Court of Appeals of Missouri, Eastern District, Fourth Division
April 28, 2015
IN THE MATTER OF THE CHARLES H. STIX TESTAMENTARY TRUST DATED AUGUST 7, 1945, AND THE CLARA F. STIX TESTAMENTARY TRUST DATED APRIL 20, 1943
from the Circuit Court of the City of St. Louis.
1222-PR00313. Honorable Philip D. Heagney.
APPELLANT: Michael W. Bartolacci, Kimberly M. Bousquet,
Alicia M. Konstantinovich, St. Louis, MO.
RESPONDENT: Robert J. Selsor, Atty. for Resp. Justin S.
Grace, St. Louis, MO; Michael J. McKitrick, Misty A. Watson,
Atty. for Resp. Brian C. Pate, St. Louis, MO; Robert John
Will, Atty. for Resp. Bank of America, St. Louis, MO.
M. CLAYTON III, Judge.
Charles Grace, Nancy Grace, and William Grace (respectively
" Charles," " Nancy," and "
William," and collectively " Appellants" )
appeal the probate court's grant of summary judgment in
favor of Justin Grace (" Respondent" ), finding
that Respondent was a qualified beneficiary to two
testamentary trusts at issue because he is the descendant of
Appellants' brother Robert Grace. We affirm.
are the grandchildren of Charles Stix (" Charles" )
and the great-grandchildren of Clara Stix (" Clara"
), Charles' mother. The provisions of the last will and
testament of both Clara and Charles created trusts for the
benefit of their descendants, effective April 20, 1943 and
August 7, 1945, respectively. Charles' daughter Ann Stix
Grace (" Ann" ) was the sole lifetime beneficiary
of both trusts following the death of Clara and Charles and
received all income from each trust.
the trusts terminated upon Ann's death on January 27,
2012. The trusts used slightly different language to dispose
of the estate following Ann's death. Clara's trust
provided that upon Ann's death, her trust estate would be
divided among Ann's living children and, if any of
Ann's children predeceased her, that child's portion
would pass to that child's descendants. Charles'
trust provided that upon the death of Ann, the Trustee was to
distribute all the money and other property then constituting
the trust estate in equal shares per stirpes to Ann's
living descendants. Although the trusts used different
language, the class of " descendants" is identical
under both trusts, with each descendant taking an equal
share. The trust documents do not otherwise define the term
five children, including Appellants Charles, Nancy, and
William, as well as Robert Grace and John Grace. Robert and
John each predeceased Ann, John without leaving any children.
The issue in this case is whether Respondent is Robert's
descendant within the meaning of the trusts and therefore
entitled to Robert's share of the proceeds.
March 28, 1985, Robert married Respondent's mother, Susan
Martin (" Susan" ). Respondent was born in the
State of Washington on October 28, 1985, and Respondent's
birth certificate listed Robert as Respondent's father.
Robert and Susan divorced on October 24, 1988, also in the
State of Washington. The Washington court issued a
dissolution judgment with findings of fact and conclusions of
(" the Washington judgment" ) stating " the
following child has been born as a result of this
marriage : Justin Samuel Grace, born October 28,
1985" (emphasis added). The judgment granted Susan
primary custody of Respondent and Robert liberal visitation
died on March 6, 1994, over six years after the divorce and
when Respondent was eight years old. Robert's will left
nothing directly to Respondent. Instead, Respondent asserted
a claim to an award in lieu of homestead under Washington
law, to which was Robert's estate opposed. In settling
that claim, Susan and Respondent's guardian ad litem
agreed to acknowledge that Respondent was not Robert's
biological child despite being born during Robert and
Ann's death, Bank of America, N.A. as trustee for both
Charles' and Clara's trusts filed a petition for
declaration of rights and instructions for final distribution
with the probate court. Specifically, the petition sought
instructions as to whether Respondent was a qualified
beneficiary as Robert's descendant. Appellants and
Respondent filed cross-motions for summary judgment. The
probate court denied Appellants' motion and granted
Respondent's motion, finding that the Washington judgment
established Respondent was a descendant within the meaning of
the trust documents, and the Washington judgment collaterally
estopped Appellants from relitigating Respondent's
parentage. This appeal followed.
bring two points on appeal. In their first point, Appellants
assert the probate court erred in granting summary judgment
in favor of Respondent because Respondent is not a "
descendant" within the meaning of the trust documents.
In their second point, Appellants contend the probate court
erred granting summary judgment in favor of Respondent
because the Washington judgment should not collaterally estop
their challenge to Respondent's paternity. Because the
first point is dispositive, we need not consider
Appellants' second point.
Standard of review
Summary judgment is reviewed essentially de novo and affirmed
only where there are no genuine issues of material fact and
the movant is entitled to judgment as a matter of law.
ITT Commercial Finance Corp. v. Mid-America Marine Supply
Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). A defendant
may establish summary judgment is appropriate by showing, (1)
facts negating any one of the plaintiff's elements
necessary for judgment; (2) that the plaintiff has not
produced evidence sufficient for the finder of fact to find
the existence of one of the plaintiff's elements; or (3)
facts necessary to support a properly pleaded affirmative
defense. Roberts v. BJC Health System, 391 S.W.3d
433, 437 (Mo. banc 2013). We review the record in the light
most favorable to the party against whom judgment was
Respondent's status as a descendant
their first point, Appellants argue that the probate court
erred in granting summary judgment in favor of Respondent
because Respondent is not a " descendant" within
the meaning of the trust documents. Specifically, Appellants
assert that DNA evidence demonstrates that Respondent is
not the biological son of Robert and was therefore not
intended to be considered Ann's descendant under the
language of Charles' and Clara's trusts. We disagree.
Testators may dispose of their property to whomever and in
whatever manner they desire. Sweeney v. Eaton, 486
S.W.2d 453, 456 (Mo. 1972). If the testator is shown to have
testamentary capacity, she " has the right to dispose of
her property according to her own way of thinking, and it is
not for courts or juries to make a will or codicil for
her." Dorsey v. Dorsey, 156 S.W.3d 442, 446
(Mo. App. E.D. 2005) (quotations omitted). Here, Charles and
Clara decided to leave contingent remainder interests in
their testamentary trusts to a class they defined as "
descendants," and they are presumed to have understood
and intended the legal effect of that disposition. Easter
v. Ochs, 837 S.W.2d 516, 517 (Mo. banc 1992). The trust
documents did not otherwise define the term "
long been the law of this state that a child born during a
marriage is legally presumed to be the husband's
offspring for all purposes, including matters of probate and
inheritance. The Missouri Supreme Court outlined this rule in
Bower v. Graham, 285 Mo. 151, 225 S.W. 978 (Mo.
1920), a case factually similar to the circumstances here. In
Bower, the child in question was conceived while the
mother was married to one man, but born five months after she
divorced and married another. Id. at 978-79. On the
second husband's death, his siblings challenged the
child's paternity and right to inherit from his estate.
Id. at 978. The Supreme Court held that the second
husband was legally the child's father, and she was
entitled to inherit from his estate. Id. at 978-80.
The Court reasoned that the common law presumes a child born
during a marriage to be the child of the husband.
Id. at 980. Further, the second husband acknowledged
paternity during his lifetime, and that acknowledgment was
binding on his siblings in the probate proceeding.
facts are substantially similar here. Respondent was born
during Robert's marriage to Susan. Under both Missouri
and Washington law, Robert is therefore presumed to be
Respondent's father for all purposes. See section
210.841.1 RSMo Supp. 1988 (" The judgment or order of
the court determining the existence or nonexistence of the
parent and child relationship is determinative for all
purposes" ); Miller v. Sybouts, 97 Wn.2d 445,
645 P.2d 1082, 1084 (Wash. 1982) (citing RCW
26.26.040, providing a man is presumed to be
natural father of a child if he and the child's natural
mother are married when the child is born). Further, the
Washington court adjudicated the issue of Respondent's
paternity and the Washington judgment determined him to be
Robert's son. Also, no one formally challenged that
paternity determination at the
time it was made or in any of the years following until
Robert's death over six years later. See
Matter of Burley, 33 Wn.App. 629, 658 P.2d 8, 13
(Wash. Ct.App. 1983) (citing RCW
26.26.060(1)(b), requiring that challenges to determine
the non-existence of a father-child relationship be brought
within a reasonable time).
admit the Washington judgment is final and determinative and
do not dispute Robert was legally Respondent's father for
purposes of custody and child support. However, they dispute
that it is binding on them for probate purposes. This
argument must fail. Under Bower, because Robert
acknowledged paternity during his lifetime on
Respondent's birth certificate and in the divorce
proceeding, that acknowledgment is binding on other parties
with property interests in his estate, just as it was on the
decedent's siblings in Bower. Bower has been
repeatedly cited favorably by subsequent Missouri opinions,
including those contemporary to the execution of Clara's
and Charles' trust documents. See Bernheimer
v. First Nat. Bank of Kansas City, 359 Mo. 1119, 225
S.W.2d 745, 751 (Mo. 1949); Boudinier v. Boudinier,
240 Mo.App. 278, 203 S.W.2d 89, 97 (Mo. App. 1947). Testators
are presumed to know and understand the meaning and effect of
the terms used in their probate documents as defined under
Missouri law. Easter, 837 S.W.2d at 517. "
Descendant" as it was used in the trust documents
therefore includes a child born in Respondent's
litigation surrounding Robert's estate and the subsequent
settlement do not change this outcome. Robert died in 1994,
over six years after the divorce and when Respondent was
eight years old. In settling Respondent's claim to an
award in lieu of homestead, Susan and Respondent's
guardian ad litem agreed to acknowledge in the settlement
that Respondent was not Robert's biological child despite
being born during the marriage. This acknowledgment does not
negate the earlier parentage adjudication in the Washington
judgment. The litigation surrounding Robert's estate was
not an adjudication of Respondent's parentage and no
court except the Washington court ruled on the issue.
Jersey Supreme Court addressed a similar set of facts in
In re Trust Created by Agreement Dated Dec. 20,
1961, 166 N.J. 340, 765 A.2d 746 (N.J. 2001). In that
case, several beneficiaries challenged the paternity of
another beneficiary, Jenia, thereby contesting her status as
a beneficiary. Id. at 749, 751. Jenia was born
during her purported father's marriage to her mother.
Id. at 749. Upon their divorce, the purported father
signed an acknowledgment that Jenia was his daughter, and the
trial court made a finding of fact that Jenia was " born
of the marriage." Id. at 750. Later, in
litigation regarding an unrelated trust, the purported father
testified he did not consider Jenia to be his child, but that
apparent disavowal was not adjudicated by any court.
Id. The New Jersey Supreme Court held no third party
could collaterally attack Jenia's parentage as previously
determined by the divorce proceeding. Id. at 759. It
reasoned that the New Jersey legislature chose language
providing for paternity judgments to be " determinative
for all purposes." Id. at 756. Further,
parentage determinations are meant to be final, and
subsequent claims or intimation of third parties, including
the purported father himself, are insufficient to overcome
the prior judgment. Id. at 755-56.
the reasoning of the New Jersey Supreme Court to be
persuasive. The Washington judgment making a finding of fact
that Respondent was " born as a result of [Robert and
Susan's] marriage was a final adjudication of
Respondent's parentage for all purposes." Just as
the New Jersey statute, the Missouri legislature used
language mandating that judgments making findings on the
issue of paternity are " determinative for all
purposes." Section 210.841.1. Therefore, statements made
by the parties in subsequent, unrelated litigation, on issues
not adjudicated by the later court, cannot overcome the
finality of the original parentage determination.
we address Appellants' claim that their Due Process
rights were infringed, in that they did not have the
opportunity to participate in the original litigation of
Respondent's parentage and their property interests were
affected. On this issue, we again find the reasoning of the
New Jersey Supreme Court in In re Trust to be
persuasive: " We note that the purported economic right
to become eligible for an unspecified share of trust proceeds
occupies a lower place in the hierarchy of rights as compared
to a putative father's right to the parent-child
relationship." In re Trust, 765 A.2d at 759.
Robert claimed paternity on Respondent's birth
certificate and he again claimed paternity at the time of his
divorce. His right to assert paternity over his legal child
overcomes any right to a slightly larger trust benefit
Appellants may have. Therefore, Appellants' Due Process
claim must fail.
is Robert's legal child, both by presumption and as
adjudicated by the Washington court. Appellants cannot
relitigate the matter decades later. The probate court did
not err in granting summary judgment in favor of Respondent
and finding he is a " descendant" within the
meaning of the trust documents. Point one is denied.
probate court's grant of summary judgment in favor of
Respondent is affirmed.
Richter, P.J., and Robert G. Dowd, J., concur.
 We may affirm a trial court's grant of
summary judgment on any ground raised in the motion and
supported by the record. Clark v. Kinsey, 405 S.W.3d
551, 553 (Mo. App. E.D. 2013).
This version of the statute was in effect
at the time of Robert and Susan's divorce and the
Washington judgment determining Respondent was born as a
result of the marriage. This section has been subsequently
amended but this language remains unchanged. All further
references to section 210.841.1 are to RSMo Supp.
This section was in effect at the time of
Robert and Susan's divorce and the Washington judgment
determining Respondent was born as a result of the marriage.
This section has been subsequently repealed and replaced by
the current version of the Washington parentage statute, RCW
26.26.116, but this legislative change is not relevant to the
Because the law of Missouri and Washington
is identical on this issue, we need not decide the choice of
This section was in effect at the time of
Robert and Susan's divorce and the Washington
judgment determining Respondent was born as a result of the
marriage. This section has been subsequently repealed and
replaced by the current statute of limitations, RCW
26.26.530(1), requiring a parentage action to be commenced
within four years of the birth of the child.