In re Reed's Estate

• Decision Date: 06 November 1943
• Docket Number: 35971.
• Citation: 157 Kan. 602,142 P.2d 824
• Parties: In re REED'S ESTATE. v. MILLER. REED
• Court: Kansas Supreme Court

142 P.2d 824

157 Kan. 602

In re REED'S ESTATE.

REED v. MILLER.

No. 35971.

Supreme Court of Kansas

November 6, 1943

Syllabus by the Court.

An order sustaining a motion to strike allegations involving merits of action and pleaded in answer as a defense is tantamount to sustaining of a demurrer, precludes defense so pleaded, and is appealable.

An order sustaining motion to strike allegations of answer which is tantamount to sustaining of demurrer, is not such a "final judgment" or "order" as to deprive trial court of authority to permit filing of amended answer even at subsequent term.

In proceeding to probate will, inquiry is limited to question whether instrument is entitled to probate, and prior to determination of question, orders relating to proceedings incident thereto are not res judicata.

The statute requiring application for probate of will to be filed within one year from testator's death is a statute of general limitation and is remedial, notwithstanding it is found in Code of Probate Procedure and possesses procedural features. Gen. St.Supp.1941, 59-617, 59-618.

A statute may impose a limitation of time even upon assertion of a right theretofore having no limitation upon its assertion, or a different limitation if a time reasonable in view of subject matter be given.

The statute providing that repeal of a statute does not affect rights accrued or proceedings commenced under repealed statute becomes a part of every repealing statute that does not specifically state it is to have a retrospective effect. Gen.St.1935, 77-201, subd. 1.

The Legislature presumably intends to pass a valid act, and statute should be construed to be valid if possible.

There are no vested rights to any particular remedy or procedure.

Statutes of limitation affect the remedy only and do not impair rights or obligations.

Legislature may enact a statute placing a limitation as to time for filing of application for admission of will to probate notwithstanding prior statute fixed a different limitation so long as reasonable time is given for commencement of proceeding for that purpose before bar of new statute takes effect.

A statute operates prospectively unless legislative intention to make statute operate retrospectively clearly appears.

Where testator died prior to July 1, 1939, the effective date of Probate Code, but proceeding to probate will was not commenced until after that date, Probate Code governed in determining whether will was entitled to probate, and the rights of persons who withheld it from probate. Gen.St.Supp.1941, 59-617, 59-618.

In probating will of testator who died prior to July 1, 1939 the effective date of Probate Code, proponent has reasonable time in which to present will for probate, which time in no event exceeds a period of more than one year from July 1, 1939. Gen.St.Supp.1941, 59-617, 59-618.

When will of a testator who died prior to July 1, 1939, the effective date of Probate Code, is offered for probate after such date, all procedural questions arising in connection with such probate are governed by provisions of Probate Code. Gen. St.Supp.1941, 59-2602.

To commence a proceeding in probate court, initiating party must file a petition and cause such petition to be set down for hearing, since all proceedings therein are adversary, and the mere filing of petition without its being set down for hearing does not stop running of statute of limitation. Gen.St.Supp.1941, 59-617, 59-618, 59-2201, 59-2204.

Where application for probate of will was set down for hearing almost one and a half years after it had been filed, proceeding was barred by one-year statute of limitation, and probate court had no jurisdiction to admit such will to probate. Gen. St.Supp.1941, 59-617.

An heir's waiver of notice of hearing of petition for probate of will did not waive any substantive rights possessed by the heir and left proponent to sustain the burden of proving that will was entitled to probate under the Probate Code. Gen. St.Supp.1941, 59-617, 59-618, 59-2201, 59-2204.

1. A ruling sustaining a motion to strike allegations involving the merits of the action and pleaded in the answer is tantamount to the sustaining of a demurrer, precludes the defense so pleaded, and is an appealable order.

2. Where no final judgment has been rendered on the merits an order sustaining a demurrer to an answer--in this case a motion to strike tantamount to a demurrer--is not such a final judgment or order as to deprive the trial court of authority to permit the filing of an amended answer even at a term subsequent to the one at which the demurrer is sustained.

3. In a proceeding to probate a will the inquiry is limited to the question whether such instrument is entitled to probate, and prior to the determination of that issue orders relating to proceedings incident thereto are not res judicata.

4. A statute of limitation affects the remedy only, does not impair rights and obligations, and the Legislature has power to enact a statute placing a limitation as to time for the filing of an application for admission of a will to probate, even though a prior statute fixed a different limitation, so long as a reasonable time is given for the commencement of a proceeding for that purpose before the bar of the new statute takes effect.

5. Where a person died prior to July 1, 1939, the effective date of the Kansas Probate Code, leaving a will, but a proceeding to probate such will is not commenced until subsequent to that date; held, the provisions of G.S.1941 Supp., 59-617 and 59-618, not G.S.1935, 22-233, govern in determining (a) whether such will is entitled to probate, and (b) the rights of persons having possession thereof and withholding the same from probate.

6. Under the factual situation, and the sections of the statute, described in the preceding syllabus, a person has a reasonable time in which to present a will for probate, but that reasonable time in no event exceeds a period of more than one year from July 1, 1939.

7. When a will is presented for probate under the circumstances described in syllabus 5 and in the opinion, the provisions of G.S.1941 Supp. 59-2602 require that all procedural questions arising in connection with such probate proceedings be governed by the provisions of the new Kansas Probate Code.

8. In order to commence a proceeding in probate court the initiating party must: (a) file a petition, and (b) cause such petition to be set down for hearing.

9. The mere filing of a petition in a probate proceeding without action resulting in its being set down for hearing does not stop the running of the statute of limitations.

10. G.S.1941 Supp. 59-617 bars the will offered in the instant case from probate because the application and petition for probate was not set down for hearing within one year after the effective date of the new Kansas Probate Code.

Appeal from District Court, Shawnee County, Division No. 2; Paul H. Heinz, Judge.

In the matter of the estate of Emily G. Reed, deceased, wherein Stanley G. Reed sought to probate deceased's will and codicils. From an adverse judgment, Gertrude Reed Miller appeals.

Reversed.

James A. McClure, of Topeka (Robert Stone, Robert L. Webb, Beryl R. Johnson, and Ralph W. Oman, all of Topeka, on the brief), for appellant.

Tinkham Veale, of Topeka (John A. Etling and W. N. Beezley, both of Kinsley, on the brief), for appellee.

PARKER Justice.

This appeal arises from proceedings initiated in the probate court for the purpose of admitting a will to probate. Since appellant's notice of appeal and specification of errors relate only to the ruling of the district court sustaining a motion to strike certain paragraphs appearing in her second amended answer, the sole question presented is the propriety of the ruling on such motion.

Facts and proceedings pertinent to a determination of the question are: Emily G. Reed, a resident of Shawnee County, Kansas died on September 15, 1936, after having executed a will and two codicils thereto; her only heirs at law were the appellant, Gertrude Reed Miller, her daughter, and the appellee. Stanley G. Reed, her son; on September 14, 1939, the appellee filed in the probate court of Shawnee County, Kansas, the will and two codicils of his mother together with his petition for the probate of such will; it appears no further proceedings were had in probate court until January 24, 1941, when an instrument executed by appellant and denominated as a waiver of notice of hearing petition for probate was filed; thereafter, on March 12th following the probate court made an order admitting the will to probate; on December 8th of the same year appellant appealed from this order to the district court; on the 22nd of that month on motion of the appellee the district court required the appellant to file a pleading setting forth her grounds for opposing the admission of the will to probate; in compliance with such order the appellant filed answer on April 7, 1942, and thereafter filed an amended answer; on September 22, 1942, appellee demurred to the amended answer, which demurrer was overruled; on November 20th following appellee moved to strike certain paragraphs of the amended answer which motion was sustained; March 10, 1943, appellant appealed from that ruling to the Supreme Court but later dismissed the appeal and pursuant to leave of the district court filed on April 6, 1943, a second amended answer, hereinafter referred to; appellee then filed a motion to strike paragraphs 3, 4 and 4(a) from the second amended answer for the reason the allegations thereof were redundant, irrelevant and did not constitute a defense to the admitting of the will to probate; the district court sustained such motion and the appellant...