In re Estate of Tracy

• Decision Date: 18 August 2006
• Docket Number: No. 94,593.,94,593.
• Parties: In the Matter of the ESTATE OF Avis A. TRACY, deceased.
• Court: Kansas Court of Appeals

140 P.3d 1045

In the Matter of the ESTATE OF Avis A. TRACY, deceased.

No. 94,593.

Court of Appeals of Kansas.

August 18, 2006.

COPYRIGHT MATERIAL OMITTED

Martin J. Peck, of Hyndman & Peck, L.L.P., of Wellington, for appellant.

Troy Dierking, of Dierking Law Offices, of Caldwell, for appellees.

Before MARQUARDT, P.J., ELLIOTT and PIERRON, JJ.

MARQUARDT, P.J.

Sallie Shore, executor of Avis A. Tracy's will, appeals the district court's denial of the petitions to probate Tracy's will. We reverse and remand with directions.

Tracy died on August 21, 2003. A petition was filed on October 14, 2003, by Tracy's sister and niece for the appointment of an administratrix and the issuance of letters of administration. On October 17, 2003, a guardian ad litem was appointed to represent unknown heirs. On November 20, 2003, the district court found that Tracy died intestate and appointed Tracy's sister and niece as coadministrators.

On March 9, 2004, the coadministrators filed an amended petition to probate Tracy's will and for the issuance of letters testamentary. This petition stated that Tracy's will had been discovered on February 24, 2004. According to the affidavit of mailing in the record on appeal, notice of the petition to probate the will was sent to Tracy's sister, four nieces, and two nephews. No notice was sent to Shore or the First Christian Church, the beneficiary in Tracy's will.

On February 23, 2005, Shore also filed a petition to probate the will, stating that the will had been "withheld from probate by the actions of the deceased scrivener, who stored the will in an envelope with old, canceled checks and bank statements." Shore stated she "had access to the will for less than 90 days," arguing that it should be admitted pursuant to K.S.A. 59-618. No one disputes Shore's statement that she had access to the will for less than 90 days. The will left the balance of Tracy's estate to Shore, as trustee for the First Christian Church in Wellington, Kansas.

On March 16, 2005, the guardian ad litem for the unknown heirs filed an answer to the petitions, which read:

"COMES NOW, Troy Dierking, Guardian ad Litem appointed herein and for defense on behalf of said clients to the Petition for Probate of Will and Issuance of Letters Testamentary, denies each, every and all and signular [sic], the allegations of the Petition which are adverse to the interest of his clients."

On April 1, 2005, the district court held that K.S.A. 59-618 did not apply and denied the petitions to admit Tracy's will to probate. Shore filed a timely notice of appeal.

K.S.A. 59-617 provides that property may not be passed under a will "unless a petition is filed for the probate of such will within six months after the death of a testator." K.S.A. 59-618 provides an exception to the 6-month time limit set forth in K.S.A. 59-617: "Such will may be admitted to probate . . . if such petition is filed within 90 days after such beneficiary has knowledge of such will and access to it. . . ."

In the instant case, the district court did not specify that it refused to probate Tracy's will because it was not filed within the 6-month time limit provided by K.S.A. 59-617.

Shore argues that K.S.A. 59-617 is a statute of limitations; therefore, the limitation must be raised as an affirmative defense or it is waived. She further argues that the district court erred in raising the statute of limitations contained in K.S.A. 59-617 sua sponte as a reason for refusing to probate Tracy's will.

The guardian ad litem argues he sufficiently raised K.S.A. 59-617 as a defense. He argues the general denial he filed on March 16, 2005, was sufficient to allow the district court to deny the petition under K.S.A. 59-617.

Generally, a "statute of limitations is an affirmative defense and the burden of pleading and proving its applicability rests on the defendant." Slayden v. Sixta, 250 Kan. 23, 26, 825 P.2d 119 (1992). All affirmative defenses must be pled. K.S.A. 60-208(c).

An affirmative defense must be pled so that it provides an opponent with fair notice of the nature of the defense. 61A Am.Jur.2d, Pleading § 287, p. 244. A general denial does not provide notice.

"A true statute of limitations prescribes a time period within which an action must be brought upon claims or rights to be enforced, and should be distinguished from nonclaim statutes [and] jurisdictional limitation periods . . . ." 51 Am.Jur.2d, Limitation of Actions § 7, p. 456. A statute of limitations "does not deprive a court of jurisdiction." Matter of Estate of Kubby, 929 P.2d 55, 57 (Colo.App.1996).

Conversely, "[a] `nonclaim statute' is a self-contained statute which absolutely prohibits the initiation of litigation based on it after a prescribed period." 51 Am.Jur.2d, Limitation of Actions § 10, p. 458. "Its purpose is to impose a time limitation for bringing a claim as a condition precedent to having a right of action . . . . [A] non-claim statute deprives a court of jurisdiction if a claim is not timely filed." Kubby, 929 P.2d at 56-57.

In order to determine whether K.S.A. 59-617 is a statute of limitation or a nonclaim statute, this court must examine the language of the statute. See Kubby, 929 P.2d at 57. It is a matter of statutory interpretation over which this court has unlimited review. See Cooper v. Werholtz, 277 Kan. 250, 252, 83 P.3d 1212 (2004). "Language creating a non-claim statute must clearly indicate that failure to comply with its terms bars the claim, that filing is a condition to the existence of a claim, or that failure to file deprives a court of jurisdiction." Kubby, 929 P.2d at 57; 51 Am.Jur.2d, Limitation of Actions § 11, p. 459.

K.S.A. 59-2239 limits the time in which demands and claims may be filed against an estate and has long been considered a probate nonclaim statute. Harris, Survey of Kansas Law: Administration of Estates, 17 Kan. L.Rev. 325, 328 (1968). It operates as a complete bar to all demands against a decedent's estate that are not timely filed. Harris, Survey of Kansas Law: Administration of Estates, 17 Kan. L.Rev. 325, 328 (1968); see 3 Bartlett, Kansas Probate Law and Practice § 1316, p. 190 (rev. ed.1953).

The Kansas Supreme Court has determined that K.S.A. 59-2239 "`is clear, unambiguous, and comprehensive. Words more significant . . . could not have been employed'" to demonstrate that the statute operates as a complete bar to any and all claims or demands which are not timely filed. In re Estate of Wolf, 279 Kan. 718, 723, 112 P.3d 94 (2005) (quoting 3 Bartlett, Kansas Probate Law and Practice § 1316 [rev. ed.1953]).

The primary purpose for K.S.A. 59-2239 is the speedy settlement of the estates in the interest of creditors, heirs, legatees, and devisees, and to settle titles to real estate. It is a bar on which parties may rely. 3 Bartlett, Kansas Probate Law and Practice § 1316, p. 190 (rev. ed.1953).

The statute relied upon by the district court in the instant case, K.S.A. 59-617, states:

"No will of a testator who died while a resident of this state shall be effectual to pass property unless a petition is filed for the probate of such will within six months after the death of the testator, except as hereinafter provided."

In In re Estate of Colyer, 157 Kan. 347, 139 P.2d 411 (1943), the Kansas Supreme Court held that an application to probate a will that was found in a safe after the 1-year time limitation set forth in G.S.1935, 59-618 (1941 Supp.) was presented too late. Colyer died on March 5, 1939. Colyer's estate was administered and closed on June 10, 1941. In November 1941, the will was found and was not presented for probate until May 29, 1942.

The Colyer court commented:

"In our opinion the provision of the probate code fixing a period of limitation in which an application for probate of a will must be made is clear and unambiguous, and not subject to any exception by reason of other sections of the code, and the trial court correctly held that the application to probate the will of James Orr Colyer was made too late." 157 Kan. at 351, 139 P.2d 411.

We find that the language of K.S.A. 59-617 does not absolutely prohibit an action to probate a will beyond the 6-month time limit. Under the facts of this case, it establishes a time limitation in which a will may be filed for probate but does not deprive a court of jurisdiction.

The Kansas Code of Civil Procedure has specific rules that apply to statutes of limitations, and the question is whether those rules apply to the probate code. The probate code does not specifically incorporate any part of the Code of Civil Procedure. In fact, the Supreme Court has rejected assertions that probate matters are governed by the Code of Civil Procedure. In some cases, however, the Kansas appellate courts have assumed that decisions interpreting the pleading statutes in Chapter 60 are applicable in probate cases. See, e.g., In re Estate of Wolf, 32 Kan.App.2d 1247, 1251, 96 P.3d 1110 (2004), aff'd 279 Kan. 718, 112 P.3d 94 (2005).

The Kansas Supreme Court could not discern any "sound reason for giving statutes of limitation in the probate code any greater or less effect than is given to limitations statutes to be found in the code of civil procedure." In re Estate of Brasfield, 168 Kan. 376, 385-86, 214 P.2d 305 (1950). As such, the Brasfield court applied the same equitable principles that govern the tolling of statutes of limitations under the Code of Civil Procedure to the statutes of limitations within the probate code.

Under the Kansas Code of Civil Procedure, a court may not raise the issue of statute of limitations upon its own motion. Frontier Ditch Co. v. Chief Engineer of Div. of Water Resources, 237 Kan. 857, 864, 704 P.2d 12 (1985). A "court may raise issues on its own motions[; however,] it is limited to issues of jurisdiction. Affirmative defenses, such as the statute of limitations, are not...