant to the agreement, R and W took C shortly after birth and treated her as their

child. However, they did not institute legal adoption proceedings since they feared that if they went to an adoption agency, C would be taken from them due to their limited income. R died in Colorado on May 5, 1965, and W filed an application for child's insurance benefits on behalf of C.

To qualify for child's insurance benefits, C must be the "child" of the wage earner as defined in section 216(e) of the Social Security Act. She meets this definition, as pertinent to this case, if she meets the requirements of section 216(h) (2) (A) of the Act.

Section 216(h) (2) (A) provides, as applicable to this case, that in determining whether an applicant is the "child" of a deceased insured individual, the Secretary shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which the insured individual was domiciled at the time of his death. In a State whose laws provide that where a foster parent has been given permanent custody of a child in return for a promise to adopt the child and give the child inheritance rights, but fails to do so, such promise may, after the foster parent's death, be enforced to the extent of permitting the child to share in the foster parent's estate. Where there is such an agreement, having as its basis a contract to adopt, the prin ciple of "equitable adoption" is brought into issue. (See SSR 64-27, C.B. 1964, p. 6.) The State of Colorado recognizes the principle of "equitable adoption" by reason of a parol contract of adoption (In Re Stoiber's Estate, 72 P.2d 276 (Colo., 1937)).

In the Stoiber case, the court quoted with approval the Missouri decision in Rauch v. Metz, 212 S.W. 357, 362 (Mo., 1919, which stated:

There is, however, no principle of law more firmly settled in this State than that that relation may be created by the acts and undertakings of the parties fully executed on behalf of the child.

While Colorado would recognize the principle of "equitable adoption," such an adoption must be proven by clear and convincing evidence of an express or implied contract to adopt.

The consent agreement signed by C's mother provided only that R and W could keep and care for the infant in their home and, at their option, could institute proceedings to adopt her. The mother also agreed to execute all necessary documents if adoption was later decided upon. The agreement gave to R and W merely the right to rear the child and, if they so desired at some future date, to adopt her, but they did not obligate themselves to do so. Under these circumstances, there was not a sufficient contract to adopt on the part of R and W to establish an "equitable adoption" of C which could give her rights of inheritance in R's estate under the laws of Colorado.

Accordingly, it is held that C does not qualify as the "child" of R and is not entitled to child's insurance benefits based on R's social security earnings record.