Printable Format59-2402a. Request for transfer of certain matters from district magistrate judge to district judge. (a) When a petition is filed in the district court and a district magistrate judge is assigned to hear such petition, any interested party may request the transfer of the matter to the chief judge for assignment to a district judge if the petition is:
(1) To admit a will to probate;
(2) to determine venue or a transfer of venue;
(3) to allow any claim exceeding $10,000 in value;
(4) for the sale, lease or mortgage of real estate;
(5) for conveyance of real estate under contract;
(6) for payment of a legacy or distributive share;
(7) for partial or final distribution;
(8) for an order compelling a legatee or distributee to refund;
(9) for an order to determine heirs, devisees or legatees; or
(10) for an order which involves construction of a will or other instrument.
(b) When a request for such transfer is filed less than three days prior to the commencement of the hearing, the court shall assess the costs occasioned by the subpoena and attendance of witnesses against the party seeking the transfer. Such request may be included in any petition, answer or other pleading, or may be filed as a separate petition, and shall include an allegation that a bona fide controversy exists and that the transfer is not sought for the purpose of vexation or delay. Notice of such request shall be given as ordered by the court.
History: L. 1945, ch. 237, § 1; L. 1951, ch. 345, § 1; L. 1976, ch. 242, § 57; L. 1977, ch. 112, § 20; L. 1986, ch. 115, § 85; L. 1999, ch. 57, § 49; L. 2006, ch. 56, § 3; L. 2023, ch. 77, § 14; July 1.
Law Review and Bar Journal References:
Comment on probate jurisdiction, 1 K.L.R. 329, 331 (1953).
1955-56 survey of law of administration of estates, Richard C. Harris, 5 K.L.R. 143, 144 (1956).
1956-57 survey of law of administration of estates, Richard C. Harris, 6 K.L.R. 123, 126 (1957).
Survey of law of administration of estates, Richard C. Harris, 12 K.L.R. 127, 129 (1963).
"Contested Estate Matters After Court Unification," Calvin J. Karlin, 48 J.B.A.K. 97, 102 (1979).
CASE ANNOTATIONS
1. Inapplicable to petition for administration of estate; transfer not authorized. In re Estate of Duel, 161 Kan. 593, 171 P.2d 271.
2. Construed; matters transferrable determined in exhaustive opinion. In re Estate of Hinshaw, 164 Kan. 550, 553, 557, 558, 562, 190 P.2d 386.
3. Applied; actions to enforce alleged trust and for an accounting. In re Estate of Dieter, 172 Kan. 359, 360, 239 P.2d 954.
4. Mentioned; appeal to supreme court dismissed; adverse party not given proper notice. In re Estate of Bergner, 173 Kan. 582, 584, 250 P.2d 781.
5. Mentioned; will properly attested; not prepared by attorney of principal beneficiary. In re Estate of Arney, 174 Kan. 64, 65, 254 P.2d 314.
6. Hearing for final settlement and accounting transferred to district court hereunder. In re Estate of Jones, 174 Kan. 506, 509, 257 P.2d 116.
7. Claim against estate for real property properly transferred to district court. In re Estate of Good, 175 Kan. 576, 577, 266 P.2d 719.
8. Mentioned; oil and gas in place is real property. In re Estate of Randolph, 175 Kan. 685, 686, 266 P.2d 315.
9. Construed; action to adjudicate title to realty; jurisdiction; distinction between transfer and certification of matter to district court. In re Estate of Slaven, 177 Kan. 185, 187, 189, 277 P.2d 580.
10. Mentioned; damage action for personal injuries; guest statute applied. In re Estate of Dikeman, 178 Kan. 188, 189, 284 P.2d 622.
11. Proper issues on offering will to probate discussed; written defenses only defense pleading proper under code. In re Estate of O'Leary, 180 Kan. 419, 420, 304 P.2d 547.
12. Automobile damage action; demurrer to evidence erroneously sustained. Haga v. Moss, Administrator, 181 Kan. 171, 172, 311 P.2d 281.
13. Action on claim for down payment on house; sustaining demurrer error. Witmer v. Estate of Brosius, 181 Kan. 200, 310 P.2d 937.
14. Code provides only for "written defenses"; motions and demurrers improper. In re Estate of Sims, 182 Kan. 374, 380, 321 P.2d 185.
15. Petitions for specific performance of contract to make will properly transferred to district court. In re Estate of Teeter, 184 Kan. 567, 568, 569, 570, 337 P.2d 691.
16. Petition for recovery of assets of estate not transferable to district court. In re Estate of Manweiler, 185 Kan. 343, 344, 345, 342 P.2d 730.
17. Probate proceeding; what pleadings proper in probate court and district court determined. In re Estate of Shirk, 186 Kan. 311, 313, 314, 350 P.2d 1.
18. Transfer to district court over objection of certain litigants approved. In re Estate of Barrier, 189 Kan. 278, 280, 369 P.2d 335.
19. Discussed; district court action to establish alleged personal property mortgage constituted demand; probate court jurisdiction. Shields v. Fink, Executrix, 190 Kan. 17, 29, 372 P.2d 252.
20. Petition for final settlement and construction of will; proceeding transferred to district court. In re Estate of Roberts, 190 Kan. 248, 252, 373 P.2d 165.
21. Automobile collision; claim against estate properly transferred to district court; counterclaim for wrongful death within district court's jurisdiction. In re Estate of Meyer, 191 Kan. 408, 409, 410, 411, 412, 413, 381 P.2d 546.
22. Petition to construe will and petition to invalidate it transferred to district court by motion of parties. In re Estate of Foster, 190 Kan. 498, 376 P.2d 784.
23. Petition challenging certain will provisions as violating rule against perpetuities is for construction of will and transferable; history and purpose of section discussed; phrase "which involves construction of will" construed. In re Estate of Freeman, 191 Kan. 503, 506, 508, 509, 510, 382 P.2d 483.
24. Tort action by nonresident against decedent's administrator; jurisdiction. Prater v. Poirier, 134 F. Supp. 499, 500.
25. Petition for removal did not constitute acquiescence in federal district court judgment. Holt v. King, 250 F.2d 671, 674.
26. Determination of validity of "Private Annuity Contract"; title conveyed. Hinchliffe v. Fischer, 198 Kan. 365, 367, 424 P.2d 581.
27. Specific performance of oral contract to devise in consideration of services. Roberts v. Coffey, Administrator, 198 Kan. 695, 696, 426 P.2d 30.
28. Claim for rental value of hotel furnishings unenforceable. Bowen, Administrator v. Lewis, 198 Kan. 706, 426 P.2d 244.
29. Proceeding to establish purported claim against estate transferred to district court; summary judgment upheld. In re Estate of Mullin, 201 Kan. 756, 760, 443 P.2d 331.
30. Order staying proceeding transferred hereunder pending action of federal court upheld. Henry, Administrator v. Stewart, 203 Kan. 289, 290, 291, 454 P.2d 7.
31. Right of election of surviving spouse not to take under will is personal and may not inure to heirs or representatives. In re Estate of Messenger, 208 Kan. 763, 769, 494 P.2d 1107.
32. Alimony and child support obligations do not survive death of husband absent clear intent in separation agreement. In re Estate of Sweeney, 210 Kan. 216, 221, 499 P.2d 56.
33. Action to determine whether heirs of deceased beneficiary succeeded to that beneficiary's interest transferred to district court hereunder. In re Estate of Thompson, 213 Kan. 704, 705, 518 P.2d 393.
34. Cited; action for garnishment of insurer; automobile liability policy not true asset of deceased insured's estate. Nichols v. Marshall, 491 F.2d 177, 180.
35. Transfer of proceeding to construe residuary clause of will hereunder; lapsed gift divided proportionately. In re Estate of Coleman, 2 Kan. App. 2d 567, 568, 584 P.2d 1255.
36. Mentioned; if language of will is clear the court should not employ rules of judicial construction; effect of changed circumstances. In re Estate of Wernet, 226 Kan. 97, 98, 596 P.2d 137.