
NOTICE: Under Supreme Court Rule 367 a party has 21 days after

the filing of the opinion to request a rehearing. Also, opinions

are subject to modification, correction or withdrawal at anytime

prior to issuance of the mandate by the Clerk of the Court.

Therefore, because the following slip opinion is being made

available prior to the Court's final action in this matter, it

cannot be considered the final decision of the Court. The

official copy of the following opinion will be published by the

Supreme Court's Reporter of Decisions in the Official Reports

advance sheets following final action by the Court.

                                    

           Nos. 80604, 80677 cons.--Agenda 28--September 1996.

     In re ESTATE OF RONADRA J. HICKS, Deceased (Mark Twain Illinois

      Bank, Adm'r and Guardian of the Estates of LaDonna and LaDiea

        Bender, Minors, Appellant, v. Ronald J. Hicks, Appellee).

                    Opinion filed December 19, 1996.





     CHIEF JUSTICE BILANDIC delivered the opinion of the court:

     At issue in this appeal is the constitutionality of section 2-

-2(d) of the Probate Act (755 ILCS 5/2--2(d) (West 1994)), which

provides that the estate of an illegitimate intestate who dies

without a surviving spouse or descendants shall be distributed to

his or her mother and the mother's children/descendants. The

circuit court of St. Clair County entered a judgment finding

section 2--2(d) unconstitutional because it permitted only mothers,

and not fathers, to inherit by intestate succession from their

illegitimate children, and thereby unlawfully discriminated on the

basis of gender, in violation of the equal rights provision of the

Illinois Constitution of 1970 (Ill. Const. 1970, art. I, §18). The

circuit court also determined that section 2--1 of the Probate Act

(755 ILCS 5/2--1 (West 1994)) would control the distribution of the

estates of illegitimate decedents. That section, which governs the

intestate succession of legitimate decedents, allows both mothers

and fathers (and their descendants) to inherit by intestate

succession from their legitimate children who die without a

surviving spouse or descendants.



                                   FACTS

     The decedent, Ronadra J. Hicks, was born on April 10, 1985,

and died on January 3, 1994. Shortly after Ronadra's death, her

mother, Sandra Williams Bender, filed a petition for letters of

administration and determination of heirship in the probate

division of the circuit court of St. Clair County. That court

entered an order appointing Mark Twain Bank (Bank) as the

administrator of Ronadra's estate. The circuit court also entered

an order determining heirship pursuant to section 2--2(d) of the

Probate Act, identifying as Ronadra's only heirs her mother, Sandra

Bender, and her three half-sisters, LaDonna, LaDiea and LaShawn

Bender.

     The Bank filed an inventory reporting the sole asset of

Ronadra's estate to be an account with a balance of $94,148.27. The

circuit court subsequently entered a modified order of heirship,

distributing 50% of Ronadra's estate to her mother and the

remaining 50% in equal shares to her three half-sisters.

     Subsequently, Ronald Hicks, Ronadra's biological father, filed

a motion to set aside the modified heirship order and the order

appointing the Bank as administrator of Ronadra's estate. Hicks'

motion alleged that he was named by Ronadra's mother in a petition

to establish parentage filed in the circuit court of St. Clair

County, and that he appeared before that court on March 3, 1988,

and admitted paternity (approximately three years after the child's

birth). The circuit court entered an order establishing paternity

and ordered Hicks to pay child support. Hicks' motion claimed that

he paid support for Ronadra up to the date of her death pursuant to

"an order of withholding previously entered." Hicks' motion sought

to set aside the heirship order and argued, inter alia, that "the

distinction between legitimacy and illegitimacy, as it pertains to

Ronald Hicks as father of the deceased, [is] unconstitutional." The

motion argued that Hicks should be included among the decedent's

heirs at law. The circuit court granted Hick's motion, finding

section 2--2(d) of the Probate Act (755 ILCS 5/2--2(d) (West 1994))

violative of article I, section 18, of the Illinois Constitution of

1970 (Ill. Const. 1970, art. I, §18). The circuit court declared

Hicks an heir of the decedent but denied further relief.

     The trial court subsequently modified its order to find that,

having declared section 2--2(d) unconstitutional, section 2--1 of

the Probate Act (755 ILCS 5/2--1 (West 1994)) would control the

distribution of the estates of illegitimate decedents. Section 2--1

provides that the estate of a legitimate intestate who dies without

a surviving spouse or decedent shall be distributed to the

decedent's parents and the parents' other descendants, in equal

shares. Pursuant to this provision, the circuit court entered an

order finding that Ronadra's heirs at law included, not only her

mother and her mother's three surviving children, but also her

biological father and his two children, Rochelle Jeanette Hicks and

Ronyall J'nae Hicks. The trial court ordered that Ronadra's estate

be distributed in equal shares to each of Ronadra's seven heirs.

     The trial court subsequently granted the Bank authority to

appeal its order, and held that the costs incurred in such an

appeal would be paid by the decedent's estate. The Bank's appeal

was brought directly to this court pursuant to Supreme Court Rule

302 (134 Ill. 2d R. 302). Hicks filed a cross-appeal, claiming that

the trial court erred in permitting the Bank to appeal the court's

determination of heirship at the expense of the estate.



                                 ANALYSIS

                           I. Constitutionality

     We first address the trial court's order declaring section 2--

2(d) of the Probate Act unconstitutional. The trial court found

section 2--2(d) unconstitutional on the ground that it created a

sex-based classification that could not withstand strict scrutiny.

Before reviewing the propriety of that finding, we briefly discuss

the standard under which the statute is reviewed.

     Prior to ratification of the 1970 Illinois Constitution,

legislative enactments that classified on the basis of sex, like

most legislative classifications, were reviewed under the more

lenient, rational basis standard of judicial review. See, e.g.,

Jacobson v. Lenhart, 30 Ill. 2d 225, 227 (1964); Henson v. City of

Chicago, 415 Ill. 564 (1953). Article I, section 18, of the 1970

Constitution, however, specifically bars discrimination on the

basis of sex. Ill. Const. 1970, art. I, §18. That constitutional

provision states:

               "The equal protection of the laws shall not be

          denied or abridged on account of sex by the State or its

          units of local government and school districts."

In People v. Ellis, 57 Ill. 2d 127 (1974), our court found that

this constitutional provision was intended to supplement and expand

the guarantees of the equal protection provision of the bill of

rights. The Ellis court determined that "a classification based on

sex is a `suspect classification' which, to be held valid, must

withstand `strict judicial scrutiny.' " Ellis, 57 Ill. 2d at 132-

33; see also Phelps v. Bing, 58 Ill. 2d 32, 35 (1974). Under the

strict scrutiny standard of review, a statute is not entitled to a

presumption of constitutionality. Rather, the statute may be upheld

only if the means employed by the legislature to achieve the stated

goal were necessary to advance a compelling state interest.

Fumarolo v. Chicago Board of Education, 142 Ill. 2d 54, 73 (1990).

In addition, the statute must be narrowly tailored; that is, a

statute incorporating a suspect classification will be upheld only

if the legislature employed the least restrictive means consistent

with attainment of the legislative goal. Fumarolo v. Chicago Board

of Education, 142 Ill. 2d 54, 73 (1990).



                                     A

     With these principles in mind, we now consider the trial

court's order that section 2--2(d) illegally discriminated on the

basis of gender and resulted in a denial of equal protection of the

laws in violation of section 18 of article I of the Constitution of

1970. In addressing the propriety of this finding, we consider

first whether the statute creates a sex-based classification. As

stated, that section specifies the manner in which the estate of an

intestate decedent who was illegitimate at the time of death shall

be distributed. It provides:

               "(d) If there is no surviving spouse or descendant

          but the mother or a descendant of the mother of the

          decedent: the entire estate to the mother and her

          descendants, allowing 1/2 to the mother and 1/2 to her

          descendants per stirpes." 755 ILCS 5/2--2(d) (West 1994).

The father of an illegitimate child who dies intestate is not

entitled to any part of his child's estate under the statute.

     We agree with the trial court that the statute creates a sex-

based classification. The statute distinguishes between the parents

of an illegitimate child based solely upon the gender of the

parent. Because only females can occupy the status of motherhood,

only females are entitled to inherit from their illegitimate

offspring under the statutory scheme. By the same token, because

only males have the family position of fatherhood, only males are

unconditionally excluded under the statute from inheriting from

their illegitimate offspring. Thus, the statute creates a sex-based

classification and will be upheld only if it withstands strict

scrutiny.



                                     B

     We must therefore determine whether the statutory

classification is necessary to advance a compelling state interest

and whether it is narrowly tailored to achieve that interest.

Fumarolo, 142 Ill. 2d at 73. In an attempt to justify the sex-based

classification created by statute, the Bank argues that the

position of the biological father of an illegitimate child is

different from that of the biological mother and that the

differences in their situations justify the disparate treatment at

issue here.



                            1. Presumed Intent

     The Bank first argues that the disparate treatment afforded to

the mothers and fathers of illegitimate children is justified by

the overriding purpose of section 2--2(d) and all laws governing

intestate succession, which is to give effect to the presumed

intent of deceased intestates. As the Bank notes, our intestacy

laws apply only when a deceased leaves no will, and such laws

represent a legislative effort to express the presumed wishes of a

deceased intestate. The Bank argues that section 2--2(d) accurately

reflects the presumed intent of illegitimate children who die

intestate. The Bank contends that section 2--2(d) accords mothers

of illegitimate children different inheritance rights than fathers

because the legislature recognized that illegitimate children

typically have a much closer relationship with their mothers than

with their fathers. The Bank notes that mothers not only bear the

physical and emotional ramifications of pregnancy, but also

customarily assume a disproportionate share of the responsibilities

of raising an illegitimate child. See King v. Commonwealth, 221 Va.

251, 269 S.E.2d 793 (1980). According to the Bank, fathers of

illegitimate children often fail to support their children, unless

compelled by court order to do so. In addition, the Bank asserts,

fathers frequently have no meaningful personal relationship with

their illegitimate children. It is reasonable, the Bank contends,

for the legislature to presume that illegitimate children bear no

affection for parents who fail to support and acknowledge them.

Accordingly, it claims that section 2--2(d) simply carries out the

deceased intestate's presumed wishes that his or her estate be

distributed only to his or her mother and her descendants.

     The state certainly has a legitimate interest in enacting laws

that attempt to give effect to the presumed intentions of a

deceased intestate. The state may also have a legitimate interest

in enacting laws which allow only those parents who have

demonstrated an interest in their illegitimate children to inherit

by intestate succession. The United States Supreme Court has

recognized that "[i]f one parent has an established custodial

relationship with the child and the other parent has either

abandoned or never established a relationship, the Equal Protection

Clause does not prevent a State from according the two parents

different legal rights." Lehr v. Robertson, 463 U.S. 248, 267-78,

77 L. Ed. 2d 614, 630-31, 103 S. Ct. 2985, 2996-97 (1983). We

assume, for the sake of argument, that the State's interest in

enacting legislation which accomplishes these goals is compelling.

(Cf. Trimble v. Gordon, 430 U.S. 762, 775 n.16, 52 L. Ed. 2d 31, 42

n.16, 97 S. Ct. 1459, 1467 n.16 (1977) (suggesting that presumed

intent is not a valid state objective for purposes of the equal

protection clause, at least where the statute reflecting such

intent discriminates against illegitimates).

     The question here is whether the discriminatory means employed

in section 2--2(d)--which discriminates against fathers of

illegitimate children--is narrowly tailored to achieve the state's

asserted goals. We conclude that it is not narrowly tailored

because the legislature did not employ the least restrictive means

for accomplishing its asserted purpose. Here, the state's interest

could be effectively achieved in a gender-neutral manner, by

allowing intestate succession by any parent who has acknowledged

and supported their illegitimate child. (See 8 U.L.A. §2--114(c)

(1991) (Uniform Probate Code) ("Inheritance from or through a child

by either natural parent or his [or her] kindred is precluded

unless the natural parent has openly treated the child as his [or

hers], and has not refused to support the child").

     Instead, the challenged statute " `make[s] overbroad

generalizations based on sex which are entirely unrelated to any

differences between men and women [and] which demean the ability or

social status of the affected class.' " Michael M. v. Superior

Court, 450 U.S. 464, 469, 67 L. Ed. 2d 437, 442, 101 S. Ct. 1200,

1204 (1981), quoting Parham v. Hughes, 441 U.S. 347, 354, 60 L. Ed.

2d 269, 276, 99 S. Ct. 1742, 1747 (1979). Section 2--2(d) is based

upon the presumption that a particular parent will be involved or

uninvolved in their illegitimate child's life simply because that

parent happens to be a man or a woman. Not all mothers assume sole

responsibility for their illegitimate offspring, and not all

fathers abandon such offspring. In fact, by employing a gender-

based classification, section 2--2(d) may actually thwart the

legislature's desire to effectuate an illegitimate child's presumed

intent in some cases. By employing a gender-based criteria, section

2--2(d) allows a mother who abandons her illegitimate child at

birth to inherit from that child, while denying surviving fathers

the opportunity to inherit even where there is conclusive evidence

that they were objects of their child's affection. As stated, the

objectives of the statute could be completely and effectively

served by allowing intestate succession by any parent who has

acknowledged and supported their illegitimate child.

     The Bank argues that administrative concerns support the

statute. The Bank, in effect, contends that it is more efficient

for the legislature to presume that mothers and not fathers are the

natural objects of their illegitimate child's affection than to

require a case-by-case determination. The United States Supreme

Court has held, however, that gender-based discrimination cannot be

justified on the grounds of administrative convenience. In Reed v.

Reed, 404 U.S. 71, 76, 30 L. Ed. 2d 225, 230, 92 S. Ct. 251, 254

(1971), the Court said that "[t]o give a mandatory preference to

members of either sex over members of the other, merely to

accomplish the elimination of hearings on the merits, is to make

the very kind of arbitrary legislative choice forbidden by the

Equal Protection Clause." See also Frontiero v. Richardson 411 U.S.

677, 689, 36 L. Ed. 2d 583, 593, 93 S. Ct. 1764, 1771-72 (1973)

(where the Court rejected an attempt to justify, on the grounds of

administrative convenience, a gender-based classification that

created a presumption that wives were dependent upon their

husbands, while requiring proof of dependency in the case of

husbands). By the same token, we find that the gender-based

classification found in section 2--2(d) cannot be justified on the

ground that it effectuates the intent of an illegitimate who dies

intestate, because the legislature did not employ the least

restrictive (i.e., gender-neutral) means of accomplishing that

purpose.



                  2. Penalizing Fathers of Illegitimates

     The Bank next argues that the disparate treatment afforded to

mothers and fathers of illegitimates may be justified on the ground

that it effectuates the legislature's interest in encouraging

family relationships and penalizing irresponsible procreation. The

Bank concedes, however, that mothers and fathers bear equal moral

accountability for conceiving illegitimate children. The Bank also

concedes that mothers and fathers of an illegitimate child are

similarly situated in terms of their capacity to legitimate a

child. See Dotson v. Sears, Roebuck & Co., 157 Ill. App. 3d 1036

(1987). The Bank nevertheless argues that the statute granting

preferential inheritance rights to mothers of illegitimate children

is proper because it penalizes men who father children through

women whom they have no intention of marrying. The Bank argues that

imposing a penalty only upon fathers of illegitimate children is

appropriate, because women have a natural disincentive to avoid

unwanted pregnancies.

     In Illinois, neither a mother nor a father may unilaterally

legitimize a child. An adjudication of paternity during the

fathers's lifetime does not thereby legitimize an illegitimate

child. Dotson v. Sears, Roebuck & Co., 157 Ill. App. 3d 1036

(1987). Rather, legitimization is accomplished only when an

illegitimate child's parents intermarry and the illegitimate child

is acknowledged by the father as his child. 755 ILCS 5/2--2(h)

(West 1994). Because marriage is possible only with the consent of

both parents, the means by which a child may be legitimated are

under the control of both parents. Therefore, the discriminatory

classification employed in section 2--2(d) may not be justified on

the ground that it properly penalizes fathers of illegitimate

children.

     Section 2--2 is distinguishable in this respect from the

statute at issue in Parham, 441 U.S. at 355, 60 L. Ed. 2d at 277,

99 S. Ct. at 1747-48. In Parham, the Supreme Court upheld a statute

that permitted the father of an illegitimate child to sue for the

child's wrongful death only if he had legitimated the child during

the child's lifetime. In Parham, however, a state statute permitted

a father to legitimate his child simply by filing a petition in

state court identifying the child and its mother and requesting an

order of legitimation. The father therefore had the unilateral

power to legitimate his child and thereby remove himself from the

disability imposed by the wrongful death statute. In Illinois, on

the other hand, the father of an illegitimate child is powerless to

remove himself from the statutory burden imposed in section 2--

2(d), unless the mother of the child consents to legitimate their

child through marriage. We therefore reject the Bank's claim that

the discriminatory classification employed in section 2--2(d) may

be justified on the ground that it properly penalizes fathers of

illegitimate children.



                           3. Proof of Paternity

     The Bank's proffered justifications for the gender-based

discrimination found in section 2--2(d) are far from the strict

showing required to sustain a gender-based classification under

article I, section 18, of the Illinois Constitution. We find it

appropriate to note at this juncture, however, that we do not

suggest that any gender-based classification would violate article

I, section 18, of the Illinois Constitution. Such classifications

will be upheld when they are narrowly tailored to accomplish a

compelling state purpose.

     One potential justification for gender-based classifications

is the difficulties associated with proof of paternity. In this

regard, we note that the state has a legitimate interest in

ensuring that a decedent's estate is distributed only to actual

members of his family. The United States Supreme Court has

recognized that the danger of fraudulent claims against a

decedent's estate is more problematic where illegitimate children

and their parents are involved than in cases involving legitimate

children. See Trimble, 430 U.S. at 770, 52 L. Ed. 2d at 39, 97 S.

Ct. at 1465; Lalli v. Lalli, 439 U.S. 259, 268-69, 58 L. Ed. 2d

503, 511-12, 99 S. Ct. 518, 525 (1978). The Supreme Court has also

recognized that the danger of fraudulent claims is more apparent in

cases involving fathers and their illegitimate children than in

cases involving mothers and illegitimate children, for the simple

reason that proof of paternity is more problematic than proof of

maternity. See Trimble, 430 U.S. at 770, 52 L. Ed. 2d at 39, 97 S.

Ct. at 1465; Lalli, 439 U.S. at 268-69, 58 L. Ed. 2d at 511-12, 99

S. Ct. at 525.

     The Court has noted that the identity of the mother of an

illegitimate child is rarely in doubt, since the birth of a child

is a recorded or registered event usually taking place in the

presence of others. Parham, 441 U.S. at 355, 60 L. Ed. 2d at 277,

99 S. Ct. at 1747-48; Lalli, 439 U.S. at 268, 58 L. Ed. 2d at 511,

99 S. Ct. at 525. The identity of the father, on the other hand, is

frequently a subject of dispute where an illegitimate child is

concerned.

     In Trimble v. Gordon, the Court recognized " `the lurking

problems with respect to proof of paternity,' [citation], and the

need for the States to draw `arbitrary lines . . . to facilitate

the potentially difficult problems of proof,' [citation]." Trimble,

430 U.S. at 771, 52 L. Ed. 2d at 40, 97 S. Ct. at 1465. The Supreme

Court also noted that, "[t]he more serious problems of proving

paternity might justify a more demanding standard for illegitimate

children claiming under their fathers' estates than that required

either for illegitimate children claiming under their mothers'

estates or for legitimate children generally." Trimble, 430 U.S. at

770, 52 L. Ed. 2d at 39, 97 S. Ct. at 1465; see, e.g., Lalli v.

Lalli, 439 U.S. 259, 268-69, 58 L. Ed. 2d 503, 511-12, 99 S. Ct.

518, 525 (1978) (upholding statute that allowed illegitimate

children to inherit unconditionally from their mothers, but allowed

inheritance for an intestate father only where a court order

declaring paternity was entered during the father's lifetime,

finding the evidentiary requirement substantially related to the

state's interest in avoiding the difficulties associated with proof

of paternity and exposure to spurious claims); Parham v. Hughes,

441 U.S. 347, 60 L. Ed. 2d 269, 99 S. Ct. 1742 (1979) (right to

bring wrongful death action); Caban v. Mohammed, 441 U.S. 380, 393

n.15, 60 L. Ed. 2d 297, 308 n.15, 99 S. Ct. 1760, 1768 n.15 (1979)

(adoption); 755 ILCS 5/2--2(h) (West 1994).

     The "lurking problems" associated with proof of paternity may

also arise in circumstances where a father is attempting to inherit

from his illegitimate child's estate. Thus, when enacting statutes

which govern the rights of parents to inherit from their

illegitimate children, such as section 2--2(d), the legislature has

a legitimate interest in adopting measures that minimize or avoid

the difficult problems associated with proof of paternity. The more

serious problems of proving paternity might justify a more

demanding standard for fathers claiming under their illegitimate

children's estates than that required for mothers claiming under

the estates of their illegitimate children.

     The distinction drawn in section 2--2(d) between mothers and

fathers of illegitimate children, however, cannot be justified on

this ground. Section 2--2(d) cannot withstand strict scrutiny,

because the statute is not narrowly tailored to effectuate the

state's interests in avoiding either the difficulties associated

with proof of paternity after the illegitimate child's death or the

danger of fraudulent claims by purported fathers against the

estates of illegitimate children. Section 2--2(d) bars all fathers

from inheriting from the estates of their illegitimate children.

The statutory bar applies even in cases, such as this, where the

father's paternity has been established in a judicial proceeding

during the child's lifetime.

     In this respect, section 2--2(d) is comparable to a section of

the Illinois Probate Act that the United States Supreme Court

struck down in Trimble as violative of the equal protection clause

of the federal constitution. The statute at issue in Trimble

allowed illegitimate children to inherit by intestate succession

only from their mothers, but not through their fathers. The Supreme

Court found the statute unconstitutional under the lenient rational

basis standard of review, stating that the "[d]ifficulties of

proving paternity in some situations do not justify the total

statutory disinheritance of illegitimate children whose fathers die

intestate." Trimble, 430 U.S. at 772, 52 L. Ed. 2d at 40, 97 S. Ct.

at 1466.

     The Court found that the statute was not "carefully tuned to

alternative considerations" since it excluded inheritance by

illegitimates even when the decedent was determined to be the

illegitimate child's father in a state court paternity action. The

Court concluded that the statute was constitutionally flawed

because it excluded significant categories of illegitimate children

whose inheritance rights could be recognized without jeopardizing

the orderly settlement of estates. Trimble, 430 U.S. at 770, 52 L.

Ed. 2d at 39, 97 S. Ct. at 1465.

     Section 2--2(d) is similarly flawed. The problems associated

with proving paternity might justify a statute that imposes a more

demanding standard on fathers claiming under their illegitimate

children's estates than that required for mothers claiming under

their illegitimate children's estate. The difficulties of proving

paternity in some situations, however, do not justify the total

statutory disinheritance of all fathers of illegitimate children

who die intestate. Section 2--2(d) cannot withstand strict

scrutiny, because that statute does not adopt the least restrictive

means of accomplishing the legislative goal of eliminating the

danger of fraudulent claims by putative fathers against their

illegitimate child's estate. Accordingly, we affirm the circuit

court's determination that section 2--2(d) illegally discriminates

on the basis of gender and results in a denial of equal protection

of the laws in violation of section 18 of the bill of rights of the

Illinois Constitution of 1970.



                               II. Remedies

     We next consider that part of the trial court's order which

held that, because section 2--2(d) was unconstitutional, section 2-

-1(d) of the Probate Act (755 ILCS 5/2--1(d) (West 1994) would

control the distribution of the estates of illegitimate decedents.

Section 2--1(d) governs the distribution of the estates of

legitimate decedents who die intestate without a surviving spouse

or descendants. That section allows both mothers and fathers (and

their descendants) to inherit from their legitimate children who

die intestate.

     The Bank argues that, given the legislature's express intent

to prohibit intestate succession by fathers of illegitimate

children, the trial court erred in applying a statute which grants

unconditional intestate succession rights to such fathers and their

children. The Bank maintains that this court should formulate a

common law remedy to fill the statutory gap left by the order

declaring section 2--2(d) unconstitutional. Alternatively, the Bank

argues that the court should stay the mandate declaring section 2--

2(d) invalid and allow the General Assembly to enact a

constitutional replacement.

     We find, however, that the trial court properly determined

that section 2--1(d) of the Probate Act should govern the

distribution of the estates of illegitimate decedents who die

intestate, at least until the legislature enacts a new statute

governing the distribution of such estates. Section 2--1 contains

the general rules of descent and distribution for the estates of

intestate decedents. On its face, section 2--1 applies to all

intestate decedents, without regard to whether they are legitimate

or illegitimate. In section 2--2, the legislature carved out an

exception to the general rules of section 2--1 for illegitimate

decedents. Thus, absent the limitations of section 2--2, section 2-

-1 would clearly apply to illegitimate decedents. Since we have

found section 2--2(d) unconstitutional, the general rules of

section 2--1 apply to govern the descent and distribution of the

estate of an illegitimate intestate decedent. We, therefore, find

that the general rules set forth in section 2--1 should govern the

distribution of Ronadra's estate. Obviously, the legislature is

free to enact a constitutional replacement of section 2--2, if it

believes that section 2--1 should not apply to illegitimate

decedents. For purposes of this case, however, section 2--1 must be

applied. The trial court's order distributing Ronadra's estate

pursuant to section 2--1(d) is therefore affirmed.





                             III. Cross-Appeal

     We next address Ronald Hicks' cross-appeal, which challenges

that portion of the trial court's order that permitted the Bank, as

administrator of Ronadra's estate, to file an appeal and assessed

costs against the estate. Hicks argues that the administrator lacks

standing to appeal, because he acts solely as a stakeholder and is

not aggrieved by the trial court's decision. Hicks also contends

that the trial court erred in permitting the administrator to

litigate conflicting claims of beneficiaries at the expense of the

estate.

     Initially, we note that it is the general rule that an

administrator of an estate ordinarily has no right to appeal an

order granting or denying a distribution of an estate. In re Estate

of Wagner, 184 Ill. App. 3d 882 (1989); Annotation, Right of

Executor or Administrator to Appeal From Order Granting or Denying

Distribution, 16 A.L.R.3d 1274, 1277 (1967). The rationale for this

rule is that the administrator is not an aggrieved party, but is

merely a stakeholder with a duty to deliver the residue of the

estate to those persons designated by the court. In re Estate of

Wagner, 184 Ill. App. 3d 882 (1989); see also In re Estate of

Burke, 203 Ill. App. 3d 319 (1990) (applying the same reasoning to

an executor); In re Estate of Tingos, 72 Ill. App. 3d 703 (1979)

(applying the same reasoning to an executor); 16 A.L.R.3d at 1277

(and the cases cited therein). An order granting or denying a

distribution of an estate affects the rights of those who have a

claim against the estate (e.g., an heir, legatee, or devisee) and

it is those persons who are considered to be aggrieved parties such

that they may appeal at their own expense. 16 A.L.R.3d at 1277. The

administrator of an estate, however, generally cannot litigate the

conflicting claims of the beneficiaries at the expense of the

estate. 16 A.L.R.3d at 1277.

     In this case, the order appealed from was the trial court's

ruling that a portion of Ronadra's estate was to be distributed to

her father, Ronald Hicks, and his two children, Rochelle Hicks and

Ronyall Hicks. This ruling resulted in reducing the distributive

shares of Ronadra's mother, Sandra Bender, and her three children,

LaShawn, LaDonna and LaDiea Bender. Consequently, these individuals

were the parties "aggrieved" by the trial court's order and were

the proper parties to appeal the trial court's order. The Bank, as

administrator of the estate, was not an aggrieved party. As such,

the Bank did not have standing to bring this appeal in its capacity

as administrator of the estate. In re Estate of Wagner, 184 Ill.

App. 3d at 885-87. Therefore, we reverse the trial court's order

that allowed the Bank to file an appeal in its capacity as

administrator of Ronadra's estate.

     Although the Bank has no standing to bring this appeal in its

capacity as administrator of Ronadra's estate, we nevertheless find

that this appeal is properly before this court. The record

indicates that the Bank acted in a dual capacity as both

administrator of Ronadra's estate and as guardian of the estates of

Ronadra's two maternal half-sisters, LaDonna and LaDiea Bender. The

trial court entered an order authorizing the Bank to appeal the

disposition of Ronadra's estate on behalf of those minor siblings.

We find that the trial court's order allowing the Bank to prosecute

this appeal on behalf of the decedent's two minor siblings was

proper because the aforementioned minors are aggrieved parties.

LaDonna and LaDiea Bender are aggrieved parties because the trial

court's order disposing of Ronadra's estate reduced their share of

the estate. Therefore, we hold that the Bank has standing to bring

this appeal in its capacity as guardian of the estates of LaDonna

and LaDiea Bender. However, because the Bank is bringing this

appeal on behalf of these two minor siblings and not on behalf of

Ronadra's estate, the estates of LaDonna and LaDiea Bender should

bear the reasonable costs and expenses, including attorney fees, of

the Bank in bringing this appeal. We thus reverse that portion of

the trial court's order assessing such costs and fees against the

estate.



                                CONCLUSION

     We affirm the trial court's conclusion that section 2--2(d) of

the Probate Act unlawfully discriminates on the basis of gender, in

violation of the equal rights provision of the Illinois

Constitution. Ill. Const. 1970, art. I, §18. We also affirm the

trial court's holding that section 2--1(d) of the Probate Act (755

ILCS 5/2--1(d) (West 1994)) will control the distribution of the

estates of illegitimate decedents who die intestate without a

surviving spouse or descendants. We reverse the trial court's order

authorizing the Bank to bring this appeal in its capacity as

administrator of Ronadra's estate. We further reverse that portion

of the trial court's order assessing the costs and fees associated

with bringing the instant appeal against the estate. We hold,

however, that the Bank has standing to bring this appeal in its

capacity as guardian of the estates of Ronadra's minor half-

sisters, LaDonna and LaDiea Bender. We further hold that the Bank's

costs and fees are properly assessed against the estates of LaDonna

and LaDiea Bender, whom the Bank represented in bringing this

appeal.

     The judgment of the circuit court is affirmed in part and

reversed in part.



Judgment affirmed in part

                                                      and reversed in part.

