Sullivan's Estate, In re

• Decision Date: 21 February 1973
• Docket Number: 4144,Nos. 4090,s. 4090
• Citation: 506 P.2d 813
• Parties: In the Matter of the ESTATE of Lawrence T. SULLIVAN, Deceased. Wyeth B. SULLIVAN, sometimes known as Michael John Blake Sullivan and also as Michael J. Blake, Appellant (Petitioner below), v. John J. SULLIVAN, Individually and as executor of the Estate of Lawrence T. Sullivan, and Margaret Mary Sullivan Scott, Appellees (Respondents below). Michael Wyeth John BLAKE, Appellant (Plaintiff below), v. John J. SULLIVAN, Appellee (Defendant below).
• Court: Wyoming Supreme Court

Page 813

506 P.2d 813

In the Matter of the ESTATE of Lawrence T. SULLIVAN, Deceased.

Wyeth B. SULLIVAN, sometimes known as Michael John Blake Sullivan and also as Michael J. Blake, Appellant (Petitioner below), v. John J. SULLIVAN, Individually and as executor of the Estate of Lawrence T. Sullivan, and Margaret Mary Sullivan Scott, Appellees (Respondents below).

Michael Wyeth John BLAKE, Appellant (Plaintiff below), v. John J. SULLIVAN, Appellee (Defendant below).

Nos. 4090, 4144.

Supreme Court of Wyoming.

Feb. 21, 1973.

Rooney & Horiskey and John J. Rooney, Cheyenne, for appellant.

Harold M. Johnson, Rawlins, for appellee-Scott.

John A. MacPherson and T. Michael Golden of Brimmer, MacPherson & Golden, Rawlins, for appellee-Sullivan.

Before PARKER, C. J., and McEWAN, GUTHRIE, and McINTYRE, JJ.

Mr. Chief Justice PARKER delivered the opinion of the court.

Lawrence T. Sullivan, who died on March 11, 1961, left a will bequeathing $350 to appellant, a son adopted by Colorado decree, one-half of the balance of the estate to his wife, and the residue to deceased's three natural-born children, John J. Sullivan, Margaret Mary Sullivan Scott, and Cecilia Lorette Sullivan Connor, share and share alike. Deceased's wife and his natural daughter Cecilia had predeceased him. The estate proceeded in probate quite slowly and on January 9, 1965, the executor filed his 'First and Final Account with Petition for Distribution,' which showed, inter alia, the estate tax appraisal for 141 shares of Sullivan Company was $90,955.32. Decree approving the first and final accounting was filed March 30, 1966. The decree reflected that after the distribution of $350 to the appellant, Blake, the balance of the estate was to be distributed as follows: 15/36 to John J. Sullivan; 15/36 to Margaret Mary Sullivan Scott; 1/36 to John Edward Connor, son of Cecilia, deceased; 1/36 to Patricia Connor, another child of Cecilia, deceased; 1/36 to Lawrence Philip Connor, son of Cecilia, deceased; and 3/36 to appellant, Blake. The property to be distributed was $536.36 and 141 shares of the Sullivan Company corporate stock. The decree recited that it appeared 'to the satisfaction of the Court that notice of the hearing of said Final Account and Petition for Distribution has been given for the time and in the manner prescribed by law.' Appellant admittedly received a copy of the decree of distribution June 20, 1966.

On August 18, 1971, prior to the time that any distribution had been made, appellant filed a petition to determine distributive share, claiming that he had been disinherited by deceased's will. After various proceedings and hearings, the probate court entered an order on January 19, 1972, dismissing the petition. On February 8, 1972, appellant filed a complaint in the District Court of Carbon County seeking on various grounds to receive a 5/16 share of the estate. John J. Sullivan filed a motion to dismiss the complaint, which after hearing was granted. The two matters have been appealed and consolidated for hearing in this court.

Appellant's actions were predicated on Colorado law with the contention that an agreement made by an adoptive parent with the court not to disinherit an adopted child is lawful and enforceable. ¹ The Colorado decree of adoption in this instance, dated September 11, 1918, ordered the adoption after reciting that 'the Court being fully satisfied from the testimony submitted herein of the ability of the petitioners to properly rear, educate and maintain said child and their promise not to disinherit said child; which promise is one of the conditions of this decree.'

The Colorado statutes effective at that time in pertinent part read:

'* * * such (legally adopted) child shall be to all intents and purposes the child and legal heir of the person so adopting him or her, entitled to all the rights and privileges, and subject to all the obligations of a child of such person begotten in lawful wedlock * * *.' Section 529, chapter 24, R.S.Colo.1908.

'* * * a decree of adoption shall be rendered and entered by the Court declaring such (legally adopted) person the heir at law of the petitioner or petitioners and entitled to inherit from the petitioner or petitioners any or all property in all respects as if it had been petitioner's child born in holy wed-lock * * *.' Section 2, chapter 1, S.L. of Colorado, 1911.

Because of the dismissal on other grounds, this aspect was not decided by the trial court and is not fully argued here; this opinion does not purport to pass upon the validity of that point. It is, nevertheless, of interest that while ordinarily a validly acquired status of adopted child in another state will be recognized in the jurisdiction where the right of inheritance is involved, and the foreign adoption judgment or decree will be give effect subject to the conditions that the foreign court had jurisdiction to fix the status of the child with respect to adoptive parents, there is a serious question as to the application of this principle in instances where the foreign decree offends the laws or the public policy of the state where the right of inheritance is involved. In re Ray's Estate, 74 Wyo. 317, 287 P.2d 629, 636; 2 Am.Jur.2d Adoption §§ 114-116; 2 C.J.S. Adoption of Persons § 154.

It is the argument of appellant here that he was disinherited contrary to the provisions of the Colorado decree of adoption, that there had been misrepresentations and fraud as to the value of the estate, that statutes of limitation do not bar his recovery, and that laches by him do not exist. He specifically sets out that:

1. The complaint and petition do generally state a claim upon which relief can be granted.

2. He should not have been barred from his day in court by the statutes of limitation as a matter of law.

3. He should not have been barred from his day in court by laches as a matter of law.

4. Jurisdiction existed in either the probate court under the petition to determine distributive share or in equity court under the complaint to establish a constructive trust and set aside the decree of distribution and, further, the order dismissing the petition in the first probate case was not res judicata to the second equity case.

The crucial point of appellant's argument seems to be that he should not have been barred from his day in court by the statutes of limitation or laches. In discussing this he speaks of only three statutes of limitation having any possible application:

a. Section 1-333, W.S.1957, providing that proceedings to vacate or modify a judgment or order (under certain subdivisions of § 1-325, W.S.1957) must be commenced within three years;

b. Section 1-16, W.S.1957 (read in conjunction with § 1-15, W.S.1957), providing that a civil action upon a specialty or any contract, agreement, or promise in writing must be commenced within ten years; and

c. Section 1-18, W.S.1957, providing that actions for fraud must be brought within four years from the discovery of the fraud.

Appellant presents a timetable of the relevant events; however, the time element is immaterial since under all of his contentions the pleadings were filed after the statutes of limitation had run, unless, as argued, the order of distribution was void (1) for want of the court's jurisdiction emanating from a lack of notice of hearing on the final...