
    Geraldine SHELLY et al. v. Tory WOODYARD et al.
    No. 78-876.
    Supreme Court of Alabama.
    Feb. 22, 1980.
    Rehearing Denied April 11, 1980.
    W. Banks Herndon of Walker, Hill, Adams, Umbach & Herndon, Opelika, for appellants.
    Jennie Lee Kelley and John F. Dillon, IV, of Dillon, Kelley & Gavin, Alexander City, for appellees.
   EMBRY, Justice.

This is an appeal by Geraldine Shelly, Gary Gunn, Myrtis Tinsley and Maggie Gross, a minor, through her sister and next friend, Geraldine Shelly, from what is styled “Decree Granting Motion To Dismiss.” The motion was that of Idell Stone Woodyard, individually and as Executrix of the Last Will and Testament of Schuessler Woodyard, deceased, Booker Woodyard, Tory Woodyard, Mary Cox and Eva Fulton.

Plaintiffs below, Shelly, et al., filed their complaint seeking declaratory and incidental relief, which was once amended. Defendants below, Woodyard, et al., filed their “Motion To Dismiss Amended Complaint” reciting grounds, including the failure to state a claim upon which relief could be granted, preceded by the phrase: “To dismiss the action * * • (Emphasis added.) The “Decree Granting Motion To Dismiss” merely recites “ * * * that said motion is due to be and is granted.” It does not dismiss the action nor does it tax costs.

In Guilford v. Spartan Food Systems, Inc., 372 So.2d 7 (Ala.1979), this court held that an order granting defendants’ Rule 12(b)(6), ARCP, motion to dismiss for failure to state a claim upon which relief can be granted will support an appeal.

■ The dispositive issue in this case is whether plaintiffs fall within any of the three categories of. legitimated children that permit a previously illegitimate child to inherit from its natural father according to the laws of descent and distribution of Alabama. This being the case, other issues addressed by the parties in brief need not be addressed by us.

In Everage v. Gibson, 372 So.2d 829 (Ala. 1979), these categories are delineated thus-iy:

“To summarize, in order to claim the right to inherit from the intestate father’s estate, a child born out of wedlock may prove legitimation by the marriage of his parents plus a clear and unambiguous recognition of the child by the father. Or, such child may introduce a written, attested, and filed declaration of legitimation. Finally, the child may show a judicial determination of paternity made within two years of birth and during the father’s lifetime."

The complaint as amended makes the statement that plaintiffs are the natural children of Schuessler Woodyard born out of wedlock but does not show them to have become legitimate by either of the three required processes and thus eligible to inherit from their natural father. Cowart v. Wheeler, 378 So.2d 732 (Ala.1979).

The judgment is affirmed.

AFFIRMED.

FAULKNER, ALMON and BEATTY, JJ., concur.

TORBERT, C. J., concurs specially.

TORBERT, Chief Justice

(concurring specially).

The question presented is whether a complaint brought by the alleged illegitimate children of an intestate seeking a declaration of their rights in the intestate’s estate fails to state a cause of action where the complaint contains no allegation of legitimation. The test of the sufficiency of a complaint in a declaratory judgment proceeding is not whether the bill or complaint shows that the plaintiff will succeed in getting a declaration of rights in accordance with his theory or contention, but whether he is entitled to a declaration of rights at all. City of Mobile v. Gulf Development Company, 277 Ala. 431, 171 So.2d 247 (1965); Moore v. City of Fairhope, 275 Ala. 506, 156 So.2d 366 (1963); Robinson v. Robinson, 273 Ala. 192, 136 So.2d 889 (1962). Our case law has established the requirement that before an illegitimate child can seek a declaration of his rights in the intestate’s estate that child must prove his legitimation.

[I]n order to claim the right to inherit from the intestate father’s estate, a child born out of wedlock may prove legitimation by the marriage of his parents plus a clear and unambiguous recognition of the child by the father. Or, such child may introduce a written, attested, and filed declaration of legitimation. Finally, the child may show a judicial determination of paternity made within two years of birth and. during the father’s lifetime. [Emphasis omitted.]

Everage v. Gibson, 372 So.2d 829 (Ala.1979).

The complaint in the instant case lacked the requisite of an allegation of legitimation and therefore failed to state a cause of action. I recognize that notice pleading is the concept behind the Alabama Rules of Civil Procedure, as well as the Federal Rules of Civil Procedure, and that the rules do not require exhaustive pleading of facts.

[T]he Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is “a short and plain statement of the claim” that will give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests. . The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.

Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

In the instant case, legitimation was not a specific fact supporting the plaintiffs’ theory in their complaint; rather, it was an essential part of the theory. Therefore, I concur in the majority’s decision affirming the trial court’s order granting defendant’s 12(b)(6) motion.  