Wood's Estate, In re, 44627

• Decision Date: 04 March 1967
• Docket Number: No. 44627,44627
• Citation: 424 P.2d 528,198 Kan. 313
• Parties: In the Matter of the ESTATE of Franklin L. WOOD, Deceased. Thomas A. VALENTINE, Appellant, v. Tom CUNNINGHAM, Administrator of the Estate of Franklin L. Wood, Appellee.
• Court: Kansas Supreme Court

Page 528

424 P.2d 528

198 Kan. 313

In the Matter of the ESTATE of Franklin L. WOOD, Deceased.

Thomas A. VALENTINE, Appellant, v. Tom CUNNINGHAM, Administrator of the Estate of Franklin L.

Wood, Appellee.

No. 44627.

Supreme Court of Kansas.

March 4, 1967.

Rehearing Denied March 31, 1967.

Syllabus by the Court

1. Statutes of limitation are usually considered to be remedial rather than substantive, in that the legal remedy alone is barred and not the right.

2. K.S.A. 59-2239 relating to filing claims against a decedent's estate is a statute of limitation and is within the purview of the exception expressed in K.S.A. 60-501.

3. A right to commence a civil action against a tort-feasor if not barred by the general statutes of limitation at the date of the tort-feasor's death must be filed in the probate court which holds the exclusive original jurisdiction and K.S.A. 59-2239 then becomes the applicable statute of limitation to be applied.

4. A tort claim which is not barred at the date of the tort-feasor's death by the general statutes of limitation may be filed in the probate court at any time within the limitations prescribed by K.S.A. 59-2239 and it is held: Appellant's demand was not barred by the applicable statute of limitation.

Jack N. Turner, Wichita, argued the cause and was on the brief for appellant.

Robert J. O'Connaor, Wichita, argued the cause, and A. W. Hershberger, Richard Jones, William P. Thompson, H. E. Jones, Jerome E. Jones, Robert J. Roth, and William R. Smith, Wichita, were with him on the brief for appellee.

FROMME, Justice.

This appeal is from an order of the district court dismissing a petition for allowance of a demand against the estate of Franklin L. Wood, deceased, and arises out of the following facts.

Plaintiff Thomas A. Valentine was injured in an auto accident. He was nineteen years of age when the accident occurred.

Franklin L. Wood was driving the order car involved in this accident. Wood died and proceedings were filed in the probate court to administer his estate. Tom Cunningham was appointed administrator for the estate.

The plaintiff filed a petition for allowance of demand in the probate court. This demand was based upon a tort claim for injuries received by plaintiff in the automobile accident. Plaintiff was born on December 8, 1942 and celebrated his twenty-first birthday on December 8, 1963.

The petition was properly certified to the district court. The administrator then filed a motion to dismiss the petition on the ground the claim was barred by the statute of limitations K.S.A. 60-513 as extended by 60-515. The motion to dismiss was sustained by the district court and the petitioner perfected his appeal therefrom.

The following chronology of events is important to understand the one question involved in the appeal:

January 13, 1962, the car accident occurred;

December 8, 1963, the plaintiff became 21 years old;

January 27, 1964, Franklin L. Wood died;

May 16, 1964, the administrator published first notice to creditors;

December 8, 1964, one year expired after plaintiff reached majority;

December 14, 1964, plaintiff filed his claim;

February 16, 1965, was the final day for filing claims.

The action for damages arising from this accident would be barred on January 13, 1964. (K.S.A. 60-513(4)) However, plaintiff was a minor at the time of the accident and he would be entitled to bring the action any time before December 8, 1964. (K.S.A. 60-515(a)) The prospective defendant died on January 27, 1964, and an administrator was appointed who published first notice to creditors on May 16, 1964. Plaintiff filed his claim in the probate court within the time specified by the nonclaim statute K.S.A. 59-2239 but it was filed six days after the time prescribed at K.S.A. 60-513(4) as extended by K.S.A. 60-515(a).

Therefore we have the question presented squarely for the first time of whether the nonclaim statute K.S.A. 59-2239 has the effect of enlarging the time in which a claim may be filed against a decedent's estate when the bar of the statute of limitation provided by K.S.A. 60-501 et seq. falls after the death of the tort-feasor but before the claim is filed against the estate of the decedent.

The following statutes are of primary concern to understand the question.

K.S.A. 60-501: 'The provisions of this article govern the limitation of time for commencing civil actions, except where a different limitation is specifically provided by statute.'

K.S.A. 60-513: 'The following actions shall be brought within two (2) years: * * * (4) An action for for injury to the rights of another, not arising on contract, and not herein enumerated. * * *'

K.S.A. 60-515(a): 'If any person entitled to bring an action, other than for the recovery of real property or a penalty or a forfeiture, at the time the cause of action accrued, or at any time during the period the statute of limitations is running, be within the age of twenty-one (21) years, or insane, or imprisoned for a term less than his natural life, such person shall be entitled to bring such action within one (1) year after such disability shall be removed, but no such action shall be maintained by or on behalf of any person under the disabilities specified after twenty-two (22) years from the time the cause of action shall have accrued.'

The above statutes will be referred to as general statutes of limitation and the following as the nonclaim statute.

K.S.A. 59-2239: 'All demands, including demands of the state, against a decedent's estate, whether due or to become due, whether absolute or contingent, including any demand arising from or out of any statutory liability of decedent or on account of or arising from any liability as surety, guarantor, or indemnitor and including the individual demands of executors and administrators, not exhibited as required by this act within nine months after the date of the first published notice to creditors as herein provided, shall be forever barred from payment: Provided, That the provisions of the testator's will requiring the payment of a demand exhibited later shall control. No creditor shall have any claim against or lien upon the property of a decedent other than liens existing at the date of his death, unless an executor or administrator of his estate has been appointed within one year after the death of the decedent and such creditor shall have exhibited his demand in the manner and within the time herein prescribed.'

The authorities are not in accord on the question of whether nonclaim statutes may be given effect to enlarge the period prescribed by general statutes of limitation, when a cause of action has accrued during the decedent's lifetime but death occurs before expiration of the limitation period. (See 21 Am.Jur. Executors and Administrators § 925; 34 C.J.S. Executors and Administrators § 732 c.)

This court has held the time for bringing actions as limited by K.S.A. 60-501 et seq. may be reduced or limited by the provisions of K.S.A. 59-2239. In Gebers v. Marquart, 166 Kan. 604, 609, 203 P.2d 125, 128, this court said:

'* * * If claims or demands against the estate of a resident decedent dying intestate are to be proved and enforced in this state administration of such decedent's estate is necessary and required. Indeed we have expressly so held. On pages 394 and 395, of the opinion in Gantz v. Bondurant, 159 Kan. 389, 155 P.2d 450, the following statement appears:

"It is true that in the instant case appellee took no steps to have her husband's (Chester's) estate administered. That fact, however, did not relieve the father or any other person having a claim upon the property of Chester's estate from having an administrator appointed within one year after Chester's death in order that he might assert the same in the manner and with the time prescribed. G.S.1943 Supp. 59-2239; In re Estate of Dumback, 154 Kan. 501, 119 P.2d 476." (p. 394, 155 P.2d p. 128.)

In the final paragraph of Gebers v. Marquart, supra, the court said:

'Finally appellant urges that under our code of civil procedure, G.S.1935, 60-306, a suit to set aside a conveyance may be brought within two years. This argument, so far as she is concerned, entirely overlooks the fact she is asserting a claim against the estate of a deceased person in probate court which, under our decisions, Burns v. Dranke (157 Kan. 367, 139 P.2d 386), supra, In re Estate of Bourke, 159 Kan. 553, 156 P.2d 501, 157 A.L.R. 1107, must be exhibited within the nine months' period specified in G.S.1947 Supp. 59-2239, in order to avoid being forever barred, also G.S.1935, 60-303, providing that where, in special cases, a different limitation is prescribed by statute the action is governed by such limitation.'

Article 5 of the code of civil procedure dealing with limitations of actions contains twenty-one separate sections relating to various types of claims and special groups of individuals such as those under legal disability. The first section of the article, K.S.A. 60-501, provides that the article shall govern the limitation of time for commencing civil actions, except where a different limitation is specifically provided by statute. This leads us to the question of whether the nonclaim statutes, K.S.A. 59-2239, is a statute of limitations as contemplated in the above exception. We believe it is. The court in In re Estatge of Kruse, 170 Kan. 429, 434, 226 P.2d 835, 839, said:

'Down through the years there have been a number of provisions in our law relative to the filing of claims against estates of deceased persons. Each has fixed a time limitation for filing. The legislative trend has been to shorten the time within which claims may be field, with the obvious purpose of providing for more expeditious closing of estates to the end that the interests and rights of all parties concerned be definitely determined. We think that section 2239, supra, while designated as a 'Nonclaim statute,' is also clearly a statute...