(dissenting): In my opinion the decision herein is not controlled by the rule announced in the case of In re Estate of Welch, 167 Kan. 97, 204 P. 2d 714, upon which the court relies. There the parties litigant were a daughter and a widow of the decedent. Both were actually heirs at law. That is, upon the death of the decedent, absent any marriage contract or will, the widow would be entitled by the law of intestate succession to one-half of the decedent’s estate subject to distribution, and the daughter would be entitled to the other one-half of the decedent’s estate by the law of intestate succession. The concurring opinion in Welch emphasizes “The controversy here involved is between contending heirs as to the proportionate share each will receive out of the decedent’s estate . . .” (p. 105.) (Emphasis added.)
*162In my opinion the authorities set forth in the Welch case, in both the court and the dissenting opinions, should control the decision in the instant case. It is noted the concurring opinion in Welch, quoted at length by the court herein, recognized the facts in the Welch case to be distinguishable from such cases as In re Estate of Hill, 162 Kan. 385, 176 P. 2d 515, and other cases upon which the widow relied in the Welch case for the proposition that the daughters assertion of the marriage contract constituted a claim or demand against the estate.
I fail to perceive the distinction the court attempts to make in the case of In re Estate of Teeter, 184 Kan. 567, 337 P. 2d 691, where it was conceded the sons were bringing the proceeding to enforce performance of a. contract to make a will devising real property. This was interpreted to mean in the Teeter case the proceeding constituted a demand or claim against the estate since the sons were not relying on mere inheritance. Where an heir as a third party beneficiary places reliance upon a contract which, if ultimately established would alter the distribution of the assets in an estate, it should make no difference whether the contract is to make a will or to confer rights under a marriage settlement.
In the instant case the appellants cannot rely upon their right to the succession of property by operation of law. They are not heirs at law of Edwin G. Lytle, the decedent. The reasoning applicable in this case should not be confused with the fact that Zelda Lytle died only ten days after Edwin. The legal proposition must be treated in the same manner as it would had Zelda died after the settlement of Edwin’s estate. Upon the death of Edwin G. Lytle, absent any postnuptial marriage contract between Edwin and Zelda and absent any will, contractual or otherwise, by Edwin, Zelda was the only person entitled by the law of intestate succession to the distribution of his estate.
Who are the appellants? They are loosely referred to by the court as “heirs” of Edwin G. Lytle. This is incorrect. They cannot assert any rights to the estate of Edwin G. Lytle as heirs at law. They cannot by operation of law take the property in succession.
The historical significance of the term “heir” or “heirs” cannot be lightly ignored. The meaning of the term in the common law sense of succession is part of the law of this state. The word “heir” or “heirs” at common law had a definite meaning. In its strict and technical import it applied to the person or persons appointed by law to succeed to the estate in real property in case *163of intestacy. (2 Bla. Com. § 286, p. 201.) Stated in another way, the word “heir” or “heirs” in its ordinary or customary sense means the kindred of the decedent upon whom the law casts the estate in real property in the absence of a devisee, and has reference to the law of succession. (See, 19 Words and Phrases, Heirs, p. 199.) The term “heir” has a very definite signification at common law which must be distinguished from the signification it has in those states and countries which have adopted the civil law. Under the civil law the term applies to all persons who are called to the succession, whether by act of the party or by operation of law. (Story, Conflict of Laws, § 507.) By reason of our common law history the court should not inadvertently slip into civil law concepts.
It is fully recognized the term “heir” or “heirs” in the common law sense of succession was confined to persons who took real property derivatively from the ancestor by operation of law, and the term applicable to persons entitled to the personal property by the statutes of distribution were referred to as the “next of kin.” While there was a distinction at the old common law between the succession of real property and personal property when the doctrine of primogeniture prevailed, our probate code has obliterated this distinction. Therefore, where the term “heir” or “heirs” is used herein it should be understood to have reference to real property, and if the property affected by intestate succession is personal property the term “next of kin” can be substituted with equal force.
The appellants are the blood relatives of Edwin G. Lytle. In the first appearance of this case before the court, In re Estate of Lytle, 184 Kan. 304, 336 P. 2d 803, the appellants herein were referred to as “claimants” and were also referred to as the “fourteen collateral heirs of Edwin.” Presumably, the appellants are the brothers and sisters of Edwin and/or their lineal descendants. As of the date of Edwin’s death, however, they were not entitled by operation of law to inherit Edwin’s property.
Blackstone’s Canons of Descent have been superseded in the states of this country by statute. In this jurisdiction the probate code makes provision for the descent and distribution of property in case of intestate succession. (G. S. 1949, 59-501 to 59-514, incl.) Superimposed upon the probate code is the meaning of the word “heir” or “heirs” in its common law sense of succession. The use of the word “heirs” in G. S. 1949, 59-508, is illustrative. The probate code provides that no property of an intestate decedent shall pass, except by lineal descent, to a person further removed from the *164decedent than the sixth degree as defined therein. (G. S. 1949, 59-509.)
In the probate code (G. S. 1949, 59-2247) “The petition of an executor or an administrator for a final settlement and accounting, and a determination of the persons entitled to the estate of a decedent, shall, in addition to other requirements contain: . . . (2) the names, residences, and addresses of the heirs, devisees, and legatees; . . .” No practicing lawyer in preparing such petition for an executor or an administrator would list more persons under the term “heirs” than were the heirs at law of a decedent. In other words, they would not list all blood relatives who are the lineal descendants of the decedent and those not further removed from the decedent than the sixth degree. When the probate code provides that the probate court “shall determine the heirs . . . entitled to the estate” (see, G. S. 1949, 59-2247 to 59-2249) the legislature intended it to mean “heirs” in the common law sense of succession — heirs at law, those who succeed to the property of an intestate decedent by operation of law.
When the court says “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,” (Emphasis added) it is not referring to a rule which has application to the facts in the instant case. The blood relatives of Edwin in the instant case, appellants herein^ are not the heirs at law of Edwin and are not entitled to take by right of inheritance. Their rights, if any, are derived solely by reason of a contract which they allege was “an oral property settlement contract” entered into between Edwin and Zelda. If they are entitled to take at all, it is by act of a party and not by operation of law.
Perhaps the strongest argument that can be made for the decision of the court is found in the wording of the nonclaim statute. (G. S. 1949, 59-2239.) But to say that “all demands” as used in this section of the statute 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 distribution among the heirs of an intestate decedent, does not change the nature of the appellants’ assertion from a claim against the estate to an assertion of a right to inherit. The property subject to distribution at the final settlement is that which is available *165for distribution to the heirs at law. If the appellants prevailed by asserting the contract, the corpus of the estate subject to distribution by the law of descent and distribution would be reduced. Zelda would take less.
The appellants must assert the contract between Edwin and Zelda as third party beneficiaries if they are to receive anything at all, just as the two sons in the Teeter case were required to assert, as third party beneficiaries, their rights under the postnuptial contract of their father to make a will. If, in the instant case, the appellants could establish their claim under the contract, their rights to the property of Edwin would not be asserted as heirs of Edwin but as heirs of Edwin if Zelda were considered not to be entitled to inherit in accordance with the contract.
It is respectfully submitted the alleged rights of the appellants under a marriage contract between Edwin and Zelda constitute a claim or demand against the estate and since the claim under the contract has not been exhibited within nine months the rights claimed thereunder are barred. (In re Estate of Hill, supra; and In re Estate of Teeter, supra.)
In substance, the decision logically applied will permit any person, who is a blood relative not further removed from a decedent than the sixth degree and the lineal descendants of a decedent, to await the final settlement in an estate and there contest his right “to inherit,” as interpreted under the civil law concept of inheritance, based upon some prior marriage contract to share in the assets of a decedent’s estate. The decision of the court will inject confusion into the orderly administration of a decedent’s estate and contrary to the plain intent of the legislature as set forth in the probate code. It is repugnant to the decision in the Welch case which held the legal effect of a marriage contract, insofar as it affected the heirs’ rights to an estate ready for distribution, was 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. In Welch the term “heirs” was clearly used as intended by the probate code in its common law sense of succession.
The decision of the learned trial judge should be affirmed.
Price, J., concurs in the foregoing dissenting opinion.