Burkhart v. Rogers

I do not agree with the conclusioh of law announced by the majority opinion herein, but in my judgment th'e question therein decided is not properly before us in this appeal, and I therefore base my dissent principally upon the fact that the opinion decides the case on a theory presented for the first time in this court, and is therefore in conflict with an unbroken line of decisions heretofore handed down by this court.

This proceeding involves a contest over the probate of the will of Rita Smith. The will was duly admitted to probate in the county court of Osage county, and appealed to the…