Osborn v. Cassity

¶1(dissenting): In my opinion the judgment of the trial court should be affirmed. That the probate court had jurisdiction to determine whether the widow was bound by her “release” is too clear to need comment. In its opinion this court says that question may not be inquired into when the proceeding is first commenced— it does not indicate when the probate court does have jurisdiction to hear the matter. In In re Estate of Hoover, 156 Kan. 31, 131 P. 2d 917, a proceeding similar to that under consideration was before the probate court. The essential difference was that the notice of hearing contained no reference to the postnuptial contract there involved. This court did not hold the probate court was without jurisdiction, but on the contrary placed its decision solely on the failure of the proponent of the will to give notice, a thing of no consequence if the court had no jurisdiction. The most that can be said against the procedure followed in the instant case, and it apparently was followed in reliance on the Hoover case, was that the question of the sufficiency of the widow’s release was prematurely raised. That did not rob the probate court of jurisdiction. See Moore v. Graham, 151 Kan. 193, 197, 98 P. 2d 111, where it was contended a judgment was void because of premature filing of the action. It was there said the matter could have been raised by answer and that the mere fact that there was a fact which had it been pleaded would have been a defense, did not take away from the court jurisdiction over the subject matter.