Shaw v. Welch

204 P.2d 714, 167 Kan. 97, 1949 Kan. LEXIS 251

• Court: Supreme Court of Kansas
• Decided: April 9, 1949
• Docket: No. 37,557
• Status: Published

Opinions

The opinion of the court was delivered by

Wedell, J.:

This is an appeal from an order of the district court overruling the demurrer of an heir, the widow of a decedent’s estate, to a petition of the administrator for final settlement and distribution and the overruling of the same demurrer to two portions of separate answers of an heir, the decedent’s daughter, to two separate petitions filed by the widow setting forth her alleged claims to and interest in the decedent’s estate. The petitions and answers were all filed in the probate court. The demurrer was filed by the widow in the district court.

We shall refer to the appellant as the widow and to appellee as the daughter. Although the administrator is also shown as an appellee the parties concede he is not really a necessary, party to this appeal. In order, however, .that the procedure pursued may be clear we shall, in substance, set forth the administrator’s petition for final settlement and distribution.

The above mentioned petition of the administrator, in substance, alleged the widow was entitled to no portion of the estate and the .daughter was entitled to all assets of the estate, except the necessary expenses and costs of administration, by virtue of a marriage agreement entered into by the deceased husband and the widow which the administrator denominated as a postnuptial agreement. The widow was the daughter’s stepmother. The probate court records show that about five months after the first publication of the administrator’s notice to creditors the administrator’s attorney filed in the probate court a certified instrument purporting to be a marriage agreement executed by the decedent and the widow on July 21, 1942, and recorded by the register of deeds of Montgomery county on July 23, 1942. The daughter filed no claim asserting rights thereunder within the statutory period for filing claims. In her petition for administration the daughter alleged she and the widow were decedent’s sole heirs at law. The widow promptly answered claiming the rights of heirship as a widow and one-half of decedent’s estate.

We come now to later pleadings filed in the probate court to a portion of which the widow demurred in the district court and to the order from which she has appealed to this court. These pleadings were all filed after the administrator’s report for final settlement but before judgment of final settlement and distribution. The pleadings were all filed after the nine months’ period of the non-claim statute.

In the first of these petitions the widow sought a widow’s allowance in the sum of $750 and one-half of the estate. She alleged a marriage agreement under date of July 21, 1942 (the agreement was not set out), had been orally revoked during the marriage on the ground it was considered unfair to her.

In the second and later petition the widow sought an order allowing her the proceeds of the sale of described city real estate which she alleged had been her and decedent’s homestead. This property had been sold on a contract of installment payments during decedent’s lifetime.

The answers of the daughter to those petitions of the widow asserted the marriage agreement as the basis of her claim that she was entitled to the entire estate. This was the first time the marriage contract was set up in a pleading as the basis of the daughter’s claim to the estate. The daughter alleged that agreement was a bar to the widow’s rights of inheritance, to a widow’s allowance and to homestead rights. The widow’s demurrer, filed in the district court, challenged those portions of the daughter’s answers and the petition of the administrator for final settlement which were based on the marriage contract. By the demurrer it appears the widow attempted to obtain a ruling on the legal question whether ' the marriage contract barred her from obtaining a widow’s allowanee, a homestead interest or one-half of the estate. Another ground of the demurrer was that the marriage contract pleaded by the daughter, as the basis of her claim, constituted a claim or demand against the estate and that it was not filed within the period of the nonclaim statute.

Portions of the daughter’s first answer other than those above mentioned denied the marriage contract had been abrogated.

Portions of the daughter’s second answer, other than those challenged by demurrer, alleged the property which the widow claimed as a homestead, if it ever was the homestead, had been abandoned as a homestead several years before decedent’s death and that other property owned by the widow individually had been their home for many years.

We therefore find factual issues joined by the widow’s petitions and the answers of the daughter relative to whether the marriage agreement continued to be operative and also whether the real estate in question constituted a homestead. Neither of those factual issues had been determined by the district court. If the marriage contract were in fact abrogated during the marriage the widow’s rights could not be 'affected by the previous contract and no rights accrued to the daughter by reason of such canceled contract. So long as the pleadings clearly presented such factual issues the demurrer was properly overruled. This is true irrespective of whether the ruling was based on the theory we have stated or whether it was based on the court’s interpretation that the contract barred all rights of the widow. The ruling must be affirmed if it was correct on any theory. From what has been stated it must not be inferred we are now determining the legal effect of the marriage contract.

This brings us to the widow’s contention the marriage contract was pleaded by the daughter for the purpose of establishing she was not merely entitled to a child’s share of the estate by inheritance, but that she was the owner of the entire estate by virtue of the contract, less the expense and costs of administration; if the contract entitled her to receive some particular portion of the estate, or all of the estate as the daughter contends, then such a contract constitutes a claim or demand against the estate and against the interests of the other heir, the widow, which the daughter was required to file in the probate court within the statutory period and in the manner provided by law; that was not done and the administrator could not waive the requirement.

The widow cites sections of the 1947 Supp. requiring, and cases holding that every application in the probate court must now be by petition (59-2201); demands are exhibited by filing a petition in the probate court (59-2237) and unless so exhibited within nine months after the date of the first published notice to creditors the claim or demand is barred (59-2239); In re Estate of Dotson, 154 Kan. 562, 568, 119 P. 2d 518; In re Estate of Whittelsey, 156 Kan. 157, 160, 131 P. 2d 911. The daughter does not contend she complied with any of such statutory requirements. If she prevails it must be on another theory to be stated later.

The decedent died intestate. The heirs at law were the widow and the daughter. If there were no contract, and there was no will, the widow would be entitled to the rights of an heir and widow under the law. The daughter as the other heir would be entitled to a child’s share under the law of intestate succession.

The question, therefore, is whether, assuming the marriage contract entitles the daughter to the entire estate, as she contends, it constitutes a claim or demand against the estate. The widow concedes the daughter would not be required to file a claim if she were claiming only an heir’s, a child’s, share by inheritance. That is true. (In re Estate of Grindrod, 158 Kan. 345, 361, 148 P. 2d 278; Houdashelt v. Sweet, 163 Kan. 97, 101, 180 P. 2d 604.) The widow, however, contends the daughter is not claiming merely an heir’s, a child’s, share by inheritance, but on the contrary is asserting additional rights in and to the estate not based upon inheritance at all but upon a specific contract made by her father and stepmother for the daughter’s benefit. The widow’s contentions may be summarized by stating: The daughter is seeking the enforcement of a contract which the daughter claims entitles her to a larger share of the estate than a child’s share by inheritance; the assertion of such rights in and to the assets of the estate is a claim or demand which will take from the estate the amount another heir, the widow, would take by inheritance and under the law as a widow; the allowance of the daughter’s claim will, therefore, leave nothing in the estate to be distributed to the other heir, the widow. In support of the widow’s contention that such a contract constitutes a claim or demand she cites the following cases based on contractual rights to all or portions of an estate: Foss v. Wiles, 155 Kan. 262, 124 P. 2d 438; Dixon v. Fluker, 155 Kan. 399, 125 P. 2d 364; Yeager v. Yeager, 155 Kan. 734, 129 P. 2d 242; Swisher v. Bouse, 155 Kan. , 130 P. 2d 565; Burns v. Drake, 157 Kan. 367, 139 P. 2d 386. Those cases and others are cited in Gantz v. Bondurant, 159 Kan. 389, 155 P. 2d 450, also relied on by the widow. It is true that concerning those cases and others we said in the Gantz case:

“In none of the above cases was the claim or demand against the estate for money. In each case it was specifically a claim or demand to all or a portion of the decedent’s estate and was based upon the theory that claimant was entitled to be decreed the owner thereof.” (p. 394.)

The widow also relies on cases holding the probate court has exclusive original jurisdiction to determine the title, legal or equitable, to real estate where necessary to settlement and distribution of decedent’s estate and that unless such claim is filed within the period of the nonclaim statute it is barred. (Gantz v. Bondurant, supra; In re Estate of Bourke, 159 Kan. 553, 156 P. 2d 501; In re Estate of Hill, 162 Kan. 385, 176 P. 2d 515; In re Estate of Pratt, 164 Kan. 512, 517, 190 P. 2d 872, in which Houdashelt v. Sweet, supra, and other cases are cited.)

The widow directs attention to Burns v. Drake, supra, in which the petitioner claimed a particular portion of the decedent’s estate, real property, by virtue of a contract with the decedent and in which we said:

“If one who contests a will must now start in the probate court and appeal is barred after nine months, why should not one who claims a right, either legal or equitable, to estate property as against those claiming by inheritance be required to assert his claim within a nine-months period? We think that was the legislative intent and see no hardship in the requirement.” (p. 371.)

To the same effect the widow sites Gantz v. Bondurant, supra, p. 394.

In the Hill case, supra, the husband and widow had executed an antenuptial contract giving the widow a homestead in certain property for life together with its furnishings. A subsequent will executed by the husband with the widow’s consent gave her the same homestead and furniture for life. The homestead and furnishings were later sold by them jointly. It was held the clause of the will which gave her that specific property was adeemed by reason of having been sold and not being a part of his estate at the testator’s death. The district court, however, concluded as a matter of law, that the antenuptial contract was binding and that the widow should receive an amount out of the assets of the estate equivalent to the home and furnishings. The antenuptial contract had not been filed by the widow within the period of the nonclaim statute. We reversed the trial court on the grounds the court could not make a new will for the parties and thereby give the widow an amount out of the estate in lieu of the homestead and by concluding further that the antenuptial contract constituted a claim or demand which, not having been filed within the statutory period, could not be asserted; that the administrator could not waive the necessity of proving the antenuptial contract as a claim within the statutory period.

The widow emphasizes the fact that in the Hill case the parties made no contention the antenuptial contract constituted a claim or demand which had to be filed within the period of the nonclaim statute and that notwithstanding the absence of such a contention this court said:

“Although not mentioned in the briefs, there is a matter implicit in the judgment of the district court which we think should be mentioned and decided. As has been stated, the district court’s judgment was grounded solely on the binding force of the antenuptial contract. If that judgment is carried out Delta Moss Hill will receive an amount out of the assets of the estate which was not bequeathed to her, and thus the amount to be received by the residuary legatees will be reduced. Under our decisions, whatever rights Delta Moss Hill had under the antenuptial contract, as interpreted by the district court, constituted a demand against the estate of J. E. Hill. (See, e. g., In re Estate of Grindrod, 158 Kan. 345, syl. ¶ 5, 148 P. 2d 278; Gantz v. Bondurant, 159 Kan. 389, 155 P. 2d 450; and In re Estate of Bourke, 159 Kan. 553, 156 P. 2d 501.) Under the provisions of G. S. 1945, 59-2239, it was necessary, if Delta Moss Hill had a demand against the estate of J. E. Hill, that she make claim thereon within the time provided by that statute. Delta Moss Hill did not file any claim in the time fixed. Under such circumstance, the executor was without power to waive the statute of limitations or nonclaim (Allen v. Turner, 152 Kan. 590, syl. ¶ 2, 106 P. 2d 715; In re Estate of Badger, 156 Kan. 734, syl. ¶ 1, 137 P. 2d 198) and if, in an attempt to prove such a claim, is developed it was barred, it was the duty of the court to disallow it. (Hammond v. Estate of Hammond, 150 Kan. 113, 91 P. 2d 19.) It follows that Delta Moss Hill, not having filed her claim in the probate court, may not recover from her husband’s estate on account of their antenuptial contract.” (p. 392.)

The widow asserts the fundamental principle in the instant case is the same as in the cases she has cited. She states that in the instant case the marriage contract, if interpreted and allowed as the daughter contends, will enable the daughter to appropriate to herself a larger amount out of the assets of the estate than she would inherit as an heir at law and that the amount to be received by the other heir, the widow, would not only be reduced thereby but entirely wiped out.

On the other hand the daughter contends: G. S. 1947 Supp. 59-2236 shows that claims and demands apply only to creditors of an estate; an heir, when a decedent dies intestate, is not required to make a claim or demand for his inheritable share; the widow in the Hill case was an outsider trying to get something out of the decedent’s estate while in the instant case the daughter is claiming as an heir; G. S. 1947 Supp. 59-2247, which provides for notice of final settlement, permits heirs to assert their claims against an estate, or to any part thereof, at any time up to and including the hearing for final settlement and distribution.

G. S. 1947 Supp. 59-2247 provides:

“The petition of an executor or an administrator for a final settlement and accounting, and a determination of the persons entitled to the estate of a decedent, shall, in addition to other requirements, contain: (1) A statement of the account; (2) the names, residences, and addresses of the heirs, devisees, and legatees; (3) a description of the real estate and the interest of the decedent therein at the time of his death; and (4) the nature and character of the respective claims of the heirs, devisees, and legatees of the decedent. Notice of the hearing thereof shall be given pursuant to section 185 [59-22091.”

G. S.. 1947 Supp. 59-2209 referred to in the previous section pertains to the nature of the notice for a hearing which must be given where a statute expressly refers to such notice section. G. S. 1947 Supp. 59-2210 sets forth the substance of a notice of hearing wherever notice of a hearing is required.

Although this court does not agree with all of the daughter’s above contentions it is of the opinion the allowance of the marriage contract, assuming it entitles the daughter to the entire estate and deprives the widow of all rights therein, takes nothing out of the estate which would otherwise be left for distribution to the other heir, the widow; it determines only which of the heirs will receive the assets of the estate and does not constitute a claim or demand against the estate; it may be asserted by the other heir, the daughter, at the hearing for final settlement and distribution as a defense to a prior pleading of the widow in which she claims as an heir and widow.

The motion of the daughter to dismiss the appeal in the instant case has been examined and found to be without substantial merit. The order of the district court overruling the widow’s demurrer is affirmed.

Harvey, C. J., concurs in the affirmance of the judgment of the trial court.