(dissenting): I cannot agree that our statutes governing the probating of a will decree a public policy that every valid will must be admitted to probate nor do I concur in the conclusion based thereon that a family settlement agreement, valid in all respects, wherein all of the legatees and devisees of the will and heirs of the deceased agree to withhold the will from probate, does not constitute a legal defense to the petition of a named executor, the sole proponent of the will.
*162The favor with which this court has always viewed family settlements has been so frequently and so forceably stated that a listing of decisions and quotations therefrom is unnecessary. However, the question posed where the interests of the members of a family, who have agreed to withhold a will from probate, are in conflict with the interest of a named executor, who insists on the probation of a will, has not been considered by this court.
Our statutes relating to the subject are K. S. A. 59-618, 59-620 and 59-621. The statutes mentioned give probate courts power to compel the production of a will and prescribe penalties and impose liabilities for the concealment, or withholding by one who has custody or knowledge of a will or access to it. There is no direct obligation expressed in any of the statutes mentioned that the will be admitted to probate after it is delivered or produced. Considering the pertinent provisions of our probate code, together with the expressions of this court, that family settlement agreements are favored in the law, I am unable to find a declaration of public policy such as that announced in the majority opinion. This is the viewpoint taken in most jurisdictions where the question has arisen. (117 A. L. R., Anno., 1249; 95 C. J. S., Wills, § 325, p. 159; 57 Am. Jur., Wills, § 1013, p. 657.)
From a reading of cases dealing with the subject, it appears that man}r of the jurisdictions referred to have probate code provisions quite similar to those of this state. What appears to be the majority rule is stated in 95 C. J. S., Wills, § 325:
“It has been held that a compromise or settlement agreement, entered into for the purpose of avoiding the trouble and expense of a will contest, is not void as against public policy, where no persons or interests other than the persons and interests of the contracting parties are prejudically affected thereby, unless it is entered into through connivance or fraud. . . .” (p. 162.)
A minority rule prevails in some jurisdictions, notably Wisconsin (Graef v. Kanouse, 205 Wis. 597, 238 N. W. 377 [1931]), Connecticut (Tator v. Valden, 124 Conn. 96, 198 Atl. 169, 117 A. L. R. 1243) and North Carolina (In re Will of Pendergrass, 251 N. C. 737, 112 S. E. 2d 562.), wherein agreements have been declared to be invalid as contrary to public policy.
In New York a statute (Surrogate’s Ct. Act. § 144, subd. 2), similar to our previous code provision (R. S. 1935, 22-218, repealed in 1939), was held to compel the admission of a will to probate. (In re Cherkoff's Will, 189 N. Y. S. 2d 530.)
*163In In re Estate of Swanson, 239 Iowa 294, 31 N. W. 2d 385, the precise question was stated as follows:
“Proponents’ appeal presents the question whether the settlement agreement is a valid defense to their attempt to probate the will and codicils. . . .” (p. 296.)
The Iowa court rejected the minority rule stating:
“Like other courts, we have not followed the Wisconsin rule which is based on the theory a will is more sacred than a contract and it is the duty of courts to carry out the wishes of the testator regardless of the wishes of beneficiaries. . . .” (p. 300.)
More recently, the Supreme Court of Oregon was confronted with the identical conflict between a named executor and parties in interest who had entered into a written agreement to withhold a will from probate. In Dover v. Horger et al, 225 Ore. 492, 358 P. 2d 484, in adhering to the majority rule, the court considered the Oregon statutes and policy and in disposing of the matter stated:
“The trial court found that the agreement was executed in good faith; that all obligations of the estate were paid; no good purpose would be served in requiring probate and therefore denied plaintiff’s petition to probate the will and estate.
“There was no reason to compel the expense of administration in this case. No creditor or other interested party was involved. The only interest plaintiff had was to collect his fee as executor. No statute or policy can be found which would require the court to grant administration where the only right that was involved was that of the person named as executor to receive his fee.” (p. 494.)
In Rubinstein v. Rubinstein (Mo. 1955), 283 S. W. 2d 603, the Supreme Court of Missouri, in considering the force and effect of statutes similar to ours, stated:
“The practice of withholding a will from probate is certainly not to be recommended (and was not recommended by Mr. Shifrin in this case); while we have a statute giving the probate courts power to compel the production of a will, Section 468.460 RSMo 1949, V.A.M.S., we have no statute placing upon anyone the direct obligation to produce and probate a will. Limbaugh, Missouri Practice, Vol. 1, p. 727. In this situation it appears that there is nothing inherently unlawful in an agreement between all the heirs and all the devisees to withhold the probate of the will if the property is actually distributed in accordance with the provisions of the will. See 57 Am. Jur., Wills, § 1013; Page on Wills, Vol. 4, p. 951. . . .” (pp. 606, 607.)
The rationale of the majority rule is set out in 2 Page on Wills (Bowe-Parker Revision), § 25.5, pp. 624, 625, and the cases in support thereof are catalogued.
*164In this case the members of the family agreed that the will should not be probated, that the assets of the estate should remain to accumulate for one year and thereafter a proceeding be instituted for a determination of descent as provided by the laws of Kansas. The proceeding referred to is provided for in K. S. A. 59-2250 and 2251, the prefatory provisions of which read:
“Whenever any person has been dead for more than one year and has left property, or any interest therein, and no will has been admitted to probate nor administration had in this state, . . .” (Emphasis supplied.)
The statutes mentioned were enacted as a part of the new Probate Code, effective July 1, 1939. The act was described by the Judicial Council as a simple and inexpensive method of determining heirship. From the language used, in particular that in emphasis, it appears the applicability of the act was not to be limited to intestate estates. I have no doubt but what such has been the practical construction placed upon the statute by many members of the Kansas Bar, as suggested by appellants. (See comment, 2 Bartlett’s Kansas Probate Law and Practice, 1964 Pocket Parts § 538, p. 10.)
In their written objection to the probate of the will in this case, the members of the family do not ask the court to approve the settlement agreement or to determine the rights of the heirs-at-law entitled to the estate. They merely request the court to refuse probation of the will and to dismiss the petition. No other determination is necessary or appropriate at this stage of the proceedings. There was no contention made as to the validity of the agreement or any suggestion of the existence of any of the exceptions in the majority opinion to the rule permitting family settlement agreements. The agreement here provides for the disposition of the estate exactly in accord with the terms of the will and, also, with the statutes providing for intestate succession (K. S. A. 59-501 et seq.). The effect of a holding that a family settlement agreement is not a valid defense to an executor’s petition for probation of a will deprives the members of a family of any choice as to the administration of their own inheritance and as a practical matter actually gives the option to a named executor.
I think it may be said in this case, but for insistence on the part of the named executor that the will be admitted to probate, the *165case would not be here. In my view the decision of the trial court should be reversed.
Fontron and O’Connor, JJ., join in the foregoing dissent.