dissent">Fromme, J.,

dissenting.

Due notice having been given, a final settlement of an estate made by the probate court pursuant to the *935probate code is a final order binding upon all persons interested in the estate, and the order of final settlement, if not appealed from, becomes final and conclusive against collateral attack. (In re Estate of Seeger, 208 Kan. 585, Syl. ¶ 1, 493 P. 2d 281.)

In the absence of evidence to the contrary, a decree of final settlement, closing a testate estate, should be construed to operate in conformance with the terms of the will and statutes pertaining to distribution of assets upon final settlement. (In re Estate of Seeger, supra, Syl. ¶3.)

Lorena Weigle as co-executor of her father’s estate included this property in the inventory and appraisal. By affidavit duly sworn before the probate judge she stated “. . . that the following described property as hereinafter listed and classified is a complete inventory of the estate of Henry J. Hoff, deceased which has come to my (our) possession or knowledge as such co-executors.” When the estate was closed the journal entry assigned the personal property under the residuary clause in the will to the two daughters, share and share alike.

If the appellees Weigel were olaiming this property listed in the inventory by Lorena Weigel and Irmina Oswald they were required, in my opinion, to file a claim in the estate, have it set for hearing and have the matter determined within the provisions of the claim statutes. Not having done so their claim was barred. Some weight is attached to the fact that Edgar M. Weigel was not an heir or legatee in the Henry J. Hoff Estate, however he was the husband of a co-executor and was living on the same farm. He was taking care of the cattle and did file the document “Agreement & Bill of Sale” with tibe probate court.

The statement of law contained in paragraph one of the syllabus of this case will raise many questions in an area of the law which has hertetofore been considered settled. In Shields v. Fink, Executrix, 190 Kan. 17, 372 P. 2d 252, it was held:

“. . . The foregoing section of the probate code provides in substance that no creditor shall have a lien upon property of the decedent, other than liens existing at the date of his death, unless an executor or administrator of his estate has been appointed and such creditor shall have exhibited his demand in the probate court in the manner and within the time prescribed in such section.” (Syl. f3 .)

As applied in Shieldsthis rule extends to the establishment and foreclosure of an alleged equitable mortgage on personal property. It was further stated in Shields:

*936“It was the intent and purpose of the framers of the Kansas probate code, and of the legislature which enacted it, to grant to the probate court exclusive original jurisdiction over all matters incident and ancillary to the control, management, administration, settlement and distribution, of decedents’ estates, including the exhibition and establishment of claims and irrespective of whether those claims be denominated legal or equitable, except as to any matter over which the probate code expressly confers concurrent jurisdiction upon the district court.” (190 Kan. p. 22.)

Under the holding set forth in the first paragraph of the syllabus, if tangible personal property is not in actual possession of a decedent at the tíme of his death, claim need not be made in the probate court. The opinion makes no allowance for that property to which a decedent may have a present right of possession but which property is being cared for by another, such as in this case. Confusion can only result from our present holding.

The nonclaim statute should be applied and the property should be divided under the residuary clause in the will and the terms of the journal entry of final settlement in the Estate of Henry J. Hoff.

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