In Re the Estate of Barnes

512 P.2d 387, 212 Kan. 502, 1973 Kan. LEXIS 548

• Court: Supreme Court of Kansas
• Decided: July 14, 1973
• Docket: 46,712
• Status: Published

Opinions

The opinion of the court was delivered by

Harman, C.:

This is an appeal by certain heirs at law from an order admitting a will to probate. The issue is whether procedural shortcomings, particularly deficient fisting of heirs and service of notice of hearing, deprived the probate court and, upon appeal, the district court of jurisdiction to order such probate.

The parties have stipulated to the facts presented in the record on appeal.

Willis B. Barnes, a resident of Trego county, aged about seventy-seven years, died testate February 23, 1970. He left surviving him as his heirs at law two brothers, Elmer Barnes and Frank Barnes, and nine nephews and nieces, John Barnes, Lucille Syme, Helen Jessee, Flora Poulson, Lee Barnes, Wade Barnes, Edward Teeters, Harold Teeters and Raymond Teeters.

In his will, executed twelve days before his death, Willis B. Barnes disinherited all his heirs and left everything to two persons living in Ellis, Kansas, to whom he was not related.

On March 23, 1970, an Ellis county banker, who was named executor in the will, filed in the Trego county probate court a petition for the wills admission to probate. This petition named the two persons who were the legatees and devisees under the will but it fisted as heirs at law of the decedent only his two brothers, Elmer Barnes, a resident of Longmont, Colorado, and Frank Barnes a resident of Delta, Colorado, and his nephew, John Barnes, a resident of Craig, Colorado. The petition made no mention of decedent’s remaining eight nieces and nephews.

The probate court made an order fixing April 20, 1970, as the date for hearing the petition and directed that notice of the tirnp. and place of the hearing be given pursuant to K. S. A. 59-2209, as amended. Thereafter a notice of such hearing was duly published in a Trego county newspaper.

The petitioner’s attorney (who later became and remains attorney for the executor) then filed an affidavit of mailing which stated that on March 27, 1970, he mailed a copy of the notice to both legatees and devisees and to the decedent’s two brothers, Elmer and Frank Barnes. The affidavit also stated that on April 3, 1970, he became aware of Lucille Syme, a resident of Oakland, California, who was a child of a predeceased sister of the decedent, and he did on that date mail a notice to her, and on April 17, 1970, he became aware of of Helen Jessee, a resident of Tucson, Arizona, another such child, and on that date he mailed her a copy of the notice. The affidavit further stated these four were the only heirs whose names were known to affiant or to the petitioner. Noteworthy is the fact the affidavit of mailing made no mention of mailing to John' Barnes, who was listed in the petition as an heir at law and nephew of the decedent, nor was mention made of decedent’s remaining six nephews: and nieces:.

The probate court admitted the will to probate April 20, 1970, and named the petitioner, James M. Bailey, as executor.

Thereafter, first in May, 1970, and later in July, 1970, the attorney for tire executor mailed to Elmer and Frank Barnes and to the two nieces last mentioned notices of hearings in the probate court on petitions in the estate to allow a demand and for authority to sell personal property. The affidavits of mailing omitted mention of John Barnes and the missing six nephews and nieces.

On December 28, 1970, one brother, Elmer Barnes, and one nephew, John Barnes, filed their notice of appeal to the district court from the order admitting the will to probate. Elmer and John later filed in district court an answer in which they alleged the following:

“(1) That the Probate Court of Trego County, Kansas had no jurisdiction to admit said Will to Probate on April 20, 1970, for the reason that petitioner did not comply with the provisions of K. S. A. 59-2209 in the following particulars:

“a. Said Petitioner made no diligent effort to secure the names of heirs of Willis B. Barnes, deceased, who would inherit under the laws of descent and distribution and failing to list the same in said Petition for Probate of Will; that such names could have been easily ascertained by proper inquiry.

“b. Petitioner failed to mail Notice of Hearing on Petition for Probate of Will to Appellant, John Barnes, although his name was listed as an heir on said Petition for Probate of Will.

“c. That mailings of Notice of Hearing on Petition for Probate of Will to Mrs. Lucille Syme and Mrs. Helen Jessee, all as shown by Affidavit of mailing, copy of which is attached hereto as a part hereof, were insufficient to establish jurisdiction in the Probate Court.

“d. No Notice of Hearing on Petition for Probate of Will was given Flora Paulson, Lee Barnes, or Wade Barnes, children of John Barnes, predeceased brother of decedent or to Edward Teeters, Harold Teeters or Raymond Teeters, children of Carie E. Teeters, predeceased sister of decedent.”

The executor then filed in district court a pleading in which he alleged that both he and his attorney had made diligent effort to secure the names and addresses of the hens at law of Willis B. Bames but that Elmer Bames, John Bames and other interested heirs at law had refused to furnish information and it had been impossible to determine such names and addresses without the cooperation of Elmer, John and other heirs to whom inquiry had been made; that notice of the hearing on the petition to probate the will in fact was given to John Bames in accord with K. S. A. 59-2209, as amended, and the affidavit of mailing previously filed was in error to that extent; that notice of hearing on the petition to probate was given to Lucille Syme and Helen Jessee immediately upon petitioner’s discovery that they were heirs at law. The pleading further admitted no notice was given to the remaining six nephews and nieces but this was alleged to be due to the fault of Elmer and John and other interested (but unnamed) heirs at law.

Elmer and John then sought summary judgment in their favor on the ground the probate court’s order admitting the will to probate was void for lack of jurisdiction due to want of notice in compliance with 59-2209. The trial court denied this motion. In doing so it took cognizance of the pleading filed by the executor in which he asserted a copy of the notice of the hearing in probate court on the petition to probate the will had in fact been mailed to John, under which assertion, the court noted, the filing by the executor of an amended affidavit of mailing stating the fact as to John would be sufficient even upon hearing in the district court but that his was not necessary inasmuch as the hearing in district court was trial de novo invoked at the request of Elmer and John.

Later, and prior to trial, Elmer and John filed a motion to vacate the order denying summary judgment to which were attached certain affidavits: Elmer’s affidavit denying that any request for information was ever made to him; one by John denying he had ever received any kind of notice by mail or otherwise from the executor or his attorney; an affidavit of a former neighbor to the decedent naming several persons in Trego county who could have given information as to the names and addresses of the decedent’s heirs, including the agricultural tenants on decedent’s real estate. This motion was denied and the parties then entered into the following agreement:

“STIPULATION

“The parties stipulate that at the trial of this matter the appellee will present the same evidence as was previously submitted to the Trego County Probate Court on April 20, 1970, and as is more fully recited in the affidavits of proof of will executed by witnesses Dorothy Kippes, John H. Rupp and Alma Kelly, same being made a part hereof by reference.

“The appellants will stand on the jurisdictional question and without waiving any of their rights to appeal on said question or otherwise, will present no evidence at said trial.

“There will be no further evidentiary matters presented at said trial, and the parties hereby submit the matter for the decision of the court.”

Upon this submission the trial court found the proffered will was valid in all respects and admitted it to probate. Additionally the trial court affirmed and approved all orders previously entered in the proceeding by the probate court. Thereupon Elmer and John perfected an appeal to this court.

Appellants present three grounds for reversal: (1) The probate court lacked jurisdiction to admit the will to probate because of procedural defects; (2) for the same reasons the district court in ton had no jurisdiction; and (3) the court erred in holding that K. S. A. 59-2209, as amended, does not require mailing to a party in order to obtain jurisdiction for the purpose of admitting a will to probate, or, in the alternative, if such statute does not so provide, the court erred in holding that it does not violate rights of appellants under the federal and state constitutions.

Appellants advance two bases for their contention the probate court lacked jurisdiction to admit the will toi probate. First, they assert failure to list all of the decedent’s heirs at law in the petition to probate the will deprived the court of jurisdiction to act. The contention is without merit. Under the provisions of K. S. A. 1972 Supp. 59-2203 the primary jurisdictional facts empowering a probate court to order probate of a decedent’s will are either that the decedent was a resident of the particular county at the time of his death or that he left an estate within the county to be administered. Under the stipulated facts here Willis B. Barnes died a resident of Trego county, owning an estate in that county, and the probate court clearly had jurisdiction of the subject matter of the proceeding. K. S. A. 1972 Supp. 59-2220 states that a petition for the probate of a will shall satisfy the statutory requirements of a petition for administration. K. S. A. 59-2219 provides that a petition for administration shall state the “names, ages, residences, and addresses of the heirs of the decedent so far as known or can with reasonable diligence be ascertained”. The question of the effect of failure to list heirs in a petition for administration is commented upon in 3 Bartlett’s Kansas Probate Law and Practice, rev. ed., § 1223, as follows:

“Since the proceedings for the appointment of an administrator are adversary and not ex parte, it should be stressed that care should be exercised in ascertaining the names and whereabouts of the heirs of the decedent and the inclusion of their names and addresses in the petition in order that proper notice may be given them of the time and place of the hearing. But when such matters are not known, they cannot and need not be set forth. And it has been held that the requirement as to names, residences, and addresses of the heirs, devisees, and legatees is directory only, and not jurisdictional. If a petition in regular form is filed, stating correctly the name of the decedent, the court has jurisdiction even though the persons named as heirs are not in fact heirs.” (pp. 69-70.)

The statutory provision for stating the names, etc., of heirs of a decedent in a petition to probate a will by its very terms contemplates no more than a listing of hens whose names, ages and whereabouts are known to die petitioner or by the exercise of reasonable diligence should have been known to him. Consequently the jurisdiction of a probate court to act upon a petition to probate a will does not depend upon whether or not all heirs are named in the petition.

Here the petition listed as heirs at law the decedent’s two brothers, Elmer and Frank Barnes, and his nephew, John Barnes. It was valid upon its face and conformed in all respects to statutory requirement. Cognizance may be taken of an initial showing on behalf of the executor of diligent inquiry to ascertain the names of all hens. Failure to list all persons who were in fact heirs of the decedent, standing alone, did not deprive the probate court of its power to admit the will to probate.

Second, appellants contend the probate court lacked jurisdiction to probate the will because not all the heirs were notified of the hearing on the petition to admit it. Concededly, six nephews and nieces were not notified of the hearing (the record before us does not reveal their places of residence or addresses).

K. S. A. 59-2222provides:

“When a petition for the probate of a will ... is filed, the court shall fix the time and place for the hearing thereof, notice of which shall be given pursuant to [59-2209] unless the court shall make an order to the contrary. . . .”

K. S. A. 1972 Supp. 59-2209 calls for notice to be published once a week for three consecutive weeks in a county newspaper and further that,

. . within seven (7) days after first published notice the petitioner shall mail or cause to be mailed a copy of the notice to each heir . . . whose name and address are known to him. . . .”

Here again our statutory scheme indicates that the term “known” as used in 59-2209 must be understood to mean an heir known to the petitioner or an hen who by the exercise of due diligence should have been known to him. In Carter v. Zahn, 37 F. R. D. 556 (DC, Kan., 1965) in a somewhat analogous situation it was held that the term “known” used in a Kansas tolling statute provided that time of absence of a defendant from the state shah not be computed as any part of the period within which action must be brought but that such section shall not apply to extend the period of limitation as to any defendants whose whereabouts are known, means known to plaintiff or by the exercise of due diligence should have been known to plaintiff.

In 3 Rartlett’s, supra, § 1230, this discussion on the effect of failure to give notice to certain persons appears:

“In testate estates, the heirs, devisees, and legatees are likewise interested parties and are entitled to notice, unless waived by them. But the notice need be given only to the persons required by statute to be notified, that is, to the heirs, devisees, and legatees of the decedent.

“However, the heirs, devisees, and legatees of a decedent are not judicially determined until the final settlement of the estate; and only reasonable diligence is required to ascertain the heirs, devisees, and legatees, at the commencement of the proceeding, for the purpose of giving notice to them. An analysis of the code provisions supports this view. These provisions are: (1) the petition shall state the names and addresses of the heirs, devisees and legatees of the decedent so far as known or can with reasonable diligence be ascertained; (2) notice, unless otherwise directed by the court, shall be given by publication of all persons concerned, and by mailing to each heir, devisee, and legatee whose name and address are known to the petitioner. The word “known’ as used in the statute means known to the petitioner after the exercise of reasonable diligence.

“In a well reasoned opinion it was said: ‘The jurisdiction of the court over the subject-matter is provided for by the statute requiring that when a petition is filed it shall contain the names of the heirs at law, devisees and legatees. The act places on the petitioner the duty of naming all the heirs at law of the deceased, but so say that it requires him' to name heirs at law of whose existence he knows nothing and of which he upon diligent inquiry cannot learn would be to require that the petitioner do the impossible. Where it is shown that the petitioner diligently and in good faith has endeavored to learn the names and addresses of all of the heirs at law of the deceased, fh.e court before whom the petition, is filed has no way of 'knowing, except on the hearing thereof, that there exists heirs at law who have not been made parties, and, it appearing to the court that all had been made parties the statute places on the court the imperative duty to proceed to a hearing on the petition, and for that purpose confers on the court jurisdiction of the subject-matter and of the parties notified. To hold otherwise would be to say that, because an- unknown heir at law might possibly appear, the court cannot take jurisdiction of the subject-matter in any case without notice to unknown heirs. Such a procedure is not provided for or contemplated by the act except in cases where the petition states that there are unknown heirs. Such a rule would require notice by publication in every case, in spite of the fact that the petition and proof showed there were no unknown heirs at law. To say that, notwithstanding good faith and diligence on the part of the petitioner and proof before the court, all of the heirs at law had been made parties to the petition, an heir not made a party may, years afterwards, set aside the entire probate of the will on the ground that the court had no jurisdiction whatever to probate the will, would be to announce a rule which would result in unsettling estates and destroying titles years after the probate of wills and the closing of estates. Such, we believe, could not have been the contemplation or intention of the legislature.’

“If the statutory requirements relating to notice are complied with in good faith, it appears that any decree or order based upon such notice is not subject to attack for failure to mail notice to some heir or benefioiary who was unknown to the petitioner at the time of the proceedings. The notice by publication as prescribed by statute is constructive notice to all persons interested. It is said that ‘unless the necessary parties in such cases could be brought before the court by publication, there would be in many cases an impossibility of doing it at all.’” (pp. 75-77.)

(See also further discussion contained in section, 1233 of the same work.)

No contention is made that the notice was not properly published. A showing of good faith efforts at ascertaining heirs has already been noted. Excepting for the moment the alleged failure to mail notice to John, an affidavit revealed mailing of notice to those heirs known- after the exercise of reasonable diligence and this proof of service was duly approved by the probate court. All statutory requirements respecting notice appear to have been met. Hence we hold that failure to mail copy of the published notice of hearing of the petition to probate court to an heir who, after the exercise of due diligence, was unknown to the petitioner did not deprive the probate court of jurisdiction to hear the petition.

Appellant John Barnes was listed as an heir in the petition but the affidavit of mailing did not state a copy was mailed to him. Appellee later asserted the affiidavit was in error in that he had in fact mailed notice to John. John in turn disputed this later assertion. We think any irregularity falls within the purview of K. S. A. 59-2211 which in pertinent part provides:

“No defect in any notice nor in the service thereof, not affecting the substantial rights of the parties, shall invalidate any proceedings after such notice and the proof of service thereof shall have been approved by the court.”

John has made no showing anywhere along the line of prejudice to his substantial rights.

Appellants’ second contention — that the district court had no jurisdiction to admit the will to probate — is premised solely on their assertion the probate court was without such jurisdiction. They cite and rely on In re Estate of Crump, 161 Kan. 154, 166 P. 2d 684, in which this court held that inasmuch as a probate court had no jurisdiction to anuí a marriage, upon an appeal from such a judgment in probate court a district court acquired no jurisdiction of such an action. That is not comparable to our situation here where, upon the showing made in the probate court, we have upheld that court’s power to act and there is no consequent want of district court authority to act for the reason asserted. This, however, is not the end of the matter in view of the shoddy practice revealed after the case got to the district court, which cannot be upheld.

As indicated Elmer and John Barnes filed an answer in district corut setting out procedural defects. They alleged due diligence had not been used to obtain the names of the decedent’s heirs and they specifically pointed out six named nephews and nieces, who were heirs at law, to whom notice of hearing on the petition for probate of the will had not been given. These heirs are parties interested in the probate of the decendent’s will, their position must be treated as adverse to the admission to probate of such will, yet their existence was ignored in the district court proceedings and no notice has ever been given them nor has any such effort been made.

As already indicated in the quotation from Bartlett, supra, proceedings of this character are adversary in nature and care must be exercised in ascertaining the names and whereabouts of heirs so that proper notice may be given them respecting the proceedings. Beyond this, we have firmly held in Pierce v. Board of County Commissioners, 200 Kan. 74, 434 P. 2d 858, and in Chapin v. Aylward, 204 Kan. 448, 464 P. 2d 177, that the requirements of due process contemplate that, where feasible, notice of legal proceedings be given by means reasonably calculated to inform all parties having legal rights which might be directly and adversely affected thereby; further, where the names and addresses of adverse parties are known or easily ascertainable, notice of pending proceedings by publication service, alone, is not sufficient to satisfy the requirements of constitutional due process.

Once it became apparent at the district court level that all parties interested in the probate of the will and whose rights might thereby be affected, had not been notified of the proceeding, it became imperative that such parties be so notified if reasonably possible to do so. Consequently, we believe the trial court erred in proceeding to determine the appeal as it did without notice to these missing heirs or, in the alternative, a showing why they could not be so notified.

It may be noted that once an appeal from probate court has been duly perfected the district court has and exercises the same jurisdiction as though the controversy had been commenced in that court and the issues are determined in trial de novo. Pleadings may be filed or amended and trial in, and issues to be considered by, the district court are neither abridged nor restricted by any failure to appear or by the evidence introduced, or the absence or insufficiency thereof, in the probate court (K. S. A. 1972 Supp. 59-2408; In re Marsolf, 200 Kan. 128, 434 P.2d 1010). An appeal from an order in probate court admitting a will to probate does not, however, suspend the operation of that order until determination of the appeal (K. S. A. 59-2407).

The judgment is reversed and the cause remanded to the trial court with directions to set aside its order determining the appeal from probate court and to issue an order that appellee give notice to all the heirs of Willis B. Bames, deceased, of the hearing of the appeal in district court and make proof of same, in accord with constitutional due process requirements before further proceedings in the appeal are conducted.

approved by the court.