In re Estate of Strader

Decision Date12 December 2014
Docket NumberNo. 105,964.,105,964.
PartiesIn the Matter of the ESTATE OF Betty Jo STRADER, Deceased.
CourtKansas Supreme Court

301 Kan. 50
339 P.3d 769

In the Matter of the ESTATE OF Betty Jo STRADER, Deceased.

No. 105,964.

Supreme Court of Kansas.

Dec. 12, 2014.


[339 P.3d 770]

Syllabus by the Court

1. Statutory interpretation is a question of law, and the appellate court's review is unlimited.

2. When interpreting a statute, the fundamental rule to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained. When language is plain and unambiguous, there is no need to resort to statutory construction. An appellate court merely interprets the language as it appears;

[339 P.3d 771]

it is not free to speculate and cannot read into the statute language not readily found there.

3. When interpreting a statute to discern legislative intent, statutory language is an appellate court's paramount consideration because the best and only safe rule for ascertaining the intention of the makers of any written law is to abide by the language they have used.

4. K.S.A. 59–617 functions as a statute of limitations prohibiting the admission of a will to probate more than 6 months after a testator's death.

5. K.S.A. 59–618 contains the probate code's only exception to the 6–month time limit provided in K.S.A. 59–617. The knowing withholding of a will is an essential condition that must occur before a will can be admitted to probate under K.S.A. 59–618 after the 6–month time limit has expired.

6. Kansas' long-favored policy of probating all legally executed wills is qualified by the time limit provided in K.S.A. 59–617.

7. Supreme Court Rule 7.07(b) (2013 Kan. Ct. R. Annot. 67) authorizes an appellate court to award attorney fees for services on appeal in cases in which the district court has authority to award such fees. If a party would be entitled to appellate attorney fees, it must timely file a motion under Rule 7.07(b) to preserve the right to those fees.

8. K.S.A. 59–1504 requires a district court to award attorney fees to a party who successfully opposes the probate of a will. Such an award is payable out of the estate and must be just and proper.

9. K.S.A. 59–2214 requires the district court to tax the costs of probate against the estate unless it appears it would be unjust and inequitable to do so. Attorney fees may be taxed as costs against the estate. But the general costs provision in K.S.A. 59–2214 is trumped by the specific provision in K.S.A. 59–1504 that mandates when and how attorney fees are paid.

David P. Troup, of Weary Davis, L.C., of Junction City, argued the cause and was on the briefs for appellant Janet Pralle.

Joseph A. Knopp, of Knopp and Bannister, P.A., of Manhattan, argued the cause and was on the brief for appellees Roger Strader and Regina Crowell.

John McNish, of Bolton & McNish, LLC, of Marysville, argued the cause and was on the briefs for appellee Eric Strader.

William C. O'Keefe, of Seneca, was on the brief for appellee Estate of Betty Jo Strader.

The opinion of the court was delivered by NUSS, C.J.:

Per the general rule stated in K.S.A. 59–617, no will is effective unless a petition is filed for probate of the will within 6 months of the date of the testator's death. The Marshall County District Court nevertheless admitted Betty Jo Strader's will to probate when it was found in her attorney's office more than 4 years after her death and court intestacy proceedings were well underway. One of Betty Jo's five adult children, Janet Pralle, appealed the admission of the will.

A panel of the Court of Appeals affirmed the district court, relying upon its interpretation of K.S.A. 59–618, which is an exception to K.S.A. 59–617's general rule. We granted Janet's petition for review, in part to resolve differences in interpretation of the statutory exception by various panels of the Court of Appeals.

We agree with Janet that a required element of the statutory exception allowing late filing is for the will to have been “knowingly withheld” from the probate court. And here the will was not knowingly withheld. So we reverse the decisions of the district court and the panel. We also grant Janet's request for her attorney fees and costs incurred on appeal to our court.


Betty Jo Strader died in Blue Rapids, Kansas, on October 19, 2006, leaving an estate valued at approximately $1.3 million. She is survived by five adult children: sons Roger Strader, Alan Strader, and Eric Strader, and daughters Janet Pralle and Regina Crowell.

[339 P.3d 772]

Betty Jo and her husband D. Gerald Strader properly executed separate mutual wills on August 28, 1985. Gerald died soon after, and his estate passed to Betty Jo. Her will devises the real and personal property related to the family oil well drilling business to Roger, Alan, and Eric, who run the enterprise. It also divides the family farm and any residual real and personal property among all five children equally.

About a week after Betty Jo's death in October 2006, her family began searching for her will. They searched her home and safety deposit box. They also contacted the law firm of Galloway, Wiegers, and Brinegar, P.A., the successor to the firm that prepared Betty Jo's will in 1985. But they could not find an executed copy of her will.

On December 27, 2006, Eric then filed a petition for letters of administration in Marshall County District Court alleging Betty Jo had died intestate. Jerry Weis was appointed administrator and granted letters of administration by the magistrate judge. Over Janet's objection, the magistrate also granted Weis' petitions to pay a $10,000 employment bonus to Eric out of the estate and to privately sell some of the estate's personal and real property to Eric and Roger.

Janet appealed to the district court, which dismissed the case for lack of jurisdiction. But a panel of the Court of Appeals reversed and remanded for a ruling on the merits. In re Estate of Strader, No. 101,195, 2010 WL 1882146 (Kan.App.2010) (unpublished opinion).

On remand, the district court ordered that all of the estate's property be sold at public auction. But before the auctions could occur, around February 16, 2011, Galloway, Wiegers, and Brinegar, P.A., contacted Bill O'Keefe—who had replaced Weis as administrator. The firm informed O'Keefe that Betty Jo's executed will had been found in a lock box at its office “[d]uring a recent review of old files and general housekeeping.”

Within the week, Eric filed petitions with the court to probate Betty Jo's will and to stay the public auctions. He argued her will should be admitted to probate under K.S.A. 59–618's exception to the 6–month time limit in K.S.A. 59–617. Janet objected, arguing the will could not be admitted to probate because it was filed 52 months after Betty Jo's death—well beyond the 6–month deadline. Janet further argued K.S.A 59–618's exception to this time limit did not apply because Betty Jo's will was not the type covered by that statute, i.e., it was not a “knowingly withheld” will.

After a hearing, the district court admitted Betty Jo's will to probate, relying on In re Estate of Tracy, 36 Kan.App.2d 401, 140 P.3d 1045 (2006). There, a panel of the Court of Appeals interpreted K.S.A. 59–618 to allow the probate of a lost will 3 days after the 6–month time limit in K.S.A. 59–617 had expired. The Tracy panel stated:

“The legislative intent of K.S.A. 59–618 is to submit every legally executed will to probate. It imposes a penalty on those who wrongfully withhold a will, but also provides an exception for innocent beneficiaries, allowing them to submit a will to probate beyond the 6–month time limit if they do so within 90 days after having knowledge of the existence of the will.” 36 Kan.App.2d 401, Syl. ¶ 10, 140 P.3d 1045.

After quoting this language, the district court opined: “[T]hat's exactly what we are confronted with in this case, and that decision [ Tracy ] disposes of the issues raised.” It also found that Betty Jo's will had not been knowingly withheld from probate, but stated that “such a finding is not necessary as to an innocent beneficiary under K.S.A. 59–618.” Accordingly, the will was admitted, and Janet appealed.

Before the Court of Appeals panel, Janet advocated a plain reading of K.S.A. 59–618, urging reversal of the district court's admission of the will to probate because the will had not been knowingly withheld. Her responsive siblings, together with administrator O'Keefe, generally argued that K.S.A. 59–618 does not require the knowing withholding of a will. Moreover, they claimed any innocent beneficiary can use the statute to admit a will to probate when more than 6 months have passed since the testator's death.

Relying on Tracy, a majority of the panel affirmed the district court.

[339 P.3d 773]

In re Estate of Strader, 47 Kan.App.2d 374, 383, 277 P.3d 1163 (2012). But Chief Judge Richard D. Greene dissented, relying principally on an opinion he had authored for another panel: In re Estate of Seth, 40 Kan.App.2d 824, 196 P.3d 402 (2008). The Seth panel interpreted K.S.A. 59–618 to require a knowing withholding before a will can be admitted to probate after the 6–month time limit has expired. Strader, 47 Kan.App.2d at 381–83, 277 P.3d 1163 (Greene, J., dissenting).

In light of the apparent conflict between Tracy and Seth, this court granted Janet's petition for review pursuant to K.S.A. 20–3018(b), establishing our jurisdiction under K.S.A. 60–2101(b).

Issue 1: The district court erred by admitting Betty Jo's will to probate under K.S.A. 59–618 after the 6–month time limit in K.S.A. 59–617 had expired because her will was not knowingly withheld.

Janet argues that the plain language of both K.S.A. 59–617 and K.S.A. 59–618 easily resolves this issue. She contends Betty Jo's will should not have been admitted to probate because it clearly was not admitted within the 6–month time limit set out in K.S.A. 59–617. She additionally contends K.S.A. 59–618's exception allowing late filing could not apply...

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1 cases
  • In re Estate of Strader, 105,964.
    • United States
    • United States State Supreme Court of Kansas
    • 12 d5 Dezembro d5 2014
    ...301 Kan. 50339 P.3d 769In the Matter of the ESTATE OF Betty Jo STRADER, Deceased.105,964.Supreme Court of Kansas.Dec. 12, 2014.David P. Troup, of Weary Davis, L.C., of Junction City, argued the cause and was on the briefs for appellant Janet Pralle.Joseph A. Knopp, of Knopp and Bannister, P......

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