Judge JOHNSON dissenting

This is an appeal by the paternal heirs of Edward Gordon Stern, an illegitimate who died intestate, from the order of the Pasquotank County Superior Court directing that the decedent's entire estate be distributed to his maternal heirs. The decedent, Edward Gordon Stern, was born in 1927 in the province of Saskatchewan, Canada and named Edward Gordon Weiss. His birth certificate does not list the name of either parent, but the evidence overwhelmingly indicates that he was the son of Hilda Weiss and Edward D. Stern who were living together at the time of his birth. Apparently, Edward D. Stern and Hilda Weiss (hereinafter referred to a decedent's father and mother) never married because of religious prohibitions in Canada at the time.

The decedent lived with his parents until his mother's death in 1933. Thereafter he remained with his father until he entered the Army many years later. Decedent's name is shown on his medical records as a baby and his school records as Edward Gordon Stern. These school records list Edward D. Stern as decedent's father. The evidence clearly shows Edward D. Stern considered the decedent to be his son and referred to him as such. Later in life, the decedent had his name officially changed to Edward Gordon Stern, both in the United States and in Canada. The name change in Canada was done at the request of Edward D. Stern so as to facilitate the identification of Edward Gordon Stern as his son in his will. In his last will, Edward D. Stern bequeathed "the residue of my estate to my son, Edward Gordon Stern, for his own use absolutely." In 1979 Edward D. Stern died leaving a residuary estate worth over $500,000.

In August of 1980, Edward Gordon Stern died intestate survived only by his aunts and uncles. At the time of his death, the decedent was a citizen and resident of Pasquotank County, North Carolina. The present proceeding was brought to determine the distributees of the decedent's estate. After hearing the evidence, the trial judge concluded that the decedent was survived by only the collateral kindred of his late mother and that the collateral kindred of the late Edward D. Stern were not entitled to share in the estate. From the order entered 16 September 1982, the respondent paternal heirs appealed.

WEBB, Judge.

The question presented on this appeal is whether the heirs of the alleged natural father of Edward Gordon Stern have any rights to the decedent's estate. We believe they do not and affirm the order directing that the decedent's estate be distributed only to his maternal heirs.

G.S. 29-19 (a) provides that for purposes of intestate succession, an illegitimate shall be treated as if he were the legitimate child of his mother so that he is entitled to inherit by, through and from his mother and his other maternal kindred, and they are entitled to take from him. There is no dispute that the decedent was illegitimate and that the respondent maternal heirs are entitled to some share of the decedent's estate.

The right of a putative father and the paternal heirs to inherit by, through and from an intestate illegitimate is governed by G.S. 29-19 (b) and (c) which state as follows, in pertinent part:

(b) For purposes of intestate succession, an illegitimate child shall be entitled to take by, through and from:

(1) Any person who has been finally adjudged to be the father of such child pursuant to the provisions of G.S. 49-1 through 49-9 or the provisions of G.S. 49-14 through 49-16;

(2) Any person who has acknowledged himself during his own lifetime and the child's lifetime to be the father of such child in a written instrument executed or acknowledged before a certifying officer named in G.S. 52-10 (b) and filed during his own lifetime and the child's lifetime in the office of the clerk of superior court of the county where either he or the child resides.

. . . .

(c) Any person described under subdivision (b)(1) or (2) above and his lineal and collateral kin shall be entitled to inherit by, through and from the illegitimate child.

The record is devoid of any evidence indicating that Edward D. Stern was ever judicially adjudged to be the decedent's father as provided in G.S. 29-19 (b)(1) or that he ever acknowledged his paternity as provided in G.S. 29-19 (b)(2).

G.S. 29-19 (d) provides a further basis through which an illegitimate may inherit from his putative father. That section provides that:

(d) Any person who acknowledges himself to be the father of an illegitimate child in his duly probated last will shall be deemed to have intended that such child be treated as expressly provided for in said will or, in the absence of any express provision, the same as a legitimate child.

Edward D. Stern so acknowledged himself as the father of the decedent when he stated in his last will that he bequeathed his residuary estate to "my son, Edward Gordon Stern."

The appellant paternal heirs argue that since this acknowledgment of paternity by Edward D. Stern in his will is sufficient to permit the decedent to inherit from his putative father, it should also be sufficient to permit the putative father or his heirs to inherit from the decedent. They maintain that unless G.S. 29-19 is interpreted so as to permit the paternal heirs to share in the decedent's estate, the resulting distribution will be in violation of the Equal Protection Clause of the Fourteenth Amendment.

In essence, the appellants contend that G.S. 29-19 (c) must be judicially amended to include subsection (d) of that statute in order for the statute to pass constitutional muster. We do not agree. G.S. 29-19 (c) clearly and unambiguously provides that a putative father and his kindred are only entitled to inherit from an illegitimate child if paternity has been established by one of the methods prescribed in G.S. 29-19 (b). Edward D. Stern's paternity was not established by either method; therefore, his heirs are not entitled to inherit from the decedent. It is well settled that "[w]here the language of a statute is clear and unambiguous, there is no room for judicial construction and the courts must give it its plain and definite meaning, and are without power to interpolate, or superimpose, provisions and limitations not contained therein." See 12 Strong's N.C. Index 3d, Statutes 5.5 (1978). G.S. 29-19 (d) is equally clear in its meaning and applies only when the child is taking under a will from the putative father and not when the putative father or his heirs are attempting to inherit from the child under the intestacy statutes.

Nor do we agree that G.S. 29-19 as applied to this case runs afoul of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. While the statute does classify the illegitimate's mother (and her heirs) and the putative father (and his heirs) differently by placing the additional requirement on the father to establish his paternity by one of the statutorily prescribed methods before he is permitted to inherit, this classification is substantially related to permissible state interests.

The United States Supreme Court has made it clear that when considering statutes based on illegitimacy, courts are to apply an intermediate level of review which requires that the statute be substantially related to permissible state interests. See Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977); Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978). Though the classification in the present case differs from those in Trimble, supra, and Lalli, supra, in that it is not a classification of an individual on the basis of his or her legitimacy, but is a classification of the parents of an illegitimate; nevertheless, we shall apply the intermediate standard of review rather than the lower standard of review because it is at least arguable that the classification here is one "based on illegitimacy." Even applying this more stringent standard, we find that G.S. 29-19 meets the requirements of the Equal Protection Clause.

The North Carolina Supreme Court has previously considered the constitutionality of G.S. 29-19 in the case of Mitchell v. Freuler, 297 N.C. 206, 254 S.E.2d 762 (1979). In Mitchell, supra, the Court held that G.S. 29-19 and the statutes in pari materia do not violate the Equal Protection and Due Process Clauses of the United States Constitution, since those statutes are substantially related to the permissible state interests they are intended to promote. The Court identified the state's interests as being the following: (1) to mitigate the hardships created by our former law which permitted illegitimates to inherit only from the mother and from each other; (2) to equalize insofar as practical the inheritance rights of legitimate and illegitimate children; and (3) at the same time, to safeguard the just and orderly disposition of a decedent's property and the dependability of titles passing under intestate laws. Id. at 216.

Although Mitchell, supra, is distinguishable from the present case in that it concerns the inheritance rights of an illegitimate rather than the inheritance rights of the parents of an illegitimate, the statute and the state interests involved are the same. Not only does the classification here foster the same state interests recognized in Mitchell, supra, it imposes a much lighter burden on the one allegedly discriminated against. Unlike the illegitimate who can do nothing to establish his right to inherit from his father, the father of an illegitimate has the ability to insure that he will be an intestate taker — he simply has to acknowledge his child in the prescribed manner. Unlike the illegitimate, the father can preserve his rights and he should not be rewarded for his failure to do so.

We conclude that the requirement imposed on the father of an illegitimate who would inherit from his illegitimate child is substantially related to the important state interests G.S. 29-19 is intended to promote. For this reason, we find no violation of the Equal Protection Clause.

Affirmed.

Chief Judge VAUGHN concurs.

Judge JOHNSON dissents.