Evert E. Freeman, Appellant, v. Johanette Peter et al., Appellees, 97 Kan. 63

The opinion of the court was delivered by Marshall, J.: Reinhardt Peter died in 1904, leaving a widow, Johanette Peter; three daughters, Bertha, Lucy and Carrie; and a son, Herman. The daughters were all married. Carrie, who afterwards died, left as her heirs two daughters, Nellie and Eva, and her husband, the plaintiff.

Upon returning from the funeral of Reinhardt Peter, Johanette produced the will before the assembled children and informed them the father had told her before his death that he had left 'all the property to her; that if they were not satisfied and did not want to take her word for it the will should be opened and they could see for themselves. To this the' children said they were satisfied and told her it was all right and not to file the will on account of the expense. The plaintiff was present and said he was satisfied to leave it that way.

From that time the will remained in the Peter home in the possession of Johanette Peter until September 15, 1913, when it was probated. There was no exception taken to the order of the probate court; no appeal was taken and no contest of the will has been instituted in the district court. The will was always in the house and any one interested could get it if they wanted it. All the estate of the testator, consisting of about forty-three acres of land in Wyandotte county, Kansas, was devised, to Johanette Peter in fee simple.

She has occupied the land, collected the rents and paid the taxes thereon continuously since the death of her husband. The plaintiff, as heir of his wife Carrie, claimed an undivided one-sixteenth interest in the land and brought this action to recover the same. On the trial the court rendered judgment for the defendants. The plaintiff appeals. The plaintiff contends that because the will was not offered for probate within three years after the death of the testator, the devisee, Johanette Peter, received nothing under the will, and that the land descended to the heirs of Reinhardt Peter.

This would be correct but for the conduct of the heirs. They with the plaintiff led defendant Johanette Peter to believe that it was not necessary to do anything with the will. She relied on their statements and acted on them. The plaintiff seeks to take advantage of the failure to have the will probated in proper time. He, personally and as heir of his deceased wife, is estopped from so doing.

The conversation between the widow, the plaintiff and the children of the testator partakes somewhat of the nature of a family settlement of the rights of the heirs in the property left by Reinhardt Peter, and under the circumstances surrounding this case that settlement should not be disturbed. The judgment is affirmed.