Gustafson v. Bowling

The opinion of the court was delivered by Wedell, J.: The appeals in cases No. 36,051 and No. 36,063 present the same general questions and have been consolidated by agreement of the parties. The principal question presented is whether an appeal may be taken by an opponent of a will from an order admitting a will to probate when the opponent had proper notice of the hearing for probate and made no objection thereto. The question arises out of the overruling of the separate demurrers of Willard J. Breidenthal, executor of the will of Ida E. Grindrod, deceased, and May Bowling, residuary legatee under the will. These demurrers were lodged against a pleading filed in the district court by Gala Gustafson, appellee here, the opponent of the will who was a half sister of the testatrix. The pleading was filed by Gala Gustafson, appellant in the district court, pursuant to an order of that court and was denominated, “Objections to the Probate of the Will.” The parties agree that pleading, among other things, alleged incapacity of the testatrix to make a will and was tantamount to what, prior to the new probate code, was known as a will contest action. The grounds of the demurrers were identical and, in substance, were: (1) The district court had no jurisdiction of the subject matter; (2) the pleading, “Objections to the Probate of the Will,” did not state facts sufficient to constitute a defense to the petition to admit the will to probate; and (3) that pleading did not state facts sufficient to constitute grounds for the contest of the will. Before treating the merits of appellants’ contentions that the trial court erred in overruling their demurrers, we are confronted with contention of appellee that the appeal to this court is not in time and should be dismissed. The contention is based upon the ground — 347 — the appellants in this court had filed motions in the district court to dismiss the appeal to that court which raised the same question of that court’s jurisdiction as was later raised by the demurrers. Appellee points out those motions were overruled and that no appeal has been taken from such rulings. Appellee argues that since the demurrers raised the same question which was determined by the order overruling the motions to dismiss and since no appeal was taken from the rulings on their motions, appellants cannot now appeal from the order overruling their demurrers. The contention is not good. The orders denying the motions to dismiss the appeal to the district court were not final orders and therefore were not appealable. (Montgomery Ward & Co. v. Ellis, 152 Kan. 320, 103 P. 2d 817, and cases therein cited.) Appellee’s contention is unsound for at least one other reason but it need not be treated. Appellants’ contentions that the district court erred in holding it had jurisdiction of the appeal are, in substance, as follows: (1) Appellee’s pleading first filed in the district court and denominated, “Objections to the Probate of the Will,” admittedly constitutes an attempt to contest the will. The probate court has exclusive original jurisdiction of such an action. (2) Appellee, a nonresident of this state, had not only notice of the hearing for probate by virtue of the required publication notice thereof, but had actual knowledge thereof; was in this state prior to the hearing for probate, and consulted counsel concerning the contents of the will and the hearing for probate. By failure to oppose the probate of the will appellee waived her right to object to its probate in the district court and is now estopped from doing so. (3) The contest of the will constitutes merely the means or method appellee has chosen to obtain her share of the decedent’s estate which she claims as an heir at law. (4) Every claim or demand against a decedent’s estate must be presented in the probate court unless the new probate code expressly permits it to be asserted by an action in the district court. The instant claim of appellee as an heir at law is not one of the latter class. (5) The claim of appellee is barred for the reason it was never asserted in the probate court and was not asserted in the district court within nine months from the date of the first publication notice to creditors. (6) If the instant appeal to the district court lies without first objecting to the probate of the will in the probate court, the attempted appeal is not valid for the reason it was not, in fact, taken by appellee. — 348 — In support of appellee’s contention an appeal may be taken from an order admitting a will to probate although no objection to its probate was made in the probate court, she relies upon pertinent provisions of G. S. 1943 Supp. 59-2401, which provide: “An appeal to the district court may be taken from any of the following orders, judgments, decrees, and decisions of the probate court: “(1) An order admitting, or refusing to admit, a will to probate. “(21) A final decision of any matter arising under the jurisdiction of the probate court.” Appellee relies also upon G. S. 1943 Supp. 59-2404, which reads: “Such appeal may be taken by any person aggrieved within thirty days after the making of such order, judgment, decree, or decision: Provided, That' an appeal may be taken within nine months from an order admitting, or refusing to admit, a will to probate.” Appellee contends the particular question presented in this case has not been definitely ruled upon by this court under the provisions of the new probate code but she thinks the opinion In re Estate of Reed, 157 Kan. 602, 142 P. 2d 824, is instructive. It is true the precise question of appeal has not been determined under the provisions of the new code. We, however, do not believe the opinion in the Reed case throws much, if any, light upon the question now before us. A careful reading of that opinion will disclose the precise point now presented was not raised or decided in that case. Appellee further contends the proposition of law involving the right of appeal is settled in this state by reason of the construction this court has placed upon a similar statute. She refers to G. S. 1935, 61-1010, pertaining to appeals from justice of the peace courts, which reads: “An appeal may be taken from the final judgment of a justice of the peace in any case except in cases hereinafter stated, in which no appeal shall be allowed: First, on judgments rendered on confession; second, in jury trials where neither party claims in his bill of particulars a sum exceeding twenty dollars.” Appellee stresses the fact that in determining the question of the right of appeal under that statute this court might have followed the construction adopted by the Supreme Court of Nebraska, which denied the right of appeal from a default judgment under a similar justice of the peace court statute, but that this court refused to do so and followed the construction placed upon similar statutes by the courts of Iowa, Indiana and California which held there was an — 349 — appeal from a default judgment rendered by a justice of the peace. (L. T. & S. W. Rly. Co. v. Forbes, 37 Kan. 445, 452, 15 Pac. 595.) The decision in that case was followed in Powers v. Schultz, 127 Kan. 598, 274 Pac. 735. In the Powers case this court said: “It is needless, however, to discuss the effect of a judgment by default since the statute does not prohibit appeals from such judgments. As the judgment involved was not a judgment by confession the defendants were entitled to appeal from it, and therefore the district court did not err in its refusal to dismiss the appeal taken from the judgment.” (p. 600.) Appellee points out that the appeal provisions of the probate code do not restrict appeals to cases in which the petition for probate was opposed in the probate court. It is true those particular statutes are not expressly so restricted. But is that fact in itself conclusive on the precise question before us? We do not think so. The precise question now presented is whether under the new code the legislature intended the appeal statutes should be so construed as to permit a will contest action to be tried originally in the district court. If appellee’s contention is sustained that is the court in which grounds for contest of a will may be asserted for the first time and the contest action originally tried. This is true for the simple reason that under the new code actions on appeal to the district court are tried de novo. That is, on appeal they are tried in the district court just as though that court would have had original jurisdiction to try a will contest action. (G. S. 1943 Supp. 59-2408; Foss v. Wiles, 155 Kan. 262, 124 P. 2d 438.) The question at issue is not whether it would be wise to permit defenses to a will or objections to its probate to be made originally in the district court. The solution of that question was solely a legislative prerogative and we have held the legislature exercised that prerogative by denying such jurisdiction to the district court. The former statute, G. S. 1935, 22-223, which authorized the bringing of a civil action in the district court to contest a will was repealed by the new code. (Laws 1939, ch. 180.) In Foss v. Wiles, supra, we held: “Under the Kansas probate code, effective July 1, 1939, the probate court in which a will has been probated has exclusive original jurisdiction to entertain a proceeding to contest the will.” (Syl. ¶ 6.) In Yeager v. Yeager, 155 Kan. 734, 129 P. 2d 242, an action was brought in the district court to impress lands with a trust which was in derogation of the terms of the will. We adhered to the old estab — 350 — lished rule on the subject of what constituted a contest of a will and held: “An action brought for the purpose of getting rid of a will, or of defeating the testator’s intent as therein expressed, or of rendering nugatory the provisions of the will is an action to ‘contest’ the' will and may only be brought in conformity with the statutes applicable to the contest of wills.” (Syl. ¶ 1.) In the course of the opinion in the Yeager case we said: “Did the district court have original jurisdiction to entertain the instant action, which was, in effect, an action to contest a will? That question was squarely determined in the negative in the recent case of Foss v. Wiles, 155 Kan. 262, 124 P. 2d 438. It was there held that under the present probate code' which became effective July 1, 1939, the probate court in which a will is offered for probate has exclusive original jurisdiction to entertain a proceeding to contest the will. The question was fully discussed in the opinion in that case and need not be discussed here. District courts now have jurisdiction in such matters only upon appeal.” (p. 735.) Manifestly in the instant case the district court would not be entertaining appellate jurisdiction of a will contest action when there had been no contest of the will or objections to its probate in the probate court. To now hold that the appeal statutes should be so construed as to enable the opponent of a will to contest it for .the first time in the district court, clearly would be wholly inconsistent with our previous decisions upon the subject. To now hold that an appeal lies to the district court, under the circumstances in the instant case, would result in permitting appellee to do by indirection what she is prohibited from doing directly. Such a decision would nullify the legislative intent by reinstating precisely what the lawmakers deliberately repealed. We do not believe we are justified in considering the appeal statutes entirely by themselves, as appellee does, and by so doing place upon them a construction out of harmony with other provisions of the probate code and one which obviously defeats the clear legislative purpose to grant to probate courts the exclusive original jurisdiction in will contest actions. The opinion on this phase of the lawsuit might well end here. A mere glance, however, at other provisions of the new code and our former decisions lends support to the view the lawmakers must have intended probate courts should have exclusive original jurisdiction over any sort of action designed to defeat a will. Analysis of the new code discloses the legislature made no provision whatsoever for a so-called “will contest action” in the district court or in the probate court. The new code nowhere mentions a “will contest action” — 351 — as such. Of course, that does not mean a will cannot be opposed or contested. It simply means We are required to look further to ascertain the legislative intent as to how and where opposition to a will must first be expressed. The legislature expressly provided an opportunity for opposing a will upon any ground at the hearing of a petition for probate. G. S. 1943 Supp. 59-2224, being the section pertaining to such hearing, in part provides, “Any heir, devisee, or legatee may prosecute or oppose the probate of any will.” G. S. 1943 Supp. 59-2222 requires the probate court to fix the time and place of such hearing and directs that notice thereof be given pursuant to the provisions of G. S. 1943 Supp. 59-2209, unless the court shall make an order to the contrary, etc. No order to the contrary was made in the instant case. G. S. 1943 Supp. 59-2210 prescribes the form of notice to be given when the court does not make a contrary order or the notice is not waived. The notice prescribed requires the person notified to file his written defenses to the petition for probate on 'or before the day indicated in the notice and further provides that on failure to make such defenses, “. . . judgment and decree will be entered in due course upon said petition.” Under the new code every probate proceeding, including the exhibition and allowance of demands against an estate, was made an adversary proceeding while in many instances under the old code it was merely ex parte. (Egnatic v. Wollard, 156 Kan. 843, 854, 137 P. 2d 188; In re Estate of Reed, 157 Kan. 602, 612, 142 P. 2d 824.) From these various statutes and our decisions it clearly appears the legislature intended objections to a will, whatever the nature or character of the objections might be, should be asserted originally in the probate court. This statement, however, must not be interpreted to mean that on proper appeal to the district court from a contested order admitting a will to probate or from a probate court judgment in a will contest action that the action on appeal is not to be tried de novo in the district court. The statute provides it may be so tried on appeal. (G. S. 1943 Supp. 59-2408.) From what has been said it is clear the hearing for probate was intended to be at least one. of the occasions for asserting opposition to a Will in the probate court. In the instant case the will was not challenged in the probate court at any time or in any manner and that, we think, is fatal to the attempted appeal. In this case we therefore need not decide whether the hearing for probate presents the only opportunity for opposing a will in the probate court and — 352 — for obtaining a ruling on such opposition prior to the time allowed for appeal to the district court. There is another reason for believing the legislature intended opposition to a will should be asserted in the probate court. Lawyers and judges well understand that evidence of incapacity of a testator or evidence of undue influence in the making of a will may not always be discovered until after a will has been probated. The legislature was not unmindful of that fact. It supplied a remedy for such and other contingencies by providing a right to vacate or modify probate court orders, judgments and decrees in the probate court. G. S. 1943 Supp. 59-2213 reads: “No judgment or decree shall be rendered in a probate proceeding without proof. The court shall have control of its orders, judgments, and decrees for thirty days after the date of the rendition thereof. Thereafter such orders, judgments and decrees may be vacated or modified as provided by section 605 [See G. S. 1935, 60-3016.] of the code of civil procedure.” Here again we need not determine in the instant case whether G. S. 1943 Supp. 59-2213, provides the exclusive remedy in the probate court for vacating or modifying an order of probate. The statute is cited here only for the purpose of emphasizing the legislative intent with respect to the original jurisdiction of the probate court on the subject under consideration. We think it was intended applicable remedies provided in the probate court to an opponent of a will should be exhausted in that court prior to the perfecting of an appeal to the district court. It readily may be conceded there are decisions from other jurisdictions based solely on the construction of appeal statutes similar to our own which decisions on the surface appear to be contrary to the views herein stated. In the absence, however, of the legislative history of the probate law in such states and their decisions interpreting other pertinent provisions of their codes, such decisions cannot be very helpful on the precise question now before us. We would have little or no trouble agreeing with the construction placed by appellee upon our appeal statutes if they could be construed independently and without regard to the obvious intent disclosed by other pertinent provisions of the new1 code and without regard to our former decisions on the subject of the probate court’s exclusive original jurisdiction. The difficulty with appellee’s contention, as previously stated, is that the true legislative intent with respect to our appeal statutes cannot be ascertained by considering the appeal statutes by themselves. — 353 — It also may be stated that our own decisions rendered prior to the adoption of the new code are not helpful in this case. That includes In re Perkins, 145 Kan. 611, 66 P. 2d 420, decided prior to the adoption of the new code. At that time we had no statute requiring the filing of written defenses to a petition for probate in the probate court. The hearing in the probate court at that time could be but was not required to be an adversary proceeding as it is now and the probate court did not then have exclusive original jurisdiction of will contest actions. This brings us to appellants’ second point urged under the first ground of their demurrers. Is the will contest action an attempt to compel the probate court to distribute the decedent’s estate contrary to the terms of the will? Is that action by appellee as an heir at law tantamount to a claim or demand for a distributive share of the decedent’s estate? If it is, must such a claim or demand be asserted in the probate court? We think these questions must be answered in the affirmative. It is conceded the probate court has exclusive original jurisdiction to determine who are devisees and heirs at law and to determine the share of the estate to which they are entitled. It is conceded the district court has only appellate jurisdiction over questions pertaining to the distribution of an estate. An action which challenges the validity of a probated will to pass title to property belonging to a decedent’s estate to persons named in the will and in which title to any portion of the estate is claimed by the plaintiff can be brought only in the probate court, and district courts now have only appellate jurisdiction over that matter. (Foss v. Wiles, supra; Yeager v. Yeager, supra.) It is conceded appellee is a half sister of the testatrix and that appellee has been entirely ignored by the terms of the will. If her allegations with respect to the incapacity of the testatrix to make the will and the averments of undue influence in the execution of the will should be established on the trial of the action, the will would be invalid and, of course, could not stand. The result would be appellee would be entitled to receive a distributive share of the decedent’s estate under the law of descents and distributions. Manifestly that result would be contrary to the terms of the will. The sole purpose of prosecuting the will contest action was to set aside the will and thereby establish appellee’s right to a portion of the estate as an heir at law. The will contest action is merely the means, vehicle or form of action chosen to accomplish that specific purpose. To — 354 — say that appellee is not now, in substance and in reality, attempting to establish her right or claim to a portion of the decedent’s estate as an heir at law would require us to 'completely ignore the obvious purpose and intent of her present action. A majority of this court has no hesitancy in saying her action is tantamount to the assertion of a claim or demand against the decedent’s estate which under the new code must be asserted in the probate court. (Foss v. Wiles, supra; Yeager v. Yeager, supra; Erwin v. Erwin, 153 Kan. 703, 708, 113 P. 2d 349; Egnatic v. Wollard, 156 Kan. 843, 854, 137 P. 2d 188; Shively v. Burr, 157 Kan. 336, 342, 139 P. 2d 401; Burns v. Drake, 157 Kan. 367, 371, 139 P. 2d 386.) There can be no question about the fact that in each of the first four cases and the Burns' case just cited the plaintiff was asserting a right to a portion of the decedent’s estate. The causes of action there alleged were not the ordinary claim or demand of a creditor and we held the actions must be brought in the probate court. G. S. 1943 Supp. 59-2239, provides: “All demands, including demands of the state, against a decedent’s estate, whether due or to become due, whether absolute or contingent . . . not exhibited as required by this act within nine months after the date of the first published notice to creditors as herein provided, shall be forever barred from payment. . . .” (Emphasis supplied.) In the Burns’ case we said: “. . . the legislature intended the term ‘demands’ as here used to be all-inclusive — to include all demands against the estate, whether legal or equitable in character, except in particular cases where the statute may expressly provide otherwise.” (p. 371.) G. S. 1943 Supp. 59-2241, provides for a hearing on and determination of contingent claims by the probate court. It will be observed G. S. 1943 Supp. 59-2239, does not exclude claims or demands of an heir at law or claims which arise by operation of the law of descents and distributions. On the subject of the necessity for the filing of a claim in the probate court by one who claims all or any part- of a decedent’s estate under the law of intestate succession see Egnatic v. Wollard, supra, p. 856; Shively v. Burr, supra, p. 340. The statute says, “all demands.” It expressly includes contingent demands. In 2 Bartlett’s Kansas Probate Law and Practice, p. 411, it is said: “A contingent claim is one where the liability depends upon some future event, which may or may not happen, and therefore makes it wholly uncertain whether there ever will be a liability.” — 355 — The validity of appellee’s claim or demand to a portion of the decedent’s estate is contingent only upon the successful termination of the will contest action which she is presently prosecuting as an heir at law. The probate court must be advised of contingent claims as well as absolute claims in order to properly make partial or final orders of distribution. The provisions of G. S. 1943 Supp. 59-2252, throw further light upon the fact the legislature intended all questions involving the distribution of an estate should be asserted in the probate court. If there ever was any question whether a contingent claim, that is, a claim for which liability had not yet' been established and might never be established, is required to be asserted originally in the probate court that question was definitely put to rest in the case of Shively v. Burr, supra. In that case we held a civil action for damages under our wrongful death statute against the administrator of an estate constituted a claim or demand against the estate of the deceased wrongdoer which must be presented in the probate court. In the specially concurring opinion of Mr. Justice Harvey, it was stated: “I think it important, not only to the courts but to the personal representatives of decedents’ estates, to those having claims or demands of any character against such estates, and to heirs of the decedent or beneficiaries under his will, to have it known definitely that anyone who has any type of claim or demand against the decedent should present the same to the probate court in which his estate is being administered.” (p. 342.) (Italics ours.) See, also, other specially concurring opinions in the Shively case. In view of the provisions of the new code and our previous decisions a majority of this court has no hesitancy in stating that appellee’s action is a type of claim or demand against the decedent’s estate which must be asserted originally in the probate court. Having decided the district court was without jurisdiction to entertain the appeal, it is unnecessary to treat other contentions made by appellants. The judgment of the district court is reversed with directions to sustain appellants’ demurrers and to dismiss the appeal to the district court.