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Docket No. 93872-Agenda 9-March 2003.

In re ESTATE OF MADISON RAE POOLE (Randy L. Poole, Appellee, v. Debra Jean Clausen, Adm'r, Appellant).

Opinion filed October 17, 2003.

JUSTICE FREEMAN delivered the opinion of the court:

This appeal arises from a decision of the circuit court of PutnamCounty denying petitioner Randy L. Poole's petition to revoke lettersof administration issued to respondent, Debra Jean Clausen. Theappellate court reversed the circuit court's order and remanded thecause for a hearing. 328 Ill. App. 3d 964. We granted Clausen'spetition for leave to appeal (177 Ill. 2d R. 315) and now affirm thejudgment of the appellate court.

BACKGROUND

In 1997, Poole began living with Christina Kay Clausen, thedaughter of respondent Clausen. Poole and Christina subsequentlymoved to Virginia, where they maintained a conjugal relationship. InOctober 1997, Christina became pregnant. During the early months ofthe pregnancy, the couple returned to Illinois, where they continuedto live together. The couple did not marry.

On May 26, 1998, when Christina was approximately eightmonths pregnant, she was involved in an automobile accident andsustained fatal injuries.⁽¹⁾ Doctors later performed a Caesarean sectionoperation and delivered a stillborn fetus, who was named MadisonRae Poole. There is no dispute in this case that the fetus did surviveChristina.

On September 11, 1998, Clausen filed a petition for letters ofadministration in the circuit court of Putnam County for the estate ofMadison Rae Poole. The court issued letters of administration toClausen on October 1, 1998. On that same date, the circuit court alsoentered an order declaring heirship, identifying as Madison's heirsClausen (maternal grandmother), Jon Robert Clausen (maternalgrandfather), Elizabeth Clausen (maternal aunt), and Theresa Clausen(maternal aunt). The court later amended the order to show that theonly heirs at law were the maternal grandparents.

At some point during the administration of the estate, and therecord is unclear on this point, a claim for uninsured-motorist benefitswas registered with the insurer of the car Christina was driving at thetime of the accident, Country Companies Mutual InsuranceCompany.⁽²⁾ The matter apparently was settled without resort tolitigation. On November 8, 1999, Clausen sought court approval toexecute the settlement and to distribute the proceeds to the heirs atlaw. The proceeds of the settlement were listed as $66,975.50.

Poole thereafter filed a "Petition to Revoke Letters ofAdministration" on November 19, 1999. In the petition, Pooleasserted that he was Madison Rae Poole's natural father and, as such,was entitled to priority in the granting of letters of administration.Poole requested that the court revoke the letters of administrationpreviously granted to Clausen. Poole attached to the petition an"affidavit of parenthood" in which he swore that he and Christina hadlived together since August 17, 1997, and that Christina becamepregnant with his child in October 1997. Poole also averred that at alltimes after the conception, he acknowledged that he was the father ofChristina's unborn child and that he "contributed to the support,maintenance, and comfort" of Christina. He swore that the couplelived together as a family unit and that the couple's friends and familyacknowledged that the couple were expecting a child. Poole notedthat the May 26, 1998, automobile accident claimed the life ofChristina and resulted in the death of his unborn child. On June 29,1998, a "certificate of fetal death" was issued by the local registrar, inwhich Poole was listed as the father of the stillborn fetus, whose namewas listed as Madison Rae Poole. A copy of the certificate was alsoattached to Poole's petition.

The circuit court subsequently dismissed Poole's petition withleave to amend due to lack of standing. Poole later filed an amendedpetition. In this petition, Poole reasserted the factual allegations fromhis previous pleading, but added that he was, pursuant to section 2-2of the Probate Act of 1975 (755 ILCS 5/2-2 (West 1998)), the solesurviving "eligible parent" of Madison Rae Poole and that, as such, hehad standing in the matter and was entitled to priority over Clausen inthe granting of letters of administration. Poole requested thatClausen's letters of administration be revoked and that he beappointed the administrator of the estate.

The circuit court denied Poole's petition, ruling that Poole failedto satisfy the statutory requirements of an eligible parent under section2-2 of the Probate Act. Because he lacked standing in the matter, thecourt denied Poole's petition to revoke the letters of administration ofClausen and to appoint Poole as administrator. Poole thereafter fileda motion challenging the constitutionality of section 2-2. The circuitcourt denied the motion, upholding the statute's constitutionality, andPoole appealed.

The appellate court reversed the circuit court's order andremanded the cause for a hearing. The appellate court noted thatunder the plain language of section 9-3 of the Probate Act, abiological parent has precedence over a grandparent for letters ofadministration. 328 Ill. App. 3d at 969. Based on this statutorylanguage, the appellate court stated that "it certainly appears that[Poole's] petition for revocation of the letters of administration shouldhave been granted." 328 Ill. App. 3d at 969. However, the appellatecourt noted that Clausen had argued that Poole was not an eligibleparent under section 2-2 of the Probate Act. 328 Ill. App. 3d at 969.She objected that Poole lacked standing to object to her appointmentas administrator because he is not a "parent" as that term is used in thestatute. The court disagreed with Clausen's contentions for tworeasons. The court first observed that "the language [of section 2-2]limits the definition of 'eligible parent' to the particular section of theAct." 328 Ill. App. 3d at 970. The court then pointed out that section2-2 had been recently redrafted by the legislature to make it gender-neutral in accordance with this court's decision in In re Estate ofHicks, 174 Ill. 2d 433 (1996). The appellate court reasoned that if amother can qualify as an "eligible parent" under the statute, then sotoo should a biological father even if he is not married to the mother.328 Ill. App. 3d at 970. After reviewing the plain language of thestatute, its legislative history and the facts of the case, the appellatecourt concluded that "it appears that [Poole] could qualify as aneligible parent" under the Probate Act. 328 Ill. App. 3d at 970.

The appellate court also pointed out that it believed that theWrongful Death Act was pertinent to the issues in this case. 328 Ill.App. 3d at 971. The court noted that in Illinois, under the WrongfulDeath Act, an unborn fetus is recognized as a person to the extent thata rebuttable presumption for loss of society existed for the parents ofa stillborn child. 328 Ill. App. 3d at 971. The court acknowledged thatno such wrongful-death action was filed in this case, but neverthelessconcluded that Poole could have brought such a claim for the deathof Madison. Moreover, "[i]f [Poole] had a legitimate wrongful deathclaim, it would appear that he, rather than the grandmother, wouldhave priority for letters of administration for any estate created byadvancing that claim." 328 Ill. App. 3d at 971. Recognizing that thelegitimacy of such a claim is dependent upon Poole's ability to provethat he was Madison's biological father, the court remanded thematter to the circuit court for a hearing. 328 Ill. App. 3d at 971. In soholding, the appellate court noted that section 2-2 of the Probate Actwas constitutional in that it was gender-neutral. 328 Ill. App. 3d at971-72.

ANALYSIS

As an initial matter, we note that our resolution of this case hasbeen hampered by the state of the record. At times, it appearsChristina was involved in a single-car accident. At other times, therecord suggests that the accident involved multiple vehicles. Althoughit appears reasonably clear that an insurance settlement was reachedbetween the Clausens and the insurer pursuant to an uninsured-motorist policy, the current status of these funds is not readilyascertainable. The settlement apparently was reached without resortto the filing of any wrongful-death actions and, as a result, no estatesfor either Christina or Madison were created under our WrongfulDeath Act. See 740 ILCS 180/2 (West 1998). We questioned bothparties at oral argument regarding the origin of these funds. Nosatisfactory answer has been provided by either counsel. All we can becertain of is the fact that a check was issued from the insurer withrespect to the death of Madison Rae Poole. Moreover, we note thatthis same lack of information concerned the appellate court, whichordered the parties to brief the issue of whether a viable fetus has theability to have a probate estate. The appellate court, however, did notaddress this issue in its opinion, but rather, as we have pointed out,noted the applicability of the Wrongful Death Act to the facts of thecase.

We conclude, from the limited record in this matter, that theprobate estate at issue in this case was opened as a means to distributethe proceeds from the insurance payout following the accident.Moreover, it appears to us that the insurance proceeds paid out in thismatter were in the nature of wrongful-death proceeds. We thereforebelieve it was correct for a probate estate to be created under thesecircumstances. Illinois law allows for "damages where the nearly full-term child dies before birth" under the Wrongful Death Act. Seef v.Sutkus, 145 Ill. 2d 336, 339 (1991). Not all wrongful-death cases,however, result in a filing of an action under the Wrongful Death Act,and not all claims need be pursued by an administrator appointedsolely under that act. See 740 ILCS 180/2.1 (West 1998) (stating thatif the only asset in a deceased's estate is a cause of action for wrongfuldeath "and no petition for letters of office for his or her estate hasbeen filed," the court upon motion of any person who would beentitled to a recovery under the Wrongful Death Act "without openingof an estate" may appoint a special administrator for the deceasedparty). However, once a probate estate has been opened, a specialadministrator may not be appointed under the Wrongful Death Act.See Kubian v. Alexian Brothers Medical Center, 272 Ill. App. 3d 246(1995). The circuit court, under the Probate Act, then has the powerto approve the distribution of any settlement that becomes an asset ofthe decedent's estate. See In re Estate of Redeker, 210 Ill. App. 3d769 (1991).

The circuit court here appointed Clausen administrator, under theProbate Act, for purposes of distribution of the proceeds of thesettlement in October 1998. At that time, the estate contained over$60,000 in proceeds. Pursuant to the Probate Act, Clausen gavenotice to all potential claimants to Madison's estate. One year later,Poole appeared in the action to contest the issuance of letters toClausen and to have himself declared Madison's sole heir at law. We,therefore, will look to the Probate Act in order to resolve the issuesbefore us.⁽³⁾

The question we must answer in this case, and the sole questionthat was raised by Poole in his petition for revocation of letters, isrelatively a straightforward one: Who has legal precedence to act asthe administrator in this estate? Because this question involves theconstruction of statutes, we review the circuit court's determinationde novo. Woods v. Cole, 181 Ill. 2d 512, 516 (1998).

Section 9-3 of the Probate Act provides a list of persons entitledto preference in obtaining letters. 755 ILCS 5/9-3 (West 1998). TheProbate Act follows the general rule that prefers surviving spousesand descendants over anteceding relatives. Madison, of course, has nosurviving spouse or descendants. If, as in this case, no survivingspouse or descendants exist, subsection (e) provides that "the parents"shall act as administrator. 755 ILCS 5/9-3(e) (West 1998). Subsection(f) then lists brothers and sisters (755 ILCS 5/9-3(f) (West 1998)),and subsection (g) lists "nearest kindred" in descending order ofpreference (755 ILCS 5/9-3(g) (West 1998)).

Clausen maintains that she, as grandmother, has preference overPoole because Poole cannot establish paternity under Illinois law.Moreover, the parties disagree over how the term "parent" as used insection 9-3 should be defined. Poole points to section 2-2 of theProbate Act, which controls the distribution of an intestateillegitimate's estate and argues the statute allows parents to inheritfrom an illegitimate person, just as parents may inherit from alegitimate person, if the illegitimate's parents are "eligible." 755 ILCS5/2-2 (West 1998). Section 2-2 states:

"As used in this Section, 'eligible parent' means a parent ofthe decedent who, during the decedent's lifetime,acknowledged the decedent as the parent's child, establisheda parental relationship with the decedent, and supported thedecedent as the parent's child." 755 ILCS 5/2-2 (West1998).

According to Poole, he can also serve as administrator under section9-3 because he satisfies the definition of an "eligible parent" forpurposes of inheritance under section 2-2.

The problems with Poole's argument, however, are twofold.First, it is not at all clear that the term "parent," as it is used in section9-3, is interchangeable with the term "eligible parent," as it is used insection 2-2. In interpreting statutes, this court must ascertain and giveeffect to the intent of the legislature when it enacted the statute. Wehave long recognized that it is the language of the statute itself whichprovides the best indication of the drafter's intent. Kirwan v. Welch,133 Ill. 2d 163, 165 (1989). It is important to stress that the GeneralAssembly limited the term "eligible parent" to section 2-2 alone. If thelegislature would have intended the term "eligible parent" to be usedthroughout the Probate Act, it would have included it within thedefinition sections of the Act. See 755 ILCS 5/1-2 through 1-2.24(West 1998) (defining terms used in the Probate Act). We know of norule of construction that allows a court to declare that the legislaturedid not mean what the plain language of a statute imports. SeeCardwell v. Rockford Memorial Hospital, 136 Ill. 2d 271, 278(1990). In our view, there is simply no indication that the legislatureintended for the term "eligible parent" to be used outside of section2-2. For that reason, the use of the term is limited to establishingwhether the parents of an illegitimate child can inherit from that childupon his or her death. We will not presume another use for the termin the absence of legislative intention. Therefore, section 2-2 is of norelevance in determining whether Poole is a "parent" within themeaning of section 9-3 such that he takes precedence over Clausenfor purposes of administering the estate of Madison Rae Poole.

Second and more importantly, the term "eligible parent"presupposes parental relationship between the child and the parent. Inother words, one must be a parent in the first instance in order toprove oneself an "eligible parent." Only "parents" can be "eligibleparents." By claiming he is an "eligible parent," Poole is assuming thathe is a "parent." In our view, both section 2-2 and section 9-3 sharea requirement that one must be a "parent." We note that the ProbateAct does not define the term "parents." The Illinois Parentage Act of1984, however, provides us with guidance in this area. By its terms,the Parentage Act applies to "any civil action *** if parentage is atissue." 750 ILCS 45/9 (West 1998). As the appellate court hasrecognized,

" '[P]arentage is at issue' whenever a parent and childrelationship is the basis for some 'right, privilege, duty orobligation' [citation], but such a relationship has not beenestablished (or presumed) as provided for in the ParentageAct. Simply because no party disputes biological parentageis not a sufficient basis for concluding that a case is not onewhere 'parentage is at issue.' " Kapp v. Alexander, 218 Ill.App. 3d 412, 416 (1991).

Section 2 of the Parentage Act states that "[a]s used in this Act,'parent and child relationship' means the legal relationship existingbetween a child and his natural or adoptive parents incident to whichthe law confers or imposes rights, privileges, duties, and obligations.It includes *** the father and child relationship." 750 ILCS 45/2(West 1998). Our appellate court has held that the legislature "usedthe expressions 'parent and child relationship,' *** and 'father andchild relationship' as terms of art" throughout the Parentage Act as awhole in order to "refer to something more than simply biologicalrelationships and are meant to include the legal relationships." Kapp,218 Ill. App. 3d at 416. The right of a parent to serve as anadministrator of his or her child's estate (and inherit from the child)derives from the parent and child relationship. We therefore believethat the question regarding the order of preference for theadministration of this estate presents as an issue the parentage ofMadison and that the Parentage Act is the statutory mechanism thatserves to legally establish parent and child relationships in Illinois.

Section 4 of the Parentage Act states:

"How Parent and Child Relationship Established. Theparent and child relationship between a child and

***

*** the natural father may be established under thisAct[.]" 750 ILCS 45/4 (West 1998).

Paternity can be established by a number of means under theParentage Act. For example, section 5 of the Parentage Act containsa list of circumstances under which fatherhood may be presumed. See750 ILCS 45/5 (West 1998). However, none of those circumstancesexist in this case, so Poole cannot be presumed by law to beMadison's natural father. Therefore, it must be judicially determinedthat Poole was Madison's father if he is to be appointed administratorover Clausen.

Poole acknowledges the relevance of the Paternity Act andargues that he has presented evidence which establishes his parentageof Madison under the Act. Poole maintains that he signed an affidavitin which he acknowledges that he was the father of Christina's child.He points to the certificate of fetal death, which lists him as the naturalfather, and argues that these facts are undisputed. Indeed, much ofPoole's argument in this court is based on statements like thefollowing: "It is clear that Randy Poole was the biological father ofMadison Rae Poole, that he established a parental relationship withthe child, and that as the biological father he is the sole survivingparent." However, while all of this may be true, Poole is not, as ofnow, recognized as such in the legal sense. Poole claims heestablished a parent/child relationship by consent pursuant to section6 of the Parentage Act because he signed "a voluntaryacknowledgment of parentage in accordance with section [12] of theVital Records Act," i.e., the fetal death certificate. Poole maintainsthat he also complied with the requirements of section 6 by filing anaffidavit of parentage in this probate action. We disagree.

Section 6 of the Parentage Act refers to section 12 of the VitalRecords Act. See 750 ILCS 45/6(a) (West 1998). Section 12 of thatact pertains only to live births and the certificates that attend to suchevents. 410 ILCS 535/12 (West 1998). It does not include fetal deathcertificates. Moreover, section 12 does not speak of affidavits ofparentage such as what was filed in this case. 410 ILCS 535/12 (West1998). We therefore conclude that none of Poole's unilateral actionsalone satisfy the statutory criteria to establishing paternity by consentunder section 6 of the Parentage Act.

In our view, it is section 7 of the Parentage Act that is applicableto this case. Section 7 allows for a man "alleging himself to be thefather of the child or expected child" to bring an action by verifiedcomplaint. 750 ILCS 45/7 (West 1998). Under this section, a hearingis held and a finding of the court is entered as to paternity. Like theappellate court, we believe that this case must be remanded for ahearing in which Poole may establish his paternity of Madisonpursuant to section 7 of the Parentage Act.

Clausen, however, maintains that such a hearing would beinappropriate because the Parentage Act only serves to establishpaternity in cases where a living, illegitimate child has been born: "Theonly method to establish parentage of an illegitimate is followingbirth." In support of this statement, she points to subsection (e) ofsection 7, which states that if an action is brought under section 7"before the birth of the child, all proceedings shall be stayed until afterthe birth, except for service or process, the taking of depositions toperpetuate testimony, and the ordering of blood tests underappropriate circumstances." 750 ILCS 45/7(e) (West 1998). We donot read this language as preventing a determination of parentage incases such as this. The Paternity Act does not contain a definition ofthe word "birth." In such cases, when interpreting statutes, this courtgives undefined words their plain and ordinary meaning. See GraniteCity Division of National Steel Co. v. Illinois Pollution ControlBoard, 155 Ill. 2d 149, 181 (1993). Webster's Dictionary defines"birth" as "the act of coming forth from the womb" (Webster's ThirdNew International Dictionary 221 (1986)) and defines "stillbirth" asthe "birth of a dead fetus." Webster's Third New InternationalDictionary 2243 (1986). With respect to the word "stillbirth,"Webster's urges the reader to compare it with "live birth," which itdefines as a "birth in such a state that acts of life are manifested afterthe extrusion of the whole body." Webster's Third New InternationalDictionary 1324 (1986). Accordingly, a stillbirth is by definition a"birth." In our view, subsection (e) refers only to staying proceedingswhile the fetus remains in utero.

In light of the above, we agree with the appellate court, albeit fordifferent reasons, that a hearing to determine whether Poole wasMadison's natural father is appropriate in this case. At such a hearing,Poole is free to adduce the evidence he has presented here to establishhis paternity. We also note that the record makes clear that DNAtesting in this case is readily available because tissue samples havebeen preserved. If it is determined that Poole is Madison's parent, i.e.,father, he would, pursuant to section 9-3, take precedence overClausen for the administering of letters of the estate, which was theprocedural question raised by the petition filed by Poole in the circuitcourt. Moreover, by requiring Poole to establish his parentage underthe Parentage Act, we have guarded, to an extent, against the dangerof fraudulent claims of paternity being asserted in cases such as this.

We caution that our resolution of this matter is not meant toanswer the question of whether Poole was an "eligible parent" undersection 2-2 of the Probate Act, for purposes of inheriting fromMadison. Although we do not determine whether Poole is an "eligibleparent" as defined in section 2-2 because that question is nottechnically before us, we will comment on the issue briefly so as toprovide guidance to the lower courts. Clausen has maintainedthroughout the course of this litigation that under the plain languageof section 2-2, Poole does not qualify as an eligible parent becauseMadison never lived. Thus, according to Clausen, Poole could nothave met any of the statute's requirements "during the decedent'slifetime." We reject this argument. Illinois law allows parents torecover for the wrongful death of a fetus. See Seef, 145 Ill. 2d 336. InSeef, we recognized that the parents of a stillborn baby are presumedto have suffered a loss of the child's society. In so doing, we rejectedthe argument that a parent and child relationship cannot be realizedduring gestation. We have previously noted that, under the WrongfulDeath Act, "next of kin" determinations for purposes of damagesdistributions are guided by the rules of intestacy as set forth in theProbate Act. To interpret section 2-2 as Clausen suggests would denyillegitimate fathers the means to recover for the wrongful death oftheir stillborn children. We will not construe section 2-2 in such amanner. Section 2-2 evinces our General Assembly's intent to allowonly the parents of illegitimate children who have demonstrated aninterest in their illegitimate children to inherit by intestate succession,which is a legitimate state interest. See In re Estate of Hicks, 174 Ill.2d at 440-41. As our appellate court has aptly noted,

"While section 2-2 of the Probate Act governs the rules ofinheritance, we understand that the 'eligibility' requirementsof section 2-2 may overlap with those factors considered bythe trial court when determining the degree of dependencyunder the Wrongful Death Act. Both the eligibilityrequirements of section 2-2 of the Probate Act and thedetermination of the degree-of-dependancy requirement ofsection 2 of the Wrongful Death Act address similar policyconcerns, namely, preventing absentee parents from obtainingmore than the share to which they are entitled." Johnson, 334Ill. App. 3d at 593.

We therefore reject Clausen's contention that, because stillbornfetuses never live, illegitimate fathers of stillborns cannot establishthemselves as "eligible parents" under section 2-2. We do not believethat the legislature intended section 2-2 to have the blanket effect ofdebarring all illegitimate fathers from recovering for the wrongfuldeaths of their stillborn children. We read section 2-2 simply as amethod of insuring that such fathers must prove that they are parentsin more than the genetic sense, i.e., that they are "eligible," beforethey can take under the line of intestate distribution. We note that ourconclusion as to this matter avoids Poole's suggestion that Clausen'sposition renders section 2-2 unconstitutional in that it discriminatesagainst the fathers of illegitimate stillborns. See People v. Fisher, 184Ill. 2d 441, 448 (1998) (holding that court has a duty to construe astatute in a manner that upholds its validity and constitutionality if itcan reasonably do so).

CONCLUSION

In view of the foregoing, the judgment of the appellate court,reversing the order of the circuit court, is affirmed, and the cause isremanded to the circuit court for further proceedings consonant withthis opinion.

Appellate court judgment affirmed;

cause remanded.

1.   The record is unclear as to the details surrounding this accident. At various points, the accident is described as having been a single-car accident. Clausen, in her appellate brief submitted to this court, refers to Christina being involved in an automobile accident "by an uninsured automobile driver." This is consistent with her statement of facts contained in the supplemental brief she filed in the appellate court pursuant to that court