Julian's Estate, In re

Decision Date24 January 1959
Docket NumberNo. 41155,41155
Citation184 Kan. 94,334 P.2d 432
PartiesMatter of the ESTATE of Harry D. JULIAN, Deceased. Stanley JULIAN, Waive Bean, Arnold T. Julian, Janie Bush, Wilma Julian, Alice Marie Barker, Virginia Barstow and Milton E. Julian, Appellants, v. Shirley Patricia Julian ERICKSON, Appellee.
CourtKansas Supreme Court

Syllabus by the Court.

1. A general finding made by a trial court determines every controverted fact in support of which evidence was introduced, and a general finding raises a presumption that the trial court found all facts necessary to sustain and support the judgment.

2. A child born after parents have been divorced will be presumed to be legitimate where conception took place before the divorce decree was entered.

3. H and F were married on November 1, 1927, and lived together as husband and wife for twenty-three days. On November 29, 1927, F, the wife, sued H for divorce, and, among other things, alleged that H was the father of her unborn child. H answered by way of a general denial and cross-petitioned for a divorce, alleging, among other things, that at the time of their marriage F was pregnant by another man, such fact being unknown to H. Following a trial lasting several days, in which most of the evidence concerned the paternity of the unborn child, the court, on March 29, 1928, found 'for the plaintiff generally and against the defendant' and granted a divorce to F, the plaintiff. The decree made no mention of the unborn child and contained no provision for its support. No appeal was taken from the judgment and it became final. The child, S, was born on July 12, 1928. H subsequently remarried, was again divorced, and there were no children of that marriage. In January, 1957, H died intestate and a dispute arose between his collateral heirs and S as to who were his heirs-at-law.

In an appeal from a judgment finding that S was the daughter of H, born as the result of his marriage to F, and that, as such, S was his sole surviving heir-at-law, the record is examined and considered, and, as more fully set forth in the opinion, it is held: No error.

Robert R. Hasty, Wichita, argued the cause and was on the briefs for appellants.

Carl L. Buck, Wichita, argued the cause, and Ralph E. Gilchrist and Robert E. Lee Walker, Wichita, were with him on the briefs for appellee.

PRICE, Justice.

This appeal arises out of a dispute as to who are the heirs-at-law of Harry D. Julian, an intestate decedent.

From a judgment in favor of one found to be his daughter, his brothers and sisters and a niece have appealed.

The relevant facts and background of the matter are simple and can be stated briefly:

The story begins back on November 1, 1927, on which date Harry D. Julian (hereafter referred to as Harry) and Frances Letha Mustoe (hereafter referred to as Frances), residents of Wichita, were married. They lived together as husband and wife for 23 days, and on November 29, 1927, Frances filed suit for divorce in the district court of Sedgwick county charging Harry with extreme cruelty. He filed an answer in the form of a general denial.

On February 7, 1928, Frances filed an amended petition charging extreme cruelty and containing this allegation:

'Plaintiff further alleges and says that she expects to become a mother in the month of June or July, and the defendant is the father thereof.'

The prayer sought a decree of divorce, alimony, attorney fees and costs.

On February 10, 1928, Harry filed an answer (in the form of a general denial) and cross-petition in which he sought a decree of divorce on the ground of gross neglect of duty, and further charged:

'Defendant states that plaintiff, at the time of her marriage to him as aforesaid, was pregnant by another than this defendant, and defendant avers that he was ignorant of plaintiff's unchastity, and of her condition as aforesaid at the time of his said marriage to her.'

Frances filed a reply denying allegations of fault on her part, including the above-quoted allegation as to her pregnancy by another man.

Upon the issues thus joined the case came on for trial on March 19, 1928, with both parties present in court and by counsel. Evidence was introduced by both sides and the matter taken under advisement. The journal entry of judgment recites in part:

'On the 26th day of March 1928, the case was opened up and further evidence introduced by the respective parties, and the case taken under further advisement by the court. And again on the 28th day of March 1928, by the court's order the case was further opened up and additional evidence introduced. And on the 29th day of March 1928, the court being fully informed finds for the plaintiff generally and against the defendant. And all parties signifying their acquiescence in the judgment of the court:'

Accordingly, judgment was rendered granting a divorce to Frances and awarding her alimony, attorney fees and costs.

No appeal was taken from the judgment and it became final.

The decree made no mention of Frances' unborn child and contained no provision for its support--in other words, the decree was silent on the matter.

On July 12, 1928, Frances gave birth to her child, a girl, who was given the name Shirley Patricia Julian (hereafter referred to as Shirley). A birth certificate, filed July 25, 1928, listed her father as Harry David Julian and her mother's maiden name as Frances Letha Mustoe.

It does not appear that through the years Harry contributed to the support of Shirley or that any proceedings were instituted to compel him to do so. In the meantime Harry married again. That marriage also ended in divorce. No children were born of that marriage.

On January 14, 1957, Harry died intestate.

On the following day his brother, Stanley Julian, filed a petition for the appointment of an administrator, alleging that Harry's heirs-at-law consisted of two brothers, three sisters, one half-brother, one half-sister and one niece, being those persons whose names appear as appellants in this appeal and who, for convenience, will hereafter be referred to as petitioners.

Shortly thereafter Shirley filed a petition for the appointment of an administrator, alleging that she was the daughter of Harry and his only heir-at-law.

By appropriate pleadings, issues were joined between the parties, and, after a full hearing, the probate court found that Shirley was the daughter of Harry, allowed her petition, denied that of petitioners, and appointed Shirley's designee as administrator of Harry's estate.

From these adverse rulings petitioners appealed to the district court in which a trial de novo was had. The court had before it the files and transcript of the evidence of the 1928 divorce case between Frances and Harry, and, in addition, heard oral testimony.

Stanley...

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12 cases
  • Gross v. Vanlerberg
    • United States
    • Kansas Court of Appeals
    • 17 Diciembre 1981
    ... ... nor an action already instituted survives the death of the putative father, so no new proceeding can be instituted against the decedent's estate", and an existing action which has not reached judgment abates and cannot be continued against decedent's personal representative.\" ...       \xC2" ... ...
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  • JD v. MD
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    • Missouri Court of Appeals
    • 6 Abril 1970
    ... ... Rasco, Mo.App., 447 S.W.2d 10, 16; Schierenbeck v. Minor, 148 Colo. (banc) 582, 367 P.2d 333, 334(1); In re Julian's Estate, 184 Kan. 94, 334 P.2d 432, 436(3); Koch v. Miller, Ohio Prob., 87 Ohio Law Abst. 47, 178 N.E.2d 186, 187(3); State v. Bowman, 230 N.C. 203, 52 ... ...
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    • Maine Supreme Court
    • 1 Diciembre 1967
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