Shaw v. Welch

Parker, J.

(concurring): In the instant case the widow contends an antenuptial contract, which in effect fixes the distributive rights of the heirs of an intestate decedent when his estate is ready for final distribution, constitutes a demand against such estate under provisions of the new Kansas probate code.

This, as I read our decisions, is the first time this particular question has been squarely raised since the enactment of the new code. For that reason it is deserving of a forthright and definite answer.

I am convinced the phrase “all demands” as used in what is commonly known as the nonclaim statute (G. S. 1947 Supp. 59-2239) has reference only to claims against the estate of a decedent which, if allowed, will reduce the corpus of his estate or the amount of property which would otherwise be subject to division or distribution among the heirs of an intestate decedent or the legatees and devisees of a testate decedent as the case may be.

The controversy here involved is between contending heirs as to the proportionate share each will receive out of the decedent’s estate and is in no sense to be regarded as a claim or demand against the estate under the statute. It follows the legal effect of the marriage contract insofar as it affects the heirs’ rights to the estate now ready for distribution is a matter for consideration at the hearing on final settlement where, under the statute (G. S. 1947 Supp. 59-2249), the court is required to determine the heirs, devisees and legatees entitled to every estate, state the proportion or part thereof to which each is entitled and assign the same to them by its decree. Therefore, I hold that portion of the demurrer to the petition, predicated upon the premise that rights asserted by the daughter by reason of the contract are barred by the,nonclaim statute, was properly overruled.

In reaching the foregoing conclusion I have not been unmindful of the widow’s contention that several of our cases, set forth in the majority opinion, support her position. When they are carefully analyzed I believe they are all distinguishable. Be that as it may, if any of such decisions, or any language to be found therein, are susceptible of such a construction I am convinced that both language and decisions should be promptly and frankly disapproved.

*106Harvey, C. J., Smith, Thiele, Price and Arn, JJ., join in the foregoing concurring opinion.