Appealable orders in cases involving decedents' estates, when; bond

59-2401. Appealable orders in cases involving decedents' estates, when; bond. (a) An appeal from a district magistrate judge to a district judge may be taken no later than 30 days from the date of entry of any of the following orders, judgments or decrees in any case involving a decedent's estate: (1) An order admitting or refusing to admit a will to probate. (2) An order finding or refusing to find that there is a valid consent to a will. (3) An order appointing, refusing to appoint, removing or refusing to remove a fiduciary other than a special administrator. (4) An order setting apart or refusing to set apart a homestead or other property, or making or refusing to make an allowance of exempt property to the spouse and minor children. (5) An order determining, refusing to determine, transferring or refusing to transfer venue. (6) An order allowing or disallowing a demand, in whole or in part, when the amount in controversy exceeds $10,000. (7) An order authorizing, refusing to authorize, confirming or refusing to confirm the sale, lease or mortgage of real estate. (8) An order directing or refusing to direct a conveyance or lease of real estate under contract. (9) Judgments for waste. (10) An order directing or refusing to direct the payment of a legacy or distributive share. (11) An order allowing or refusing to allow an account of a fiduciary or any part thereof. (12) A judgment or decree of partial or final distribution. (13) An order compelling or refusing to compel a legatee or distributee to refund. (14) An order compelling or refusing to compel payments or contributions of property required to satisfy the elective share of a surviving spouse pursuant to K.S.A. 59-6a201 et seq., and amendments thereto. (15) An order directing or refusing to direct an allowance for the expenses of administration. (16) An order vacating or refusing to vacate a previous appealable order, judgment, decree or decision. (17) A decree determining or refusing to determine the heirs, devisees and legatees. (18) An order adjudging a person in contempt pursuant to K.S.A. 59-6a201 et seq., and amendments thereto. (19) An order finding or refusing to find that there is a valid settlement agreement. (20) An order granting or denying final discharge of a fiduciary. (21) Any other final order, decision or judgment in a proceeding involving a decedent's estate. (b) An appeal from the district court to an appellate court taken pursuant to this section shall be taken in the manner provided by chapter 60 of the Kansas Statutes Annotated, and amendments thereto, for other civil cases. (c) Pending the determination of an appeal pursuant to subsection (a) or (b), any order appealed from shall continue in force unless modified by temporary orders entered by the court hearing the appeal. The supersedeas bond provided for in K.S.A. 60-2103, and amendments thereto, shall not stay proceedings under an appeal from the district court to an appellate court. (d) In an appeal taken pursuant to subsection (a) or (b), the court from which the appeal is taken may require an appropriate party, other than the state of Kansas, any subdivision thereof, and all cities and counties in this state, to file a bond in such sum and with such sureties as may be fixed and approved by the court to ensure that the appeal will be prosecuted without unnecessary delay and to ensure the payment of all judgments and any sums, damages and costs that may be adjudged against that party. History: L. 1939, ch. 180, § 269; L. 1965, ch. 346, § 48; L. 1976, ch. 243, § 43; L. 1976, ch. 242, § 55; L. 1977, ch. 112, § 18; L. 1987, ch. 211, § 3; L. 2000, ch. 25, § 8; L. 2002, ch. 114, § 61; L. 2006, ch. 56, § 2; L. 2023, ch. 77, § 13; July 1. Source or prior law: 22-223, 22-265, 22-1101, 38-228, 39-234, 76-1214. Law Review and Bar Journal References: Mentioned in survey of law of administration of estates, Richard C. Harris, 12 K.L.R. 127, 135 (1963). "Survey of Kansas Law: Wills, Trusts, and Probate," Richard C. Harris, 27 K.L.R. 365 (1979). "Contested Estate Matters After Court Unification," Calvin J. Karlin, 48 J.B.A.K. 97 (1979). "Kansas Appellate Advocacy: An Inside View of Common-Sense Strategy," Patrick Hughes, 66 J.K.B.A. No. 2, 26 (1997). "Waiting for Judgment Day: Negotiating the Interlocutory Appeal in 8 Easy Lessons," Jonathan Paretsky, 78 J.K.B.A. No. 4, 30 (2009). CASE ANNOTATIONS 1. Order allowing claim is appealable but appeal not perfected in time. Meech v. Grigsby, 153 Kan. 784, 790, 113 P.2d 1091. 2. Order requiring executor to file inventory and appraisement not an appealable order. In re Estate of Crawford, 154 Kan. 737, 738, 739, 121 P.2d 206. 3. Order striking from inventory items listed as debts due estate is appealable. In re Estate of Bush, 155 Kan. 556, 558, 127 P.2d 455. 4. Administratrix accepting favorable parts of order cannot appeal from remainder. Stephenson v. Stephenson, 156 Kan. 520, 134 P.2d 397. 5. Probate court's original exclusive jurisdiction over claims against decedents' estates determined. Egnatic v. Wollard, 156 Kan. 843, 855, 137 P.2d 188. 6. Administrator's right to expenses of appeal taken under this clause discussed. In re Estate of Eyth, 157 Kan. 268, 275, 139 P.2d 378. 7. Final settlement decree unappealed is binding adjudication of devisee's interest in real estate. Bitzer v. Smith, 158 Kan. 83, 87, 145 P.2d 148. 8. Probate court judgment distributing estate cannot be collaterally attacked. Cole v. Thacker, 158 Kan. 242, 251, 146 P.2d 665. 9. District court without appellate jurisdiction of will contest where will not objected to in probate court. In re Estate of Grindrod, 158 Kan. 345, 348, 357, 363, 365, 148 P.2d 278. 10. No particular language required to effectuate appeal; appeal from order of final settlement not limited in scope. In re Estate of Charles, 158 Kan. 460, 465, 148 P.2d 765. 11. Cited; order admitting will to probate not prima facie evidence of validity. In re Estate of Wallace, 158 Kan. 633, 637, 149 P.2d 595. 12. Probate court order setting aside homestead without notice to creditor held void. In re Estate of Schroeder, 158 Kan. 783, 785, 150 P.2d 173. 13. Appeal allowed although no evidence introduced in probate court after petition filed. In re Estate of Pallister, 159 Kan. 7, 10, 27, 29, 36, 152 P.2d 61. 14. District court without jurisdiction of heir's action to partition real estate, when. Felton v. Rubow, 163 Kan. 82, 84, 179 P.2d 935. 15. Cited; probate judge disqualified for probate hearing may fix appeal bond, when. Price v. Gibson, 165 Kan. 10, 21, 192 P.2d 219. 16. No right to jury trial on appeal from order denying restoration to capacity. Holder v. Jochems, 167 Kan. 83, 84, 204 P.2d 777. 17. Order refusing to appoint fiduciary is appealable; who may appeal. In re Estate of James, 168 Kan. 165, 166, 211 P.2d 123. 18. Order refusing to remove administrator is appealable. In re Estate of West, 169 Kan. 447, 456, 219 P.2d 418. 19. Discussed; demurrer held improper pleading to oppose demand in probate court. In re Estate of Fast, 170 Kan. 352, 353, 225 P.2d 1056. 20. No appeal from order of final distribution construing will; collateral attack denied. Bindley v. Mitchell, 170 Kan. 353, 657, 228 P.2d 689. 21. Probate court may punish for contempt; contempt order appealable, procedure. State v. Godsoe, 171 Kan. 230, 231, 230 P.2d 1012. 22. Order allowing accounting of executor is appealable. In re Estate of Hawk, 171 Kan. 478, 482, 483, 233 P.2d 1061. 23. Discussed; decree of court becomes final where appeal not properly taken. Eaton v. Doe, 172 Kan. 643, 657, 243 P.2d 236. 24. Jurisdiction of district court on appeal from order removing guardian; successor guardian proper party on appeal from order of removal; grounds for removal discussed. In re Estate of Osborn, 179 Kan. 365, 369, 295 P.2d 615. 25. Cited; state of Kansas held "party aggrieved" under K.S.A. 59-2404. In re Estate of Case, 180 Kan. 53, 57, 299 P.2d 589. 26. Administration; findings upon which administrator appointed; no appeal; conclusiveness. In re Estate of Johnson, 180 Kan. 740, 747, 308 P.2d 100. 27. Undue influence; findings supported by evidence conclusive on appeal. In re Estate of Eyman, 181 Kan. 90, 98, 309 P.2d 664. 28. K.S.A. 59-2401–59-2409, inclusive, adequately provide for appeal on jurisdictional questions. Sherk, Administratrix v. Sherk, 181 Kan. 297, 301, 310 P.2d 899. 29. Cited; striking of motion for judgment on pleadings upheld. In re Estate of Weidman, 181 Kan. 718, 724, 314 P.2d 327. 30. Code provides only for "written defenses"; motions and demurrers improper. In re Estate of Sims, 182 Kan. 374, 380, 321 P.2d 185. 31. Allowance of attorney fees for services rendered to nonresident ancillary executor made part of final settlement order; appeal not within time; rights of attorneys. In re Estate of Bertrand, 188 Kan. 531, 537, 363 P.2d 412. 32. Order refusing to transfer petition for construction of will to district court is "final decision" and appealable. In re Estate of Freeman, 191 Kan. 503, 506, 507, 382 P.2d 483. 33. Mentioned; claim of surviving spouse under antenuptial contract in conflict with provision of will held claim against estate. In re Estate of Sterba, 193 Kan. 56, 60, 392 P.2d 136. 34. Adoption proceedings appealed hereunder. In re Marsolf, 200 Kan. 128, 130, 434 P.2d 1010. 35. Mentioned; proceeding transferred to district court pursuant to K.S.A. 59-2402a; summary judgment upheld. In re Estate of Mullins, 201 Kan. 756, 760, 443 P.2d 331. 36. Petition in probate court for appointment of special administrator denied; purported appeal dismissed by district court under authority hereof. In re Estate of Lohse v. Rubow, 207 Kan. 36, 37, 483 P.2d 1048. 37. Appeals hereunder heard de novo in district court under K.S.A. 59-2408; material evidence on appeal. In re Estate of Weaver, 214 Kan. 550, 558, 520 P.2d 1330. 38. Where appeal from appointment or refusal to appoint executor under K.S.A. 59-2404, additional appeal hereunder not required; incidental. In re Estate of Teichgraeber, 217 Kan. 373, 375, 380, 384, 385, 387, 537 P.2d 174. 39. Applied; dismissal of appeal from order allowing fees for administrator and attorney error; reasonableness of fees to be determined. In re Estate of Moore, 219 Kan. 719, 725, 549 P.2d 981. 40. Cited; time for appeals from judgment and orders in probate cases commences from date order is signed by judge and filed with clerk of court. In re Estate of Burns, 227 Kan. 573, 574, 575, 608 P.2d 942. 41. When appeal is from order admitting a will to probate, filing of appeal bond is mandatory; issue of "timely filing" not reached. In re Estate of Kempkes, 4 Kan. App. 2d 154, 156, 159, 603 P.2d 642. 42. Cited in holding that order refusing to admit will to probate brings such order within the provisions of this section. In re Estate of Phillips, 4 Kan. App. 2d 256, 257, 258, 604 P.2d 747. 43. The filing of an appeal bond is required in a probate appeal, but is not jurisdictional and may be filed after the appeal is taken. In re Estate of Zahradnik, 6 Kan. App. 2d 84, 86, 88, 89, 626 P.2d 1211. 44. In action on joint and mutual will, out-of-time filing of appeal bond does not defeat jurisdiction where notice is timely filed and no prejudice results. In re Estate of Duncan, 7 Kan. App. 2d 196, 198, 638 P.2d 992 (1982). 45. Filing of appeal bond is mandatory; appellant was given ample opportunity and time to file bond. In re Adoption of Rice, 233 Kan. 617, 618, 664 P.2d 838 (1983). 46. Journal entry barring bankruptcy trustee from contesting probate of will (K.S.A. 59-2224) is order requiring timely appeal (K.S.A. 60-2103). In re Estate of Williams, 238 Kan. 651, 654, 656, 714 P.2d 948 (1986). 47. Motion for rehearing (Rule 7.05) different from reinstatement motion; no fixed time for filing appeal bond. In re Estate of Kern, 239 Kan. 8, 19, 716 P.2d 528 (1986). 48. Bond not necessary where controversy is whether quiet title action is proper remedy; appellant may file supersedeas bond (K.S.A. 60-2103). In re Estate of Beason, 248 Kan. 803, 811, 811 P.2d 848 (1991). 49. An appeal from a district magistrate judge's order in a probate matter must be filed within 30 days. In re Estate of Winslow, 21 Kan. App. 2d 691, 906 P.2d 182 (1995). 50. No error in trial court's setting aside estate agreement and previous order due to excusable neglect. In re Estate of Hessenflow, 21 Kan. App. 2d 761, 772, 909 P.2d 662 (1995). 51. District court is not prohibited from approving conservator's disbursements and accounting solely because bond untimely filed. In re Guardianship & Conservatorship of Heck, 22 Kan. App. 2d 135, 145, 913 P.2d 213 (1996). 52. Appeal of claim that statutory allowance was void due to administratrix's defective bond untimely filed. In re Estate of Harrison, 25 Kan. App. 2d 661, 668, 967 P.2d 1091 (1998). 53. Failure to appeal order confirming sale of homestead made question regarding homestead rights moot. In re Estate of Pritchard, 37 Kan. App. 2d 260, 278, 154 P.3d 24 (2007). 54. Discussion of appeal rights under chapter 60 versus the more liberal appeal rights under chapter 59. In re Adoption of A.A.T., 42 Kan. App. 2d 1, 210 P.3d 640 (2009). 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