concurring: The court in its opinion side steps a golden opportunity to give the bench and bar some meaningful guidance in probate practice in an area which is vitally important to attorneys examining real estate titles. The case is important to probate practice because it touches a critical point in probate proceedings. It deals with the question of jurisdiction of the probate court over necessary parties to the proceedings.
*512While I agree with the abstract propositions of law stated by the court in each paragraph of the syllabus, the opinion itself gives only lip service to such law which it conveniently fails to apply to the stipulated facts at the probate court level. The situation is confusing because proceedings were conducted in both the probate court and in the district court. The court’s opinion purports to cover the law at both levels by catapulting into the proceedings in the district court, after reviewing the law relative to the proceedings in the probate court. It is only in the district court that the Supreme Court applies the due process requirements of notice.
The court’s opinion relative to the proceedings in the probate court flies squarely into the face of Walker v. Hutchinson City, 352 U. S. 112, 1 L. Ed. 2d 178, 77 S. Ct. 200; Pierce v. Board of County Commissioners, 200 Kan. 74, 434 P. 2d 858; and Chapin v. Aylward, 204 Kan. 448, 464 P. 2d 177. These cases adhere to the doctrine that where the names and addresses of parties affected by litigation are known or are easily ascertainable, notice of pending legal proceedings by publication service alone is not sufficient to satisfy constitutional due process requirements.
In this case if the will of Willis B. Barnes, deceased, is valid strangers receive the property in the estate, but if it is invalid for any reason his heirs would inherit his property. His heirs therefore are vitally interested in proceedings concerning the admission of the will of Willis B. Barnes, deceased, to probate. The heirs are adversaries and necessary parties to this litigation.
The critical issue presented by this appeal, at both the probate court and district court levels, is whether the petitioner (subsequently appointed executor) or his attorney exercised reasonable diligence in ascertaining the names and addresses of the heirs of Willis B. Barnes, deceased, who as adversaries and necessary parties to the proceedings were entitled to notice of the proceedings commensurate with the requirements of state and federal due process. In my opinion the petitioner (executor) and his attorney were negligent and utterly failed to exercise reasonable diligence in ascertaining the names and addresses of such heirs. To give substance to this charge it will be necessary to chronologically present the stipulated facts and apply the law, in my opinion, as it should be.
The Probate Code specifically requires that a petition for the *513probate of a will must state the name, residence, and date and place of death of the decedent; the names, ages, residences, and addresses of the heirs of the decedent so far as known or can with reasonable diligence be ascertained. (K. S. A. 59-2219 and 59-2220.)
On the 23rd day of March, 1970, the probate court ordered a hearing on the petition to admit the will of Willis B. Barnes, deceased, to probate and directed that notice be given pursuant to the provisions of K. S. A. 59-2209.
The provisions of K. S. A. 59-2209, as amended in 1965, here applicable, read:
“When notice of hearing is required by any provision of this act, by specific reference to this section, such notice shall be published once a week for three (3) consecutive weeks in some newspaper of the county authorized by law to publish legal notices. The first publication shall be had within ten (10) days after the order fixing the time and place of the hearing; and within seven (7) days after first published notice the petitioner shall mail or cause to be mailed a copy of the notice to each heir, devisee, and legatee or guardian and ward or conservator and conservatee or guardian ad litem as the case may be, other than the petitioner, whose name and address are known to him. The date set for the hearing shall not be earlier than seven (7) days nor later than fourteen (14) days after the date of the last publication of notice.” (Emphasis added.)
The court in its opinion clearly states the law here applicable when it says:
“Here again our statutory scheme indicates that the term “known’ as used in 59-2209 must be . understood to mean an heir known to the petitioner or an heir who by the exercise of due diligence should have been known to him. . . .” (Emphasis added.)
Clearly the question presented by this appeal is whether the petioner, or his attorney aoting on his behalf, exercised reasonable diligence in ascertaining the names and addresses of the heirs of Willis B. Barnes, deceased.
The stipulated facts in this case clearly show the foregoing issue, which is the subject of this litigation, was never determined either in the probate court or in the district court. This is the specific point upon which the issues were framed by the pleadings in the district court.
The only information supplied to this court by the stipulated facts as to what transpired at the hearing in the probate court to admit the will to probate is the following:
“The Petition to admit said Will to probate was heard in the Probate Court on April 20, 1970. At this- hearing, the evidence of all of the subscribing *514witnesses to the Will, to-wit: John H. Rupp, Dorothy Kippes and Alma Kelly, was reduced to writing and filed. Such written testimony establishes the name and residences of the subscribing witnesses, the acquaintance of the witnesses with Willis B. Barnes, and the fact that each of said witnesses was present at Ellis, Kansas, on February 11, 1970‘, and saw Willis B. Barnes sign said Will and heard him publish and declare this: to be his last will and at his request, in his presence and in the presence of each other, signed the Will as a subscribing witness; that Willis B. Barnes was about 77 years of age and was of sound mind and memory and not under any restraint or undue influence.
“On April 20, 1970, the Probate Court found that Willis B. Barnes died on February 25, 1970, at Hays, Kansas, admitted said Will to' probate and appointed James M. Bailey as executor without bond.”
Now to digress shortly, based on the foregoing stipulated facts the court concludes, in its opinion: “Cognizance may be taken of an initial showing on behalf of the executor of diligent inquiry to ascertain the names of all heirs” With' nothing in the record to support it this is indeed a bold assumption. Perhaps prior to the decisions in' Pierce v. Board of County Commissioners, supra, and Chapin v. Aylward, supra, such presumption could be indulged, but surely not after their pronouncement. The court further states in its opinion: “No contention is made that the notice was not properly published. A showing of good faith efforts at ascertaining heirs has. already been noted. Excepting for the moment the alleged failure to mail notice to John, an affidavit revealed mailing of notice to those heirs known after the exercise of reasonable diligence and this proof of service was duly approved by the probate court”. There is absolutely nothing in the stipulated facts to warrant the courts conclusion that notice was; mailed to the known heirs “after the exercise of reasonable diligence”, or that “proof of service was duly approved by the probate court” relative to the admission of the will to probate in the probate court.
Prior to the hearing in the probate court Donald L. Martin, attorney for the petitioner James M. Bailey, filed an affidavit of mailing which recited the facts as related in the court’s opinion. It is to be noted that in the affidavit the petitioner’s attorney stated he mailed a copy of the notice to both legatees and devisees and to the decedent’s two brothers, Elmer and Frank Barnes. The petition listed the decedent’s nephew, John Barnes, as an heir but he was not named in the affidavit as having been mailed notice of hearing. The affidavit also stated that on April 3, 1970, the affiant became aware of Lucille Syme, a resident of Oakland, California, who was a child of a predeceased sister of the decedent, *515and he did on that date mail a notice to her, and on April 17, 1970, he became aware of Helen Jessee, a resident of Tucson, Arizona, another such child, and on that date he mailed her a copy of the notice. The affidavit further stated “such persons being all of the heirsi, legatees and devisees of Willis B. Barnes, deceased, whose names and addresses are known to the petitioner or to affiant”.
No reference was made in the affidavit whatever to John Barnes, or to the decedents remaining six nephews or nieces who were heirs at law of Willis B. Barnes, deceased.
Subsequent to the admission of the will to probate James M. Bailey, executor, filed a petition for the allowance of certain demands and on the 25th day of May, 1970, his attorney, Donald L. Martin, filed an affidavit of mailing similar to the affidavit filed prior to the hearing for the admission of the will to probate. This affidavit also omitted the name of John Barnes and six heirs of the decedent who were his nephews and nieces, but it did name Lucille Syme and Helen Jessee.
The parties named in that affidavit as having been mailed notice were said to be all of the interested creditors and all heirs, legatees, and devisees “who are known to the executor or to the affiant.”
The executor thereafter filed a petition for authority to sell personal property and his attorney, Donald L. Martin, filed an affidavit of mailing notice which, insofar as is material herein, is similar to the prior affidavit filed in connection with the petition for the allowance of demands.
The foregoing affidavits filed in the probate court by Donald L. Martin are material only as evidence to show the shoddy practice in giving notice to the necessary parties in this case.
Actually, what the appellants did in the probate court is immaterial to a determination of the issue here presented because they appealed the matter to the district court.
The appeal taken by John Barnes and Elmer Barnes from the admission of the will to probate to the district court was perfected within the period of nine months as authorized by K. S. A. 59-2404, here applicable.
Once an appeal has been duly perfected, the district court has, and exercises, the same jurisdiction and power as though the controversy had originally been commenced in that court. Pleadings may be filed or amended, and the trial in, and issues to be con*516sidered by, the district court are neither abridged nor restricted by any failure to appear, or by the evidence introduced, or the absence or the insufficiency thereof, in the probate court. (K. S. A. 1972 Supp. 59-2408; and In re. Marsolf, 200 Kan. 128, 434 P. 2d 1010.) An appeal from an order, other than an order admitting a will to probate, suspends the operation of any order, judgment, decree, or decision appealed from until the appeal is determined or the district court shall otherwise order. (K. S. A. 59-2407.) The failure of the statute to suspend the order of the probate court admitting a will to probate does not, however, affect the authority of the district court to determine the issues on appeal from the probate court de novo.
In 1944 the case of In re Estate of Grindrod, 158 Kan. 345, 148 P. 2d 278, held that the district court did not acquire jurisdiction to try a will contest action on appeal from an order admitting a will to probate where the opponent of the will, after having received the required notice of the time and place of hearing for probate, made no objections of any kind or character to the validity of the will or to its probate and took no steps in the probate court to vacate or set aside the order of probate. This case was laid to rest by the amendment of the applicable statute which now appears as K. S. A. 59-2404, and it was so held in the case of In re Marsolf, supra.
To resolve the issue here presented we must look solely to the proceedings conducted in the district court.
In the district court, John Bames and Elmer Bames filed an answer in which they alleged among other things:
“(1) That the Probate Court of Trego County, Kansas had no jurisdiction to admit said Will to Probate on April 20, 1970, for the reason that petitioner did not comply with the provisions of K. S. A. 59-2209 in the following particulars:
“a. Said Petitioner made no diligent effort to secure the names of heirs of Willis B. Bames, deceased, who would inherit under the laws of descent and distribution and failing to list the same in said Petition for Probate of Will; that such names could have been easily ascertained by proper inquiry.
“d. No Notice of Hearing on Petition for Probate of Will was given Flora Poulson, Lee Bames, or Wade Barnes, children of John Bames, predeceased brother of decedent or to Edward Teeters, Harold Teeters or Raymond Teeters, children of Carie E. Teeters, predeceased sister of decedent.” (Emphasis added.)
On the 8th day of October, 1971, the executor filed a pleading in the district court alleging:
*517. . [T]hat both he and his attorney made diligent effort to secure names and addresses of Willis B. Barnes, Deceased, but that Appellants and other interested heirs-at-law refused to furnish such names and addresses and it was impossible to ascertain and determine such names and addresses without the cooperation of the Appellants and other heirs-at-law to whom inquiry was made; . . . that it was admitted that no Notice of Hearing was given to Flora Paulsen, Lee Barnes, Wade Barnes, Edward Teeters, Harold Teeters and Raymond Teeters; but that such failure to give notice was the fault of Appellants and other interested heirs-at-law. . . .” (Emphasis added.)
Thereafter on the 18th day of October, 1971, the appellants filed a motion for summary judgment seeking to have the order of the Probate Court of Trego County, Kansas, made on the 20th day of April, 1970, admitting the will to probate set aside. It was alleged the order was void because the probate court had no jurisdiction to admit said will to probate for failure of the petitioner to comply with the provisions of K. S. A. 1970 Supp. 59-2209.
On the 2nd day of November, 1971, the district court overruled the appellants’ motion for summary judgment. In doing so it made specific findings and rulings which it set forth in its journal entry. Apparently the trial court failed to grasp the significance of the appellants’ appeal. In its journal entry the trial corut recited:
“No. 1
“The appellants contend, in their brief, that the Probate Court lacked jurisdiction and that the order of April 20, 1970, admitting the will to probate is void because the affidavit of mailing notice of hearing dated April 20, 1970, fails to show that notice had been mailed to John Barnes, one of the two appellants. The record shows John Barnes was listed as an heir in the petition for probate but is omitted from the affidavit of mailing notice.
“This essentially is the extent of basis for the appellants contentions, although the appellants also state in their brief that several other heirs of the decedent were not named in the petition nor in the affidavit of mailing notice.
“No. 2
“The respondent Executor in his answer and brief, contends that John Barnes was in fact mailed a copy of the notice of hearing but his name was erroneously omitted from the affidavit of mailing. The respondent further contends that all heirs known to the petitioner, after diligent inquiry, were listed in the petition and were mailed copies of notice of hearing, but that the list of heirs was not complete at the outset because of failure of appellants to cooperate in answering questions regarding names and addresses and extent of heirs of the decedent.” (Emphasis added.)
The district court then proceeded with its preoccupation over the notice to John Barnes and concluded:
“No. 6
“The case is in this, the District Court, for trial de novo at the specific re*518quest of the appellants, John Barnes and Elmer Barnes, by their notice of appeal, timely filed in the Probate Court on January 6, 1971.
“John Barnes has submitted to the jurisdiction of the Court over his person by his notice of appeal requiring trial de novo in the District Court on the petition for probate of the will. Proof of notice to John Barnes as well as Elmer Barnes, is now unnecessary as they are themselves affirmatively invoking the jurisdiction of the Court for trial de novo.
“No. 7
“For the above stated reasons the Court finds the Motion for Summary Judgment filed by the appellants on October 18, 1971, should be overruled, and so orders.” (Emphasis added.)
On the record here presented concerning the point under discussion, the appellants by then- motion for summary judgment admit only the well pleaded facts of the executors pleadings— “that the appellants and other interested heirs-at-law refused to furnish such names and addresses”, “such” referring to the “names and addresses of Willis B. Barnes, Deceased.” (See quoted pleading, supra.) Even assuming the executor intended to say “the names and addresses of the heirs of Willis B. Barnes, Deceased” this fact does not warrant the legal conclusion that “it was impossible to ascertain and determine such names and addresses without the cooperation of the appellants and other heirs-at-law to whom inquiry was made”; or the legal conclusion that diligent inquiry was made to ascertain the names and addresses of the heirs of Willis B. Barnes, deceased. (See, Gard, Kansas Code of Civil Procedure, § 60-256(a) p. 257.)
In fact, in my opinion, the above allegation of fact warrants a legal conclusion to the contrary — that due diligence was not exercised in the matter by the appellee or his attorney.
At this point, viewing the record on a motion for summary judgment by resolving all doubts against the moving party, there remained an issue of fact to be determined by the pleadings— whether the appellee, or his attorney acting in his behalf, made diligent inquiry to ascertain the names and addresses of the heirs of Willis B. Barnes, deceased. The district judge, however, side stepped this issue and overruled the motion for other reasons.
Thereafter the case was again ordered set for pre-trial conference on November 20, 1971. Prior thereto on November 20, 1971, the appellants filed a motion requesting the court for an order setting aside the ruling and judgment entered on the 2nd day of November, 1971, denying the appellants’ motion for summary judgment, *519and in connection therewith the appellants filed several affidavits indicating the ease with which the executor or his attorney could have ascertained the names of the heirs of Willis B. Barnes, deceased, had they exercised any diligence whatever. In these affidavits the names of the decedents’ brothers and sisters both living and deceased were named together with all of the nieces and nephews who were heirs of the decedent.
In the motion the appellants also alleged that in accordance with the provisions of K. S. A. 1970 Supp. 60-212(b) they were entitled to raise questions of either lack of jurisdiction over the subject matter, or lack of jurisdiction over the person, either by motion or by answer.
One of the affidavits filed with the appellants’ motion was by Elmer Barnes, an heir of the decedent and a surviving brother. In the affidavit he denied that he had ever been requested for the names or addresses of the heirs-at-law of Willis B. Barnes, deceased. Another affidavit was by Art Baugher, for many years a neighbor to Willis B. Barnes, who stated that both he and other neighbors adjacent to the property now in the estate could have furnished the names and addresses of some of the heirs of Willis B. Barnes, deceased. He also named Mr. and Mrs. Delbert Dietrich who at the death of Willis B. Barnes, deceased, were the agricultural tenants on the real estate belonging to the decedent, stating that the names and addresses of some of the heirs were known to them.
At the pre-trial set for November 30, 1971, the parties entered into a stipulation reciting the facts upon which the matter was submitted to the district court. Insofar as here material, the appellants stipulated they would stand on the jurisdictional question and without waiving any of their rights to appeal on said question or otherwise, they would present no evidence at the trial concerning the admission of the will to probate.
After submission of the matter to the district court on the 30th day of November, 1971, upon the stipulated facts, the district court admitted the will to probate as valid in all respects. It further affirmed and approved all orders heretofore written and entered by the Probate Court of Trego County, Kansas, and taxed the costs to Elmer Bames and John Barnes.
From the foregoing stipulated facts it is abundantly clear that neither the probate court nor the district court at any time determined whether reasonable diligence had been exercised by the *520executor or his attorney in ascertaining the names and addresses of the heirs of Willis B. Barnes, deceased, who were entitled to notice of the proceedings. That issue was clearly raised by the appellants at all points throughout the proceeding in the district court. It is that point upon which they stand on this appeal.
It can hardly be said that the mere recital of diligence in an answer in the district court by the appellee, which was designed to frame the issue, supplies a finding by the trial court that diligence has been exercised. The recital by the trial court in its journal of the appellee’s contention regarding diligence in ascertaining the names and addresses of the heirs of the decedent does not supply a finding by the trial court that diligence has been exercised.
The Supreme Court of Kansas has firmly said in both Pierce v. Board of County Commissioners, supra, and Chapin v. Aylward, supra, that where the names and addresses of adverse parties are known or are easily ascertainable, notice of pending legal proceedings by publication service alone, is riot sufficient to satisfy the requirements of due process under the Fourteenth Amendment to the federal constitution or § 2 of the Bill of Rights of the Kansas Constitution. Walker v. Hutchinson City, supra, confirms this requirement.
Willis B. Barnes, deceased, was survived by the following heirs:
“Frank Barnes, a Brother;
John Barnes, Flora Poulsen, Lee Barnes, and Wade Barnes, nephews and nieces, they being the children of John Barnes, a deceased brother of said decedent;
Edward Teeters, Harold Teeters and Raymond Teeters, Nephews, they being the sons of Carrie E. Teeters, a deceased sister of said decedent;
Lucille Syme and Helen Jessee, nieces, they being the children of Josephine Kinney, a deceased sister of said decedent;
Elmer Barnes, ... a brother of said decedent.” (Emphasis added.)
Insofar as the record herein discloses the names of the heirs of Willis B. Barnes, deceased, above emphasized have never received notice by mailing or otherwise of the proceedings here in litigation. Absent a showing of reasonable diligence (a question here in litigation) publication notice is insufficient because it is violative of due process. It seems to me the preoccupation of the district judge with jurisdiction over John Barnes in this action obscured the real issue to be determined in the district court.
*521Assuming the opinion of the court relative to the law and the facts at the probate level is applied in practice to a similar set of facts in the future, without reference to the court’s disposition of this case at the district corn! level, a few pertinent questions must be asked to test the law. For example, what would the Supreme Court say if an heir, who had never been notified of the proceedings to admit a will to probate, came into court at a later date collaterally attacking the admission of the will to probate and discloses his standing in the matter? Would he be permitted by the court to prove, by his unrefuted evidence, that reasonable diligence had not been exercised by the petitioner or his attorney in ascertaining the names and addresses of the heirs of the decedent who were vitally interested in the admission' of the decedent’s will to probate? Or would he be denied the right to proceed on the ground that his rights had been foreclosed in the proceedings conducted in probate court? Bear in mind the probate court made no inquiry concerning reasonable diligence; it made no finding relative to the notice given the heirs, and the record is silent as to whether the probate court approved or disapproved the notice. In my opinion, an attorney carefully examining title to real estate affected by proceedings disclosing such infirmities would refuse to approve such title.
It seems to me that either the court has misconceived the vital issue in this case, or it is putting its stamp of approval ori the negligent practice of the law. The court has before it a beautiful set of stipulated facts to clarify an area of confusion and uncertainty in probate practice.
In an effort to find a solution to the problems created for legal practitioners examining real estate titles by the decision in Chapin v. Aylward, supra, the Kansas Judicial Council on July 10, 1970, undertook to study the matter through an advisory committee of attorneys, who were experts on real estate titles. After almost two years of study the Council rejected the various suggestions of its advisory committee, — of proposed legislation or proposed Supreme Court Rule — on the ground that most suggestions were too restrictive or limiting in scope, and that no suggestion was better than a restatement of the law itself. Accordingly, it was felt, the solution was in the bosom of the Supreme Court through its decision making powers on a case by case basis.
As suggested by the stipulated facts in this case, and fortified with the Kansas Judicial Council Study, I would assert the follow*522ing minimum requirements to establish jurisdiction over the necessary parties in the probate couit.
Where a will is offered for probate and jurisdiction over the heirs (or any of them), who are necessary parties, is sought by serving them with process solely by publication, the probate judge (here the district judge on appeal) shall conduct an inquiry and examine the petitioner, or an attorney acting in his behalf, to determine whether he has made a diligent and meaningful search of all reasonably available sources of information at hand to ascertain the names and mailing addresses of the heirs of the decedent, and in so doing the judge shall require evidence of diligence as he may deem necessary in the circumstances.
As evidence of diligence, the judge may consider whether such primary sources as the records of the county clerk, the county assessor, the county treasurer, the register of deeds, the district court, and the probate court, where applicable, have been examined, and whether such secondary sources as the city, county or municipal directories of the county where the decedent resided and his property is located have been examined, to ascertain the names and addresses of the heirs of the decedent. As further evidence of diligence, as applied to the stipulated facts in this case, the judge should have ascertained whether the tenant on the decedent’s land during his life time, the neighbors in the vicinity of the decedent’s land, and the known heirs of the decedent were examined to determine the names and addresses of all of the heirs of the decedent.
If, after hearing the evidence, the judge finds that due diligence has been exercised in conducting a meaningful search of reasonably available sources at hand, he shall cause a finding to be entered in the journal entry of judgment which shall be substantially as follows :
That the court, upon, inquiry into the sufficiency of the petitioners search for the whereabouts and addresses of the heirs-at-law of the decedent served by publication herein, after hearing the evidence, finds due diligence has been exercised in the examination of all reasonably available sources at hand, and that the service of process by publication to all such heirs should be and is hereby approved as meeting the minimum requirements of state and federal due process.
If the court should find that reasonable diligence has not been exercised in ascertaining the names and addresses of the heirs of the decedent, in which event the publication notice given would be insufficient to confer jurisdiction on the probate court over the *523necessary parties, the hearing to admit the will to probate should be abandoned, and the petitioner should be ordered to exercise reasonable diligence in the matter so that the requirements of due process are met and jurisdiction over the necessary parties is conferred upon the probate court before proceeding to a hearing on the petition to admit the will to probate.
The foregoing would give substance to the law announced by our prior decisions, and it would give the bench and bar some meaningful guidance in probate practice. It would help to eradicate what some practitioners regard as mere formalities or legal fiction, which the court in its opinion seems to condone.
If the Supreme Court permits the shoddy practice indicated by the record herein to continue in the probate court without adequate direction from the court itself, one mistake will lead to another, and litigation will continue to persist in matters affecting real estate titles.
Based upon my views herein expressed, I agree with the reversal of the judgment of the trial court and a remand of the case with the direction given.