(concurring in part and dissenting in part): I concur in the affirmance of the judgment on the merits. And since that judgment is favorable to the appellee, I would disregard her cross-appeal which questioned the jurisdiction of the district court to hear and determine matters not fairly raised nor fairly presented in the probate court. And particularly would I do so, rather than impair the confidence of the bench and bar in their reliance on our many recent pronouncements on this subject.
It does not meet this dilemma to suggest the question “how much evidence they [the objectors] must introduce in order to preserve the right of appeal.” They offered no evidence; they did not even plead their absurd oral contract in the probate court. An appeal is an address to a higher court to redress some supposed error or injustice committed in the lower court. How could the probate court by its decision commit some supposed error or injustice on any matter it was not asked to decide and did not decide? I do not overlook the fact that on appeal from the probate court the procedure in the district court is by a trial de novo. What is a trial de novo? It is a.new trial on the same issues; not a new trial on other and different issues. A trial de novo is provided in the district court so that the cause, may be tried before a judge who is *21qualified by training and experience to understand and decide complicated issues of law and fact which .may too greatly perplex the probate "judge who, more, often than not, is a layman and not a lawyer. The learned trial, judge of- the district court can readily discern whether the issues need to be formulated by good pleading; and thus amended pleadings may be allowed or required. But the code only mentions amended pleadings; it does not mention supplemental pleadings. .Amended pleadings are better pleadings, clearer statements of the controverted issues to be decided. Supplemental pleadings bring into the judicial controversy matters not theretofore involved in the litigation. For example, in the probate court the objections to the probate of a will may be the testator’s want of testamentary capacity, coercion, undue influence, or -want of independent advice. On this tender of issues these matters will be heard and decided in the probate court — let us say, against these objections to the probate of the will. But after all we have decided and all we have written since the new code was adopted in 1939, shall we now concede — shall we even intimate — -that counsel for the objectors could withhold from the probate court for exclusive use in the district court other objections to the will of which they had knowledge, for example, that the will was a downright forgery and that the attestation of the witnesses was obtained by bribery?
If I should ignore the nice shadings and distinctions which the above opinion would make in the Grindrod case (158 Kan. 345, 148 P. 2d 278) and the one at bar, the other forthright decisions of this court upon which the Grindrod case was predicated cannot be waived aside so easily.
In Shively v. Burr, 157 Kan. 336, 342, 139 P. 2d 401, the plaintiffs in an action for wrongful death were nonsuited because they failed to present a timely demand in the probate court against the estate of the wrongdoer. That decision was based on the new statute, of course (G. S. 1943 Supp. 59-301), but likewise upon our decisions interpreting and applying it. One of these was Foss v. Wiles, 155 Kan. 262, 124 P. 2d 438, where the legal question was whether an alleged oral contract for the lion’s share of a decedent’s estate was originally justiciable in the district court, on the theory that it was unnecessary to timely present a claim therefor in the probate court. The trial court held that the district court had original jurisdiction. We reversed that decision. Pertinent sections of our syllabus read:
“It was the intent and purpose of the framers of the Kansas probate code *22and of the legislature which enacted it to grant to probate courts exclusive original jurisdiction over all matters incident and ancillary to the settlement and distribution of decedent estates, except as to any matter over which that code expressly confers concurrent jurisdiction upon district courts.
“The Kansas probate code, which authorizes and directs probate courts to exercise such equitable powers as may be necessary and proper fully to hear and determine any matter properly before them and which also provides for appeals to the district court with full power of the latter court to hear and determine the action as though that court would have had original jurisdiction of the matter, does not deprive a person of any rights, legal or equitable, but merely determines his remedy.” (Syl. UU 3, 4.)
In his special concurrence to Shively v. Burr, supra, Mr. Justice Harvey very pertinently said:
“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. I regard it as of but little importance that some persons might analyze our statutes and reach a conclusion that only certain classes of claims should be presented to the probate court, and others of some indefinite classification should be presented in the district court, or that they might change their minds with respect thereto from time to time.” (p. 342.)
It is not at all rare in the judicial application of a new statute, particularly one so important as a new probate code, unexpected situations are likely to arise, which will have to be approached, surveyed and decided with deliberation; and sometimes the unqualified language of the statute will constrain the court to declare the law in terms it would willingly avoid. Although our civil code is now thirty-five years old, some of its provisions still call for authoritative interpretation. That is likewise true of the negotiable instruments act, now almost forty years old. So it is in no sense a just criticism of our five-year-old probate code that in its practical operation some surprising results may flow from an application of its text to cases we have to decide.
It should help reconcile critics of our recent decisions respecting the new probate code to recall the history of its drafting, the campaign of popular education which was conducted as to its desirability, and its eventual enactment. The demand for reform in probate court procedure and practice did not originate in Kansas. Some fifteen years ago the bar journals of the leading law schools of the country had a lot to say about the crying need for improvement in *23probate procedure and practice. Several new codes were born on' of that agitation. In our own state the prestige of our probate courtt (with some notable exceptions) was not high. Not infrequently lawyers gave them little more respect than they did to litigation before a justice of the peace. They let the justice of the peace blunder into whatever sort of decision his lack of training or experience might lead him, and appeal. And their respect for the rulings of the probate court was not much better.
But was not the purpose of the new probate code to change that situation for the better? Yes, but how much for the better? Only a little? If an objector to the probate of a will makes a half-hearted objection to the will, but does not follow his objection with a bona fide presentation of the law or the facts, and. keeps back his best and strongest objections to the will for the exclusive consideration of a higher tribunal, does he conform with the spirit and intent of the new code? Everything this court has hitherto said on the subject compels a negative answer. Indeed the plain letter of the code declares that the probate courts “shall have and exercise such equitable powers as may be necesssary and proper fully to hear and determine any matter properly before such courts.” (G. S. 1943 Supp. 59-301 [12].) If this plain language is not enough to declare the legislative purpose to confer full judicial power on the probate court to hear such matters as the appellants in this case reserved for the ear of the district court, just how much more specific ought such legislative purpose to have been expressed? How can the probate court fully hear and determine the propriety of admitting a will to probate if those who have valid objections to its probate do not fully and fairly present them?
There is nothing more common in appellate courts, state and federal, than the rule that matters not fairly raised and fairly urged in a lower court will not be considered on appeal. Why draw an out-moded distinction between an appeal from a probate court and any ordinary appeal to a higher court? Over a long stretch of years the decisions of this court will show how this court has consistently contributed its cooperative efforts to make new statutes work effectively to serve their legislative purpose. Rarely has this court adopted a hypercritical attitude to hamstring the legislative purpose. What possible evil can befall the administration of estates for this court to continue along in the courageous path it has pursued in the interpretation of the new probate code since its adoption? None *24whatever. Only a lawyers’ lingering tradition which we had well-nigh gotten completely rid of is out of step with the recent pronouncements of this court. (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. 797, 130 P. 2d 565; Behee v. Beem, 156 Kan. 115, 131 P. 2d 675; Egnatic v. Wollard, 156 Kan. 843; 137 P. 2d 188 and citations; Foss v. Wiles, supra; Shively v. Burr, supra; In re Estate of Grindrod, supra.)
For many years, when the rulings and orders of the corporation commission (by whatever name that tribunal has borne in the last half century) were brought before a court of general jurisdiction for review, by appeal, injunction, or other judicial disposition, it was the usual practice for the court to hear new evidence and new points of law never raised before the commission. The legislature put a stop to that. Now the judicial review is tried on the record made before the commission. The'same is now true of the judicial review allowed on the orders of the workmen’s compensation commission. Judicial reviews of the orders of the many federal boards and bureaus are dealt with the same way. I can give no countenance to the reactionary idea that a Kansas probate court in 1944 is still such a mean and insignificant tribunal that it can be by-passed on whatever matters inhere in a will which may be too important to be raised and litigated in that court, and that all such can be reserved for the exclusive original jurisdiction of the district court.