(dissenting): To be a lone dissenter always demands a careful reexamination of one’s own views. Having conscientiously responded to that demand I cannot bring myself to agree with the judgment rendered or the reasoning upon which it is based. I am therefore obliged to dissent.
With entire respect for the views of my brethren I shall endeavor to state my own views. Limitations of time prevent reference to numerous statements of principle contained in our previous decisions which 1 would prefer to make. It will be observed a majority of the court concurs in the opinion of the court which it fell to my lot to write and that a majority likewise has joined in a concurring opinion by Mr. Justice Parker. It is my view that our previous cases in point are in principle contrary to the judgment of the court in the instant case. I do not believe they can be harmonized and I adhere to our previous decisions and to the fundamental reasoning upon which they are based.
What lawyers and trial judges are constantly concerned about is to have settled decisions to guide them in order that lawyers may advise their clients and that judges may rule and instruct juries with a reasonable sense of certainty and assurance that they are right. I agree fully if previous decisions of this court are erroneous we should readily concede our error. On the other hand, before we overrule such decisions we should be convinced the new ones are grounded on better doctrine and sounder reasoning.
This is a case in which only heirs are involved. One is the daughter of an intestate decedent. The other is decedent’s widow, the daughter’s stepmother. The daughter filed a petition for administration and listed herself and the widow as the sole heirs at law. .The widow answered promptly, waived her right to serve as administratrix in favor of R. H. Shaw as administrator. She immediately claimed a one-half interest in the estate by inheritance and her rights as a widow under the law. The daughter later claimed not only a child’s share, as an heir at law, but other rights under a marriage contract executed by her father and stepmother. The daughter did not exhibit her claim under that contract until after the nonclaim statute had run. She does not contend she exhibited her claims under the marriage contract within the time *107and manner in which it would be required if her claimed rights constituted a claim or demand under the claim statute (G. S. 1947 Supp. 59-2239) or the decisions of this court construing it. (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.)
It is conceded an heir at law need make no claim for an ordinary inheritable interest under the law of intestate succession. (In re Estate of Grindrod, 158 Kan. 345, 361, 148 P. 2d 278; Houdashelt v. Sweet, 163 Kan. 97, 101, 180 P. 2d 604.) But the claimed rights of an heir in and to an estate, other than a mere right by inheritance, must be exhibited within the time and manner required by the nonclaim statute. (G. S. 1947 Supp. 59-2239.) That statute does not exempt heirs who have claims or demands against an estate. The statute includes claims of heirs of every kind and character, other than an inheritable interest, which are necessary to make a proper order of final settlement and distribution under the provisions of the final settlement statute. (G. S. 1947 Supp. 59-2249; In re Estate of Grindrod, supra; Gantz v. Bondurant, 159 Kan. 389, 155 P. 2d 450; In re Estate of Wenzel, 161 Kan. 545, 557, 170 P. 2d 618; In re Estate of Hill, 162 Kan. 385, 176 P. 2d 515.)
The cases just cited are not intended as a complete list of our cases involving claims of heirs. They are merely those that readily come to my mind. The instant case is not the first involving the question of the right of an heir to wait until final settlement to assert his rights. Insofar as I have been able to ascertain this court has never before held that an heir may wait until the hearing for final settlement and distribution to assert a controversial claim to a portion of a decedent’s estate if proper notice of the pendency of the administration has been had. We denied the widow such a right in the Wenzel case, supra, and held she was obliged to file her objections to a will within the period of the nonclaim statute. We there said:
“In the two objections to the final order of distribution which were filed many months after the nine months period Lela attempted for the first time to avoid the effect of her consent' to the will. These two pleadings ask an adjudication that would strike down the will and under many of our recent holdings were filed too late. See G. S. 1945 Supp. 59-2239, also Foss v. Wiles, 155 Kan. 262, 124 P. 2d 438; Yeager v. Yeager, 155 Kan. 734, 129 P. 2d 242; Swisher v. Bouse, 155 Kan. 797, 130 P. 2d 565; also Burns v. Drake, 157 Kan. 367, 139 P. 2d 386.” (p. 557.)
We have likewise held a widow could not wait until the hearing *108for final settlement to select and describe a particular property which she claimed as a homestead but was required to do so promptly when a controversy concerning that subject existed. (Meech v. Grigsby, 153 Kan. 784, 788, 113 P. 2d 1091.)
Nor is this the first case involving the question whether alleged rights, under a marriage contract relied upon by an heir, constitute a claim or demand against an estate. In the Hill case, supra, the marriage contract gave the widow the homestead and its furnishings for life. They were later sold by a joint conveyance of the husband and wife. The district court concluded that by virtue of such contract the widow should be allowed an amount from the estate equivalent to the value of that property. We reversed the ruling. One of the grounds for the reversal was that the asserted rights under the antenuptial contract constituted a claim or demand against the estate and that since the claim under the contract had not been exhibited within nine months the rights claimed thereunder were barred. Moreover, we felt it our duty to determine that point although it had not been raised by the parties.
Now in the instant case a part of the estate which an,heir, the daughter, claims by virtue of the marriage contract is the proceeds of the sale of a homestead which had been sold prior to decedent’s death. In this case we now say the daughter’s claim to that part of the estate asserted, by virtue of the marriage contract, is not a claim or demand and need not be exhibited within the time and manner prescribed by the nonclaim statute. What, in principle, is the distinction?
Another part of the estate the daughter claims, also by virtue of the same contract, is the amount the widow sought as a widow’s allowance. We now say that is not a claim or demand against the estate. In what manner does that differ, in principle, from the Hill case?
An additional part of the estate the daughter likewise claims, by virtue of the same marriage contract, is the widow’s share of the estate by inheritance. We now say that is not a claim or demand. How is that ruling to be distinguished, in principle, from the Hill case?
I simply cannot find a sound basis for differentiating the decisions in these cases. Here the heir, the daughter, by virtue of the marriage contract, asserted rights to three separate and distinct portions of the estate claimed by the widow. Any of these, if allowed to the *109daughter, would have reduced the residue which otherwise would have remained for distribution between the widow and the daughter as heirs. That is the test of a claim or demand upon which the decision in the Hill case rests. I cannot agree that if an heir, as in the Hill case, claims only one portion of an estate under a marriage contract it constitutes a claim or demand because, if allowed, it would reduce the amount left for distribution- — -but if an heir, as in the instant case, claims a right to three separate and distinct portions of the estate, other than her own inheritable share, she is not asserting a claim or demand which, if allowed, would reduce the assets otherwise remaining for distribution.
We now also say the controversy in the instant case is merely between contending heirs as to the proportionate share each will receive out of decedent’s estate and is in no sense to be regarded as a claim or demand against the estate. I am unable to follow the logic of that reasoning. A controversy such as that just mentioned would exist in every estate where various heirs, as here, claimed the same portions of the estate. And that would be true irrespective of the theory on which the claims might be based. Here one heir claimed a one-half interest in the estate by inheritance and her rights as a widow. The other heir, the daughter, is contesting those rights. Her claim, as all claims to a portion or all of an estate, is made adversary in character by the new probate code and as such must be asserted as the code provides. (Egnatic v. Wollard, 156 Kan. 843, 854, 137 P. 2d 188.) And see p. 854-856 where it is expressly stated that a claim to a portion of an estate, based on contract, is one of the adversary claims which must be asserted by petition and in the manner provided by the code.
It seems to me the inevitable result of the majority decision is that heirs, irrespective of what the nature or character of their antagonistic claims or demands may be, can wait and assert their alleged rights at the time of final settlement and distribution. If they are permitted to so wait to present their claims what becomes of the claim or demand statute insofar as heirs are concerned? What, for example, will be the effect of this decision upon partial distributions made in the meantime? What will be the effect upon other administrative acts resulting from belated claims of heirs asserted only at the time of final hearing for settlement and distribution?
It is evident this was precisely the confusion in, and uncertainty *110of, administering decedent’s estates that the new code was designed to prevent. (Burns v. Drake, 157 Kan. 367, 139 P. 2d 386, and numerous cases therein discussed.) The law compels the administrator in his petition for final settlement and distribution to set forth “the nature and character of the respective claims of the heirs, devisees, and legatees of the decedent.” (G. S. 1947 Supp. 59-2247.) (Italics supplied.) Manifestly, an administrator cannot comply with this legislative mandate if the claims of heirs have not been previously exhibited as required.
This decision, in my opinion constitutes a clear departure from the true spirit, intent and purpose of the probate code. To my mind it also constitutes a serious departure from our previous decisions which many members of the bench and bar have come to understand as settled probate law. I do not approve overruling these decisions or rendering a new decision which confuses these sound established principles.
One other subject requires attention. It is the order of the district court which overruled the demurrer of the widow to the petition of the administrator for final settlement and to specific portions of the answers filed by the daughter in all of which pleadings the marriage contract was set up as the basis of the daughter’s claims. This court has sustained the order of the district court overruling the demurrer to those three pleadings. It has done so on the theory that the rights asserted by the daughter under the marriage contract are not a claim or demand and, therefore, it was not necessary to exhibit the claims within the nine-month period. As already indicated I do not agree with that conclusion. I think the demurrer should have been sustained on that particular ground.
The other ground of the widow’s demurrer was that the marriage contract did not bar her rights to inherit and to obtain a widow’s allowance and homestead privileges. That portion of the demurrer called for an interpretation of the legal effect of the contract. In view of this court’s ruling that the daughter’s claim under the contract is not barred, a ruling on the legal effect of the contract is highly important and should be made. It is my opinion that ground of the widow’s demurrer was properly overruled by the district court.
The majority opinion holds that the legal effect of the contract is not before us. With that ruling I am not in accord. The petition of the administrator for final settlement was based squarely on the *111marriage contract. The demurrer challenged only the specific portions of the daughter’s answer in which the marriage contract was alleged and admitted to be in full force and effect. G. S. 1935, 60-717, expressly authorizes a demurrer to new matter alleged in an answer. The marriage contract was new matter. Tjfis court should, therefore, pass upon the legal effect of the marriage contract in order that the district court may know whether itfe ruling on that ground of the demurrer was proper. I think its ruling on that ground was proper for the reason that the marriage contract shows on its face it barred the widow’s right of inheritance and of all other rights in and to the estate. In other words, if the daughter had exhibited the marriage contract in the time and manner provided by the claim and demand statute she would have been entitled to a judgment granting her all of the estate except the costs and expenses of administration. Since she did not do so she cannot rely on the contract as a basis for her various claims to portions of the estate in addition to her right of inheritance.