(concurring): In the instant case the widow contends an ante-nuptial 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 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.
*158“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.”
It would seem difficult to distinguish in any manner the case at bar from the Welch case. Appellants state in their brief that the district court relied upon the opinion in In re Estate of Teeter, 184 Kan. 567, 337 P. 2d 691, in making its decision in this case. All that was decided in the Teeter case was that the trial court had been mistaken in refusing to pass upon the question of the effect of a postnuptial contract as certified to it from the probate court. In the Teeter case the trial court seems to have been of the opinion it had no jurisdiction in a case involving a final settlement until after the probate court had passed upon the question even though the matter was transferred to it for decision. In reversing the trial court in the Teeter case, we only pointed out that under the amended statute the district court had ample jurisdiction to pass upon the questions involved in a final settlement when transferred to it from the probate court and did not have to await an appeal from the probate court.
However, the Teeter case may be further distinguished from this case although the question was not raised. Ry the postnuptial contract in the Teeter case, the intestate and his wife had agreed to leave certain specific property to two sons. The sons were bringing the proceeding to “enforce performance of a contract to make a will devising and bequeathing real and personal property (184 Kan. 509).” In other words, in the Teeter case, the proceeding would seem to constitute a demand or claim against the estate, since the sons were not relying on mere inheritance, see Foss v. Wiles, 155 Kan. 262, 124 P. 2d 438; Yeager v. Yeager, 155 Kan. 734, *159129 P. 2d 242, and other cases cited in the Welch case, supra. In this case, under the allegations of the present answer, we understand the appellants to insist that the only right they assert in the estate of the intestate is the right to inherit as heirs. They contend only that the contract in this case bars the widow from inheritance except as specified therein, just as the contract in the Welch case barred the widow in that case from taking by inheritance.
Lastly, the administrator suggests that this case differs from the Welch case in that here the appellants are “strangers” to the record of this estate. We suppose that by that is meant that appellants are collateral heirs and not issue of the intestate and that the wife, but for the alleged contract, would inherit the entire estate. It might be suggested that if the wife had died eleven days prior to the time of her actual death, appellants would have been the heirs of the entire estate. The record does not show the actual relationship between appellants and the intestate, but we may assume they are brothers and sisters or nephews and nieces. The provisions of G. S. 1949, 59-2247 to 59-2249 inclusive provide that the court “shall determine the heirs . . . entitled to the estate.” It is further provided that notice of the hearing shall be made under G. S. 1949, 59-2209 and 59-2210. Then notice is to run to “all persons concerned.” We have found no authority in this state or in any other jurisdiction and have been cited to none, which holds that one who contends he takes by right of inheritance and by that right alone under the facts of the case may not appear and set up his status of heirship and next of kin at such a hearing.
The term “heir at law” is stressed in the argument of this appeal. The precise meaning sought to be given to his term is vague. At common law an heir was the person to whom real property descended by inheritance. Personal property descended to the “next of kin,” at common law. It is worthy of careful note that the widow was not an heir at common law but had only the right of dower or curtsey. It would seem by careful consideration that the argument would seek to give the words “heir at law” the connotation of “heir apparent,” that is, the person who expects to inherit the ancestor’s property. But of course no man can be an heir of an ancestor still living, nor does the heir apparent obtain a decree settling his title to the property at the death of the ancestor. Normally he has a valid expectancy that the probate court will adjudge him to be the heir on hearing for final settlement and distribution *160of the estate. Of course, it is obvious that at common law the appellants were the heirs apparent of Edwin Lytle. All of the terms defined in this paragraph seem quite clear, but reference is made to 39 C. J. S. 881; 16 Am. Jur. 821, 862, sec. 90; and notes cited.
It must be clear that there may be several situations which may arise on the hearing for final settlement and distribution of the estate in which the “heir apparent” or “heir at law” will be found to be ineligible to inherit the estate normally due him. A few illustrations may be given:
Suppose the heir apparent disclaims his right to inherit. This may be quite unusual in jurisdictions based upon the concepts of the common law. Rut under civil law, and our knowledge thereof is quite limited, the heir may well disclaim because of the doctrine of universal succession under which the heir would seem to inherit the debts as well as the property of his ancestor. If there is a disclaimer in a common law jurisdiction, is the estate to escheat? Certainly not (26A C. J. S. § 64, p. 668 et seq. and see p. 672).
A second situation in which the heir apparent may be barred from inheritance and which is actually this case at bar, is where the heir apparent has made a binding, valid contract often with the “ancestor” to release and bar himself from the expectancy as an heir (26A C. J. S. § 62, p. 655). The headnote to the section just cited reads:
“Generally, the release of an expectant share to an ancestor excludes the releasor from participation in the ancestor’s estate.”
Assume that in this case we had a written contract signed by Edwin and Zelda and acknowledged before a notary public. What would the administrator have the court do on final settlement? Under the arguments advanced by him in this case to the effect that the appellants are “strangers,” he would either compel the court to hold that the estate escheated or that Zelda became entitled to the estate because of her own fraud.
Still a third situation where the heir apparent may be found to be barred at the time of the final settlement of the estate may be pointed out. Suppose it were proved at hearing for the final settlement that the heir apparent had been convicted of killing the ancestor as provided in G. S. 1949, 59-513. It must certainly be conceded that in such a case, appellants would inherit the estate as heirs or as “heirs at law” whatever that term may mean.'
We believe that the chief argument of the administrator amounts *161to this, that the postnuptial contract in this case was admittedly oral, and that it is further stated that the alleged memorandum made by Zelda has been lost. But on this record at this time, we should not impinge upon the well reasoned rule of the Welch case, supra.
The rule of In re Estate of Welch, supra, has been approved and followed in Brent v. McDonald, 180 Kan. 142, 300 P. 2d 396; In re Estate of Walton, 183 Kan. 238, 326 P. 2d 264, and In re Estate of Teeter, supra. We believe the rule of the case is founded upon reason and is sound.
In the case of In re Estate of Julian, 184 Kan. 94, 334 P. 2d 432, we find a contest between “collateral heirs” and an alleged daughter of an intestate. In the Julian case, the contest arose over- the right to petition for administration, but would either side of the lawsuit have been barred from raising the question of “heirship” at the time of final settlement of the estate? We think not.
From what has been said, we believe the facts stated in the answer of the appellants in the court below did not state a demand or claim under the nonclaim statute. These facts were admitted by the administrator s motion, and therefore, the trial court erred in sustaining the motion for judgment.
On trial the appellants will have the burden of proving the allegations of their answer, which may or may not be a heavy burden depending upon the evidence introduced.
Under the allegations of the answer, the order appealed from must be reversed. It is hereby so ordered.