dissenting. The majority’s statement of the issue in this case is: “[W]hether a statute which requires an illegitimate child to file a claim for her share of her father’s estate within a shorter period of time than would be required for a legitimate child to do the same thing violates the Equal Protection Clause of the Fourteenth Amendment.” It seems to me that to ask the question is to answer it. Rephrased it could be put like this, “Is it all right to deny equal protection and due process to a child because of illegitimacy?”
I find the facts necessary to understand this case are insufficiently stated in the majority opinion. Therefore, I will set out what I consider to be relevant facts. Mable Dawkins is the mother of the decedent, Steve Holmes, and the decedent and Hortense Boatman are the parents of Kristy Holmes. When Kristy Holmes was born, Hortense Boatman and Steve Holmes executed an affidavit which acknowledged that Steve Holmes was Kristy’s father. His name was also placed on the birth certificate. Kristy Holmes was nine months of age when her father died on May 17,1983. Mable Dawkins visited her granddaughter Kristy even after her son’s death.
Mable Dawkins filed a petition for appointment as administratrix of the estate of Steve Holmes on May 31,1983. No notice was given to either Kristy Holmes or Hortense Boatman. Hortense Boatman learned of the petition on February 7, 1986, and filed a request for notice. On March 6, 1986, she filed a petition for determination of heirship on behalf of her daughter Kristy.
The trial court found that Kristy was the daughter of the decedent, but nonetheless was not entitled to inherit from her father’s estate because her claim was not filed within 180 days of the opening of the estate as required by Ark. Code Ann. § 28-40-107 (1987).
No guardian or attorney ad litem was appointed for the nine month old daughter of the decedent and due to her age it was impossible for her to speak up for her rights without a duly authorized representative. Basic due process of law requires notice and an opportunity to be heard before any person can be deprived of life, liberty, or property. There was not even an attempt to meet such fundamental requirements in the present case. Even if Ark. Code Ann. § 28-9-209 (1987) is constitutional, the facts of the present case require a different result than that reached by the majority. The paternity had been established by the parents during the lifetime of the father of which the paternal grandmother was well aware.
The reasoning in Lucas v. Handcock, 266 Ark. 142, 583 S.W.2d 491 (1979), and in Trimble v. Gordon, 430 U.S. 762 (1977), is still controlling. We held in Lucas that denial of an illegitimate child’s right to inherit from his father could not be justified on the basis of the compelling state interest in establishing certainty in the disposition of a decedent’s property. If prohibiting an illegitimate child from inheriting from his father’s estate is not a proper state interest, then certainly limiting the right of inheritance by illegitimate children cannot be justified on the same grounds. The legitimate interest in promoting orderly disposition of a decedent’s estate applies with equal force to a child born in or out of wedlock. There is no constitutional sanction for partial due process.
I see no valid purpose for continuing this dissent because the majority has cited most of the cases which I think establish the basis for declaring Ark. Code Ann. § 28-9-209 (1987) unconstitutional. As previously stated, the statute is discriminatory on its face and should be declared invalid.
Hickman and Hays, JJ., join this dissent.