Burns v. Burns

• Decision Date: 21 November 1950
• Docket Number: No. 2460,2460
• Citation: 67 Wyo. 314,224 P.2d 178
• Parties: BURNS, v. BURNS et al.
• Court: Wyoming Supreme Court

Page 178

224 P.2d 178

67 Wyo. 314

BURNS, v. BURNS et al.

No. 2460.

Supreme Court of Wyoming.

Nov. 21, 1950.

Raper & Raper, of Sheridan, and John F. Raper, Sheridan, for plaintiff and appellant.

Jack Wolfe, of Sheridan, for defendants and respondents.

BLUME, Justice.

This is an action brought by Robert Horatio Burns, hereinafter called the plaintiff or appellant, against Clara D. Burns, surviving widow of Horatio Burns and his three daughters, namely, Nancy P. Brooks, Dorothy M. Burns and Ruth C. Hutton, in which he asks that he be allowed an equal share in the estate of the deceased with the three daughters.

The amended and supplemental petition alleges in substance as follows: Plaintiff is the son of Horatio Burns, deceased, who died on November 15, 1946 at Sheridan, Wyoming; that the deceased left a will, admitted to probate December 30, 1946. In that will deceased left to his wife Clara D. Burns, the North one-half (N 1/2) of the Southwest quarter (SW 1/4) and the South one-half (S 1/2) of the Northwest quarter (NW 1/4) of Section No. Eight (8) in Township No. Fifty-six (56) North of Range No. Eighty-three (83) West of the Sixth Principal Meridian. He left all the balance and remainder of his estate equally to the three daughters above mentioned. The estate of the deceased is in the course of administration and petition for distribution was filed on November 23, 1948. All of the estate will be distributed to the defendants unless the executrix, namely, the surviving widow of the estate is enjoined by the court. The estate should not be thus distributed for the reason that the plaintiff was not named in the last will and testament of the deceased, the plaintiff having been born on January 2, 1905 and not having been provided for in the will. Plaintiff is a pretermitted child of the deceased and is entitled to a share and share alike distribution along with the devisees and legatees named in the will. Notice of final settlement has been given notifying all parties interested that they should file objections thereto on the 3rd day of December, 1948. On December 1, 1948 plaintiff filed his objections to the distribution of the estate as mentioned in the petition for distribution and notice thereof. A motion was filed by the executrix of the estate to strike the objections from the files. Such motion to strike was sustained by the court. The action of the court was wrongful and erroneous for the reasons heretofore mentioned. The deceased left real estate (describing it) which was appraised at the sum of $24,891.30. (The specific land devised to the widow is not shown to be among the lands still owned by deceased.) He also left personal property appraised at $90,446.01. Plaintiff brings this action in equity to have his interest in the real property and the personal property determined as a pretermitted child. The deceased never executed a new will after the birth of the plaintiff because he believed that the plaintiff herein had a legal right to share in his estate along with his other children and it was the expressed intention of the deceased for the plaintiff to have an equal share of his estate with his other children.

Wherefore, plaintiff prays that the executrix of the estate be directed to pay over to the plaintiff a share of the estate of the deceased equal to that to be received by each of the daughters of the deceased, and that he be decreed the owner in fee simple of an undivided one-fourth interest in and to all real estate left by the deceased. A copy of the objections to final account and petition for distribution is attached.

On January 11, 1949, the defendants filed a demurrer to the amended and supplemental petition on the grounds: 1. That the court has no jurisdiction of the subject of the action. 2. That the said petition does not state facts sufficient to constitute a cause of action. 3. That it is apparent upon the face of plaintiff's amended and supplemental petition that the purported cause of action is barred by the limitations set forth in Section 6-408 and Section 6-414, Wyo.Comp.St.1945. 4. That any purported rights of pretermitted children are preterlegal in the State of Wyoming. On April 26, 1949 the court sustained the demurrer and the plaintiff not answering further, judgment was entered in favor of the defendants on the 20th day of June, 1949.

The demurrer admits the truth of the facts alleged in the amended and supplemental petition. 49 C.J. 434. Counsel for the defendants in his brief filed in this court as well as on oral argument (over the objection of appellant) attempted to interject into the case facts that do not appear in the amended and supplemental petition. These facts so attempted to be interjected into the case are not a part of the record before us and cannot, of course, be considered. If counsel wanted to have facts considered other than those alleged in the pleading of the plaintiff, he should not have filed a demurrer but should have filed an answer, and thus should have developed all of the facts which he wanted the appellate court to consider on appeal.

The question to be determined herein, is as to whether or not the plaintiff, as a pretermitted child, born after the execution of the will of the deceased, is, under the allegations of the amended and supplemental petition entitled to any share in the estate of the deceased. It has often been said that our ideas as to revocation of a will by reason of subsequent changes in family and domestic relations were derived from the Roman, or civil law, and we have been referred to that law by counsel for appellant as authority for their contention herein. So we have deemed it proper to set out that law somewhat more in detail than we ordinarily find in the decisions. And in view of the fact that the common law took into consideration and modern statutes take into consideration marriage as well as birth of subsequent children, it may not be amiss to consider both of these factors in the Roman law, in order to get a more complete perspective of the likeness or difference between that law and the common law and modern statutes in connection with the revocation or annulment of a will or testament by reason of changes as above mentioned.

And first, let us consider the matter of marriage in broad outline. There was no such rule in the Roman law that marriage alone, or marriage plus the birth of a child revoked a will. During all of the classical or post classical Roman law, when marriages were free--that is when the woman was not under the so-called domination (potestas) of her husband--the marriage of a man had no revocatory effect whatever on his testament insofar as the disposition of the property which was his was concerned. It was the custom for a woman who was to be married to bring to her husband a dowry, provided by herself, or her father or some other party, which should serve as part of a common fund to provide for the support of the family. During the time of the empire a custom arose, under the influence of the customary practice of the Orient, for the husband to give to the wife a prenuptial gift, equal in amount to the dowry brought by the wife. This gift was later allowed to be made even after marriage. Both the dowry and the prenuptial or postnuptial gift were under the control of the husband during the marriage, but became the absolute property of the wife upon the death of her husband. But that was all the right she had. She had no rights whatever in the separate property of her husband, whereas under the common law, she had at least the right of dower in the real estate of her husband. Buckland, Textbook of Roman Law (2d Ed.) 107-111, 19 C.J. 498, Sec. 116; 28 C.J.S., Dower, § 48. It was not until 537 A. D. that Justinian enacted a law providing for a wife who had brought no dowry to the marriage. By Novel (new law) 53, Chapter 6 he provided: 'The law is founded upon justice. We notice, however that some men have married women without a dowry, then die and the children inherit his property according to law. But the women who have been the legal wives till the death of the husband, receive nothing because neither a dowry nor a prenuptial gift was given, and hence live in extreme poverty. We therefore ordain that the wife shall be protected by the property left by the decedent and shall share therein with the children * * * she shall receive a fourth of his property whether there are many or few children. * * * To be sure, the provision as to the fourth part shall * * * equally apply to husbands * * *. We have made the provisions however only for cases where one or the other of the spouses, husband or wife, who gave neither dowry nor prenuptial gift are in want * * *. If the survivor should perchance be rich, it would not be just that he or she who gave no such dowry or prenuptial gift should be a burden on the children.' By Novel, 117 Chapter 5, enacted in 542 A. D. the fourth above mentioned was limited to 100 aurei, which apparently, under the gold standard of today, amounted to approximately $4,000.

And next as to pretermitted children. In McCullum v. McKenzie, 26 Iowa 510, it was said that 'the rule of the civil law was that the subsequent birth (of a child) was such a change in the domestic relations of the testator as to constitute an implied revocation' of his will. See also Negus v. Negus, 46 Iowa 487; Bloomer v. Bloomer, 2 Bradf., N.Y., 339. The statement is but a half-truth. There was no special rule applicable to after-born children. There was a general rule applicable to all children alike that a testator in order to exclude any children from benefit under his will--we do not here need to consider others--was required to disinherit them under the terms of the will. To pretermit them was fatal to the will. Thus Gaius, writing in the second half of the second century of our era states in II, Sec. 123, etc.: 'Again, he who has a son in power must take care either to appoint...