IN RE ESTATE OF DAVIDSON, 61934.

• Decision Date: 12 November 1980
• Docket Number: No. 61934.,61934.
• Citation: 607 S.W.2d 690
• Parties: In re ESTATE of C. W. DAVIDSON, Deceased. Pauline EARRING, Appellant, v. Verna DAVIDSON et al., Respondents.
• Court: Missouri Supreme Court

607 S.W.2d 690

In re ESTATE of C. W. DAVIDSON, Deceased.

Pauline EARRING, Appellant, v. Verna DAVIDSON et al., Respondents.

No. 61934.

Supreme Court of Missouri, Division One.

November 12, 1980.

David L. Smith, Branson, for appellant.

Jerry L. Redfern, Springfield, for respondents.

ROBERT R. WELBORN, Commissioner.

Proceeding for determination of heirship. Pauline Earring filed Petition for Determination of Heirship in Taney County Probate Court, claiming right to share in the estate of C. W. Davidson, deceased. Petition alleged that Pauline was daughter of decedent, born out of wedlock, and that decedent had acknowledged and recognized her as his child during his lifetime and that, under Section 474.010, RSMo 1969, she was entitled to inherit as an heir of the decedent. A motion to dismiss was filed by administratrix, the widow of decedent, and also in behalf of widow individually and two sons of decedent. Probate court dismissed petition on grounds that it stated no claim upon which relief could be granted.

Petitioner appealed to circuit court, relying upon petition in probate court. Parties who had been successful in probate court filed an answer, denying allegations of motion as to paternity of movant and her right to inherit. Answer incorporated by reference the parties' motion in the probate court, which alleged, among other grounds, that by virtue of Section 474.060, RSMo 1969, movant as a child born out of wedlock was entitled to inherit only from her mother.

A hearing was held in the circuit court. The movant's trial brief asserted that construction of Section 474.060 to preclude inheritance by an illegitimate child from its father rendered it unconstitutional under Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977). The respondent's trial brief attacked this contention as not before the court, not having been raised in the probate court and no constitutional issue having been pleaded by the petitioner.

Evidence was heard and at the conclusion the court found that the petitioner was the child of the decedent, born out of wedlock, but that as a matter of law she was not entitled to inherit from the decedent. No express finding was made on the constitutional question.

Petitioner's motion for new trial asserted her constitutional question. Respondents moved to strike the constitutional objection as not timely raised. No action was taken on the after-trial motions and notice of appeal was filed upon the judgment's becoming final.

In this Court, the real issue is the timeliness of appellant's constitutional attack upon Section 474.060. Appellant's sole point rests upon the claimed unconstitutionality of that statute. She has not endeavored to support the allegation of her original motion to the effect that the decedent during his lifetime acknowledged her as his child. Respondents' position is based upon the heretofore established rules which prevent inheritance, as a general rule, by an illegitimate child from its father. See Martin v. Claxton, 308 Mo. 314, 274 S.W. 77 (1925); Hahn v. Hammerstein, 272 Mo. 248, 198 S.W. 833 (banc 1917). Respondents at the trial in the circuit court interposed and briefed numerous objections to the petitioner's evidence, based primarily upon the Dead Man's Statute, § 491.010, RSMo 1978. However, they do not attempt to support the ruling below on such grounds and, without challenging appellant's constitutional argument, rest on the contention that the trial court properly refused to consider the constitutional question because it had not been properly raised.

In the case of In re Strom's Estate, 213 Mo. 1, 111 S.W. 534 (1908), a petition was filed in the probate court, seeking to set aside an order directing the executor to take charge of the decedent's real estate. The probate court overruled the motion and an appeal was taken to the circuit court. In the circuit court, the movant amended his motion to allege that the order of the probate court violated specified provisions of the United States and Missouri Constitutions. The circuit court overruled the motion and the movant appealed to the Missouri Supreme Court.

In rejecting the appeal, the court stated (111 S.W. 536):

"2. Did the adding of the two constitutional grounds to the motion, after the appeal reached the circuit court, so raise constitutional questions that it is incumbent on this court to retain jurisdiction of the appeal? It is elemental in this state that on appeal from a probate court or a justice of the peace, the circuit court must try the case anew upon the same cause of action that was tried in the probate court or in the justice's court. It is obvious that the two constitutional questions imported into the case presented

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