113 P.2d 1045 | Kan. | 1941
The opinion of the court was delivered by
This was an action to recover against an estate on a claim based on a contention that certain funds in the possession of the decedent for many years were impressed with a trust in favor of the plaintiffs. The administrator, defendant in the action, demurred to the petition. This appeal is from an order sustaining the demurrer. There were originally two plaintiffs, but one of them assigned his interest to the other, and the remaining plaintiff is the only appellant.
The petition, filed on April 24, 1940, alleged, in substance, that T. D. Leinbach, a resident of Pottawatomie county, died testate in
The defendant demurred to the petition on the grounds that the court was without jurisdiction of the subject matter, that the petition did not state a cause of action and that the demand was barred by the statutes of limitation. The demurrer was sustained apparently on all three grounds.
We proceed at once to the question of whether the demand was barred. The conclusion stated on that question makes it unnecessary to consider the questions relating to the proper construction of the will of T. D. Leinbach.
The testator died in March, 1917. If appellant is correct in her interpretation of the will, she became entitled to the bequest of $4,000 when the testator’s son, Perry, died in July, 1918, without reaching the age of thirty-five and having no children. Although appellant contends that after July, 1918, the executrix held this bequest in trust for her benefit, she alleges that she never made any demand upon her for it, and by asking for interest from September 1, 1918, she alleges in effect that she received no income from the bequest. This covers a period of almost twenty-one years, and until the death of Celinda Leinbach on April 24, 1939. Appellee was
The present probate code went into effect on July 1, 1939. Many sections of the prior law relating to the allowance of demands against estates were repealed, and in sections 212 to 217, inclusive (Laws 1939, ch. 180), now appearing as G. S. 1939 Supp., 59-2236 to 59-2241, inclusive, provision was made for a more simplified and certain procedure in the matter. Section 59-2239, while designated as a “nonclaim statute,” is also clearly a statute of limitations, enacted with the evident purpose of providing for expeditious closing of estates, with the interests and rights of all persons concerned definitely determined. It provides that all demands not exhibited as provided in the act (G. S. 1939 Supp. 59-2237, 59-2238.) “within nine months after the date of the first published notice to creditors as herein provided, shall be forever barred from payment.” The section then provides — omitting certain provisions not here involved —as follows:
"In any estate in the process of administration at the time of the taking effect of this act in which any executor or administrator has not been discharged, all demands, including demands of the state, whether due or to become due, whether absolute or contingent, including any demands 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 taking effect of this act shall be forever barred from payment by any such executor or administrator unless a provision of a will requires payment of any such demand exhibited later. This section applies to both domiciliary and ancillary administration.” (Italics ours.)
The provision clearly applies to the instant claim. The estate had been in the process of administration for more than two months when the new code went into effect. No demand was made until this action was filed on April 24,1940, nine months and twenty-four days after July 1, 1939. Appellant contends that in order for the administrator of the estate to take advantage of the nine months’ limitation period in the new code, it was necessary for him to publish a new notice of his appointment, containing the notice to creditors as provided in section 59-2236, supra. But the provisions of section 59-2239, supra, contains no such requirement. The pro
Appellant’s demand being barred by the provisions of G. S. 1939 Supp., 59-2239, it is unnecessary to consider her other contentions. The demurrer was properly sustained. The judgment is affirmed.