The pivotal issue in this case is whether we should give retroactive effect to Trimble v. Gordon, 430 U.S. 762, 97 S. Ct. 1459, 52 L. Ed. 2d 31 (1977). The facts giving rise to this litigation show that Linn Hunt died intestate on April 19, 1972. He had never married but had numerous collateral heirs, appellees Ray Hunt, et al. The principal asset of his estate was more than 400 acres of land which appellees have had possession of since Linn Hunt’s death. There is a statute, Ark. Stat. Ann. § 61-141 (d) (Repl. 1971), which prevents illegitimate children from inheriting from their fathers. Our statute is almost identical to the Illinois statute declared unconstitutional on equal protection grounds in Trimble v. Gordon, supra, on April 26, 1977. On September 26, 1977, appellant Marie Frakes brought this action, contending that she was the illegitimate child of Linn Hunt and that in view of Trimble v. Gordon, supra, she inherited the 400 acres of land that Linn Hunt owned as his sole heir. The trial court held Ark. Stat. Ann. § 61-141 (d) (Repl. 1971) was unconstitutional in view of Trimble v. Gordon, supra. He also found that appellant was the illegitimate child of Linn Hunt. However, the trial court ruled that appellant was not within the class of illegitimates who would be permitted to inherit from the father, since there was no semblance of a parent-child relationship nor was there a formal order establishing paternity. Both parties have appealed.
We, as did the parties in oral argument, recognize that Ark. Stat. Ann. § 61-141 (d) (Repl. 1971) is constitutionally invalid under Trimble v. Gordon, supra, — see Lucas v. Handcock, Adm’x., (handed down this same date), 266 Ark. 142, 583 S.W. 2d 491 (1979). In her brief appellant, with respect to the pivotal issue of whether she can rely upon Trimble v. Gordon, supra, states:
“Appellant recognizes that if Ark. Stat. Ann. *173§ 61-141 (d) is declared unconstitutional the Court will be required, in some cases, to enunciate rules that will protect those persons who have relied upon the statute. In some cases, equity and justice will require exception to permitting inheritance by illegitimates where heirs or bona-fide purchasers for value have acted in reliance on a justified assumption that no illegitimate exists. Appellant contends that in her case no necessity exists for enunciating such a rule since no bona fide purchasers for value are involved in the litigation and since there has been no reliance upon the non-existence of an illegitimate by those nieces and nephews and children of nieces and nephews who would have inherited from Linn Hunt, but for Appellant.”
Arkansas, like most states, permits a person to will his property to whomever he wishes to the exclusion of children. To exclude children, however, Ark. Stat. Ann. §60-507(Repl. 1971), requires that a child be mentioned specifically or as a member of a class. If a person does not elect to make a will, then his property, upon his death, is distributed according to the laws of descent and distribution. Consequently, a person of modest means who is satisfied with the persons to whom distribution of his property would be made under the law of descent and distribution has no reason to go to the trouble and expense of making a will. Had Linn Hunt made an inquiry of his lawyer as to the law of descent and distribution as much as a year before his death, his lawyer with confidence, citing Labine v. Vincent, Adm’r, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed 2d 288 (March 29, 1971), could have informed Linn Hunt that an illegitimate child would not take under the law of descent and distribution.
Furthermore, should we accept appellant’s argument, we would run hgad on into a title problem that could materially hamper the improvement of property, for Ark. Stat. Ann. §37-226 (Repl. 1962) provides:
“If any person entitled to bring any action, under any law of this state, be at the time of the accrual of the cause of action, under twenty-one [21] years of age, or insane or imprisoned beyond the limits of the state, such *174person shall be at liberty to bring such action within three [3] years next after full age, or such disability may be removed.”
See, also, the pretermitted child statute, Ark. Stat. Ann. § 60-507 (b)(Repl. 1971).
When the Supreme Court of Kentucky was faced with the problem before us in Pendleton v. Pendleton, (Ky. 1978) 560 S.W. 2d 538 it held:
“In so far as it declares the invalidity of KRS 391.090 this opinion shall have no retroactive effect upon the devolution of title occurring before April 26, 1977 (the date of the Trimble opinion), except for those specific instances in which the dispositive constitutional issue raised in this case was then in the process of litigation.”
The Supreme Court of Tennessee after holding its illegitimate statute invalid in Allen v. Harvey, Tenn., 568 S.W. 2d 829 (1978) stated:
“The decision we reach today — that a child born out of wedlock may inherit from and through his father— is specifically limited to cases where paternity is established by clear and convincing proof and to cases where rights of inheritance have not finally vested. All cases in conflict with this decision are hereby expressly overruled.
The application of this decision shall be prospective only but it shall govern any cases pending in the courts of Tennessee on the date this opinion is released, asserting the right of children born out of wedlock to inherit from the natural father.”
Based upon the foregoing authorities and to prevent chaotic conditions arising from the lack of title to real property, we affirm the trial court — not for the reasons stated by the trial court — but on the basis that Trimble v. Gordon, supra, should not be applied retroactively.
*175By a cross appeal, appellees contend that the trial court erred in finding that appellant was the illegitimate child of Linn Hunt. While we have some doubt whether the evidence of paternity is sufficient to sustain the heavy burden of proof required to prove paternity, we need not address that issue as our decision on the retroactive effect of Trimble v. Gordon. supra, makes the finding of paternity moot.
Affirmed.
Fogi.kman and Purtle, JJ., dissent.