Mariscal Ex Rel. Mariscal v. Johnson , 25 Tex. Sup. Ct. J. 128 ( 1982 )

626 S.W.2d 737 (1982)

Santa Anna MARISCAL, as Next Friend of Cesar Javier Mariscal, a Minor, Petitioner,
v.
John C. JOHNSON, Executor of the Estate of L. F. Nittler, Deceased, Respondent.

No. C-777.

Supreme Court of Texas.

January 6, 1982. Rehearing Denied February 10, 1982.

Pena, McDonald, Prestia & Ibanez, Alfonso Ibanez and L. G. Canales, Edinburg, L. Wayne Scott, San Antonio, for petitioner.

Kelley, Looney, Alexander & Sawyer, Ralph L. Alexander and Sidney Meadows, Edinburg, for respondent.

PER CURIAM.

This is a will contest. L. F. Nittler died on February 6, 1979, and John C. Johnson, executor, filed for probate the will executed on September 24, 1971. Santa Anna Mariscal, as next friend of her illegitimate son, Cesar Javier Mariscal, filed a petition to contest the will. She alleged that her son is the natural child of the decedent and, because the will makes no provision for him, he is a pretermitted child entitled to inherit from his father that portion of the estate to which he would be entitled if the decedent had died intestate. Tex.Prob.Code Ann. § 67(b). The trial court declared the will void based on the jury's determination that the child was the natural child of the decedent. The court of appeals reversed and remanded the case, holding that the jury issue should have inquired as to whether the child had been"recognized" by the alleged father. 620 S.W.2d 905. Both parties have filed application for writ of error.

The question of whether an illegitimate child may be recognized in any manner other than that provided in section 42 of the Texas Probate Code is not properly presented for our review. We therefore express no opinion on the writing of the court of appeals on this question. We refuse both applications for writ of error, no reversible error.