Burns' Estate, Matter of

• Decision Date: 05 April 1980
• Docket Number: No. 50492,50492
• Parties: In the Matter of the ESTATE of K. Agnes BURNS, Deceased. Mary Elaine MEYERS, Claimant-Appellant, v. Lorine CLARK, Executrix of the Will of K. Agnes Burns, Respondent-Appellee.
• Court: Kansas Supreme Court

Page 942

608 P.2d 942

227 Kan. 573

In the Matter of the ESTATE of K. Agnes BURNS, Deceased.

Mary Elaine MEYERS, Claimant-Appellant, v. Lorine CLARK, Executrix of the Will of K. Agnes Burns,

Respondent-Appellee.

No. 50492.

Supreme Court of Kansas.

April 5, 1980.

Syllabus by the Court

1. In appeals from judgments and orders in probate cases entered by a district judge or an associate district judge the running of the time for appeal is terminated by a timely motion for rehearing or such other motion as may be enumerated in K.S.A. 60-2103(a ), and the full time for appeal fixed in K.S.A.1979 Supp. 59-2401(a ) commences to run and is to be computed from the date the written order on such a motion is signed by the judge and filed with the clerk of the court.

2. When a person contracts prior to his death to use the proceeds of a fire insurance policy to repair fire damage to an insured residence and its contents the intent of such person to restore the premises is clear. For all practical and equitable purposes the insurance proceeds stand in place of the damage to the premises and on death of the person the proceeds go with the premises and not into the estate of the deceased person.

3. In an appeal from disallowance of a claim filed by an heir of an insured the record is examined and it is held under the facts and circumstances of the present case and based upon equitable considerations the proceeds of a fire insurance policy stood in place of the premises damaged by fire and passed with the damaged premises to the grantee free of any claim of the heirs of the deceased grantor.

Reid F. Holbrook, of Steineger, Holbrook, Parks & Fritz, Kansas City, and Roy A. Larson, of Morris, Larson, King, Stamper & Bold, Kansas City, argued the cause and were on the brief for appellant.

John J. Bukaty, Sr., and John J. Bukaty, Jr., of Bukaty & Bukaty, Kansas City, argued the cause and were on the brief for appellee.

FROMME, Justice:

This appeal is from a judgment in the district court denying a probate claim filed by appellant Mary Elaine Meyers. The claim is based upon a claim of title to certain funds used to restore the structure and furnishings of a residence owned by a decedent at the time of her death.

We are confronted at the outset with a motion to dismiss on the ground the appeal was not timely filed. The claim originally was heard in the district court, probate department, and rejected by an associate district judge in a letter dated May 16, 1978, stating: "The applicable date of appeal will be as of the date of this letter and Mr. Bukaty is directed to draw a journal entry accordingly." A motion for "rehearing" was filed on June 16, 1978. (The motion was one to obtain a new trial.) The written journal entry was filed September 14, 1978. The order denying the motion for rehearing was filed September 15, 1978, and it provided: "For purposes of appeal, the application date shall be the date of receipt of this letter which shall be deemed to be September 18, 1978." The notice of appeal was filed October 6, 1978.

K.S.A.1979 Supp. 59-2401 in pertinent part appears as follows:

"(a ) An appeal may be taken within thirty (30) days from the date of entry of any of the following orders, judgments, decrees and decisions:

"(5) An order allowing, or disallowing, a demand in whole or in part when the amount in controversy exceeds fifty dollars ($50)." Emphasis supplied.

Subsection (c ) of the statute is also relevant. It reads as follows:

"(c ) Except as otherwise provided in this section, appeals taken pursuant to this section shall be taken in the manner provided by chapter 60 of the Kansas Statutes Annotated for other civil cases."

K.S.A. 60-259(b ) provides that a motion for new trial or to amend the judgment must be served not later than 10 days after the entry of judgment.

K.S.A. 60-2103(a ) in pertinent part provides:

"The running of the time for appeal is terminated by a timely motion made pursuant to any of the rules hereinafter enumerated, and the full time for appeal fixed in this subsection commences to run and is to be computed from the entry of any of the following orders made upon a timely motion under such rules: Granting or denying a motion for judgment under subsection (b ) of K.S.A. 60-250; or granting or denying a motion under subsection (b ) of K.S.A. 60-252 to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; or granting or denying a motion under K.S.A. 60-259 to alter or amend the judgment; or denying a motion for new trial under K.S.A. 60-259."

So it follows that the time for appeal is to be calculated from the entry of judgment or the entry of the order denying a new trial. K.S.A. 60-258 provides:

"Entry of judgments be subject to the provisions of section 60-254(b ) (judgment on multiple claims). No judgment shall be effective unless and until a journal entry or judgment form is signed by the trial judge and filed with the clerk of the court. . . ." Emphasis supplied.

After considering the foregoing statutes we are of the opinion the appeal was filed within time. The first letter opinion, although setting an earlier time for appeal, required a journal entry to be drawn and filed. K.S.A. 60-258 provides that no judgment shall be effective unless and until a written journal entry or judgment form is signed by the trial judge and filed with the clerk of the court. The written journal entry was filed September 14, 1978, and at this time the motion for new trial was pending. The motion was overruled and the order overruling the motion was filed September 15, 1978, setting September 18, 1978, as the date from which the 30 days for appeal was to run. See K.S.A. 60-2103.

There has been some uncertainty since unification of the courts in Kansas as to whether the 30 days for appeal under K.S.A.1979 Supp. 59-2401 for probate orders can be extended by filing a motion for new trial and similar motions as mentioned in K.S.A. 60-1203(a ). See Karlin, Contested Estate Matters After Court Unification, 48 J.B.A.K. p. 97, 103-104 (1979). Prior to unification this court held that such motions did not extend the time for appeal in probate matters. See In re Estate of Parker, 201 Kan. 1, 439 P.2d 138 (1968). There is now a separate section on appeals from orders entered by district magistrate judges which does not apply in our present case. The order was entered in this case by an associate district judge. See K.S.A.1979 Supp. 60-2103a.

After unification of the courts in 1977 we no longer have a probate court, as such, and all appeals from orders and judgments of a district judge or an associate district judge are to the court of appeals as provided in K.S.A. 60-2102 and 60-2103. This is spelled out in K.S.A.1979 Supp. 59-2401(c ) where it is specified appeals taken pursuant to this section "shall be taken in the manner provided by chapter 60 of the Kansas Statutes Annotated for other civil cases."

Accordingly we hold in appeals from judgments and orders in probate cases entered by a district judge or an associate district judge the running of the time for appeal is terminated by a timely motion for rehearing or such other motion as may be enumerated in K.S.A. 60-2103(a ), and the full time for appeal fixed in K.S.A.1979 Supp. 59-2401(a ) commences to run and is to be computed from the date the written order on such a motion is signed by the judge and filed with the clerk of the court.

The appellee's motion to dismiss is overruled and we turn to the merits of this appeal.

The decedent K. Agnes Burns (Burns) was the sister of Harry Butler (Butler). Butler died in 1971. Burns died in 1977. The claimant, Mary Elaine Meyers (Meyers) was a niece of Burns and she filed a claim against the estate of Burns claiming as a creditor for the cost of repairs to the furnishings and residence owned by Burns. The amount of the claim was $16,142.00. This amount was claimed by Meyers to have been paid in the spring of 1971.

The factual basis behind the claimed payment follows: Butler owned the residence in Kansas City, Kansas. Butler and his sister, Burns, were very close during a period of time preceding Butler's death. Burns spent much of her time with her brother and it was her custom to have almost all of her evening meals with her brother in this residence. Butler executed and delivered a deed to the residence to Burns. The deed was not recorded until after Butler died. A fire occurred in the premises on January 1, 1971, and Butler was seriously injured. He died on March 3, 1971. Butler had insured the house and contents. He filed a claim with the insurance company and...