The opinion of the court was delivered by
Jackson, J.:In this appeal we deal with another installment of the dispute between the heirs of Mr. and Mrs. Edwin G. Lytle. The first installment of this dispute to reach this court will be found in In re Estate of Lytle, 184 Kan. 304, 336 P. 2d 803. As shown in the above mentioned opinion, Mrs. Zelda Lytle died some ten days after the death of her husband, Edwin. The first appeal concerned the attempts of the relatives or heirs of Edwin to assert rights in the estate of Zelda. The blood relatives of Edwin, the husband, are and have been contending that the deceased widow was barred from inheriting from her husband’s estate. The former decision was briefly that the alleged rights of the present appellants amounted to a contention that they were heirs at law of the husband, and that such contentions did not constitute a claim in the wife’s estate.
The present chapter of the controversy arises from proceedings which occurred at the time the administrator of Edwin’s estate filed his petition for settlement and determination of the identity of the husband’s heirs. The administrator’s petition need not be further noticed. Within due time, the appellants herein filed their answer to the administrator’s petition denying the right of the widow to inherit any of her husband’s estate, except the homestead and personal automobile and set up an alleged postnuptial contract which they claimed barred the widow from inheriting her husband’s estate. The probate court transferred the above matter to the district court for decision upon the request of all parties. In the district court the administrator obtained leave of court to file a reply in which he contended the alleged marriage contract was void and that further the demands of the appellants amounted to a claim against the estate and was barred by G. S. 1949, 59-2239, the nonclaim statute, and for other reasons.
When the within matters came on for hearing in the district court, counsel for the appellants made an opening statement, after which the administrator moved for judgment on the pleadings and opening statement “insofar as pertains to the relief prayed for in the answer filed herein by the said Helen Maddy et al.”
*156Before this motion was ruled upon, the appellants were allowed to amend their answer by interlineation. Such amendment will be shown as part of the pertinent parts of the answer infra. The motion for judgment by the administrator seems to have been then renewed and was sustained by the district court. The sole question on this appeal is as to whether the trial court erred in this ruling.
There is nothing in this appeal concerning the opening statement so that the motion of the administrator really amounts to a motion for judgment on the pleadings. In considering the court’s ruling we shall have to overlook all issues of fact drawn by the pleadings of the parties and assume that the allegations of the answer of the appellants are true (Lanning v. Goldsberry, 173 Kan. 654, syl. ¶ 2, 250 P. 2d 812 and authorities cited).
Thus the question narrows down to the sufficiency of the answer in stating appellants’ claim as heirs to the estate of the intestate. The pertinent parts of the answer, with the paragraph inserted by the amendment referred to supra shown in italics, reads as follows:
“Answering respondents deny that the property of this estate, except the home and automobile, hereinafter described, should be distributed and assigned according to the law of descent and distribution of the State of Kansas, and state that it should be assigned as hereinafter set forth for and upon the following grounds.
“That a few months before the date of the death of Edwin G. Lytle, he and Zelda Lytle entered into an oral property settlement contract, by the terms of which Edwin G. Lytle was to own all of the property inventoried in this estate, except the home described as Lots 16, 18, 20, 22, 24 and 26 in Block 39 North of Main Street in the City of Stockton, Kansas, and a 1956 Buick automobile all of which stood of record in the name of Edwin G. Lytle, and in the event Edwin G. Lytle predeceased Zelda Lytle, she was not to receive anything from his estate other than said home and automobile, and Zelda Lytle was to separately own said home and automobile and all other property which she individually owned, and in the event she predeceased Edwin G. Lytle, he was not to receive anything from her estate which was to include said home and automobile.
“That the aforesaid contract was never changed or altered by said parties and continued and was in existence and full force and effect at the date of the death of Edwin G. Lytle.
“By virtue of the terms of said contract, respondents are the persons entitled to inherit the property of decedents estate, except the home and automobile in the proportions provided by the laws of descent and distribution of the State of Kansas, through the estate of the said Edwin G. Lytle.
“That prior to her death, Zelda Lytle executed a written memorandum or other instrument, confirming said property settlement; which written memorandum, shortly after her death, disappeared, and is now lost, misplaced, concealed, or has been destroyed, and is not now available to respondents.”
*157While it is evident that at the time the motion for judgment was first introduced by the administrator, it was the intention of the movant to urge that the statute of frauds barred appellants’ claims as well as the nonclaim statute, the amendment of the answer by interlineation seems to have removed that issue from consideration at this time. The trial court seems to have based its decision solely upon the nonclaim statute and that issue is actually the single question argued upon this appeal. Furthermore, any other matter which might be urged against appellants does not appear in the answer which is challenged by the motion for judgment.
The administrator recognizes in his brief before this court that the case of In re Estate of Welch, 167 Kan. 97, 204 P. 2d 714, presents a serious problem in upholding the ruling from which the appeal is taken. In the Welch case, a daughter of an intestate had petitioned for the appointment of the administrator and had alleged in the petition that the intestate had been survived by his widow and the petitioning daughter. At a later date, the existence of an ante-nuptial contract was discovered, and on petition for final settlement, it was contended by the daughter that the contract barred the widow from inheriting any of the intestate’s estate. The question turned upon the nonclaim statute as does the decision in the case now at bar. The Welch decision was that the matter was not a demand under the nonclaim statute. However, Mr. Justice Wedell dissented alone from the decision of the court, but under the rule of this court was compelled to write the majority opinion. In such circumstances, the concurring opinion of the now Mr. Chief Justice Parker, concurred in by all of the court with the exception of Mr. Justice Wedell, is especially pertinent in expressing the theory behind the court’s decision. The concurring opinion appears on page 105 of the report and reads as follows: