              In the Missouri Court of Appeals
                      Eastern District
                                       DIVISION FOUR

IN THE MATTER OF THE CHARLES H.                  )      No. ED102055
STIX TESTAMENTARY TRUST DATED                    )
AUGUST 7, 1945, AND THE CLARA F.                 )      Appeal from the Circuit Court
STIX TESTAMENTARY TRUST DATED                    )      of the City of St. Louis
APRIL 20, 1943                                   )      1222-PR00313
                                                 )
                                                 )      Honorable Philip D. Heagney
                                                 )
                                                 )      Filed: April 28, 2015

        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.

                                      I.      BACKGROUND

        Appellants 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.
        Both of 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 “descendant.”

        Ann had 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.

        On 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 law (“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 rights.

        Robert 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



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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 Susan’s marriage.

        On 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.

                                           II.      DISCUSSION

        Appellants 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.1

A.      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


1
  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).

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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 entered. Id.

B.     Respondent’s status as a descendant

       In 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 “descendant.”




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        It has 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, 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. Id.

        The 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. 19882 (“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, 645 P.2d 1082, 1084 (Wash.

1982) (citing RCW 26.26.040,3 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).4 Further, the Washington


2
  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. 1988.
3
  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 facts here.
4
  Because the law of Missouri and Washington is identical on this issue, we need not decide the choice of law
problem.

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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, 658 P.2d 8, 13 (Wash. Ct. App. 1983) (citing RCW 26.26.060(1)(b),5 requiring

that challenges to determine the non-existence of a father-child relationship be brought within a

reasonable time).

        Appellants 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, 225 S.W.2d 745, 751 (Mo. 1949); Boudinier v. Boudinier, 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 circumstances.

        The 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


5
  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.

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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.

       The New Jersey Supreme Court addressed a similar set of facts in In re Trust Created by

Agreement Dated Dec. 20, 1961, 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.

       We find 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



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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.

       Finally, 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.

       Respondent 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.




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                                   III.   CONCLUSION

       The probate court’s grant of summary judgment in favor of Respondent is affirmed.




                                                  ROBERT M. CLAYTON III, Judge

Roy L. Richter, P.J., and
Robert G. Dowd, J., concur.




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