dissenting: I respectfully dissent. The petition for allowance and classification of demand filed by Marino & Wolf, Inc. (M&W) against the Estate of Francis J. Wolf, Jr., deceased, substantially complied with K.S.A. 59-2202 and placed the executrix, Nancy J. Wolf, on notice of the potential claim for attorney fees.
*1254The time allowance for filing a claim against a probate estate pursuant to K.S.A. 59-2239 is strictly enforced. However, as the majority opinion acknowledges, the substance of a petition for allowance of demand against an estate should be liberally construed. In re Estate of Cipra, 173 Kan. 334, 337, 246 P.2d 267 (1952).
Significantly, M&W was not a routine creditor making an ordinary demand for the recovery of money against the Wolf estate. M&W was the corporate business partially owned by Francis J. (Frank) Wolf at the time of his death. The “claim” filed by M&W was merely the notice of an Option Agreement allowing the corporation to redeem Frank’s shares of stock at an agreed price of $625 per share. The Option Agreement was M&W’s claim. Accordingly, M&W filed a petition placing the executrix on notice of the “attached” agreement and requesting to exercise its option “pursuant to the terms” of the agreement.
The majority opinion states that a purpose of the demand requirement in probate cases is to give the personal representative adequate facts and circumstances to understand the exact nature of the claim and to aid in his or her determination whether to allow or contest the claim. In this case, Nancy, who was represented by legal counsel at all times, could have understood the exact nature of the claim simply by reading the contract M&W was asking the probate court to enforce. She should not be able to claim surprise over the attorney fee provision which was clearly set forth in the contract and provided to her in a timely manner.
Likewise, M&W should not be faulted for failing to make a specific request for fees and expenses earlier in the proceedings. Under the Option Agreement, M&W was not entitled to recover the costs and expenses of the suit until it became the “prevailing party in the final adjudication” of the lengthy dispute between Nancy and M&W.
Finally, had Nancy prevailed in the probate litigation, she would have no doubt made a claim against M&W under paragraph 7.13 of the Option Agreement and she would have been entitled to recover her fees and expenses on behalf of the estate. It seems inequitable to deny M&W the right to enforce the same contract provision.
For these reasons, I would affirm the judgment of the trial court.