The opinion of the court was delivered by
Hoch, J.:
In an action brought in district court, plaintiffs sought to impress a trust upon certain real estate in contravention of a devise made in a will, the cause of action being based upon an alleged oral agreement on the part of the testator. The defendants demurred on the grounds that the district court was without jurisdiction, that the petition did not state a cause of action and that another action was pending between the same parties and involving the same cause of action. The demurrer was overruled and defendants appeal.
Brief statement of the facts will suffice. Samuel Yeager, a resident of Kingman county, died testate on July 13, 1941. By the terms of his will executed June 23, 1941, he devised the real estate *735in question to his wife. In an original action in district court, the plaintiffs, children of the testator by a former marriage, alleged an oral agreement, made some years prior to the execution of the will, between Samuel Yeager and his'sister, who, it was alleged, was, at the time of the agreement, the owner of the land, under which it was agreed that the land would be devised to plaintiffs. It is not necessary to recite at length the averments by which the plaintiffs sought to establish the alleged oral contract, to impress a trust upon the land in contravention of the express terms of the will, and to require the defendant to reconvey the land to them. Admittedly, what they sought to accomplish was, in effect, to nullify the plain intent and purpose of the will by taking all beneficial interest in the real estate from the devisee and establishing it in themselves. In line with an unbroken series of decisions by this court it must be held that the action was in effect a “contest” of the will. If the rule long established in this state by these many decisions were to be disregarded, it might perhaps be argued that plaintiffs were not, technically, “contesting” the will, but were merely seeking to impress a trust on the realty in the hands of the devisee, which would leave her with only the bare legal title (which title plaintiffs ask to have “reconveyed” to them). Our forthright decisions, at variance with that academic view, have held that any action whose plain and essential purpose is to get rid of a will — to effect a result contrary to the obvious intent of the testator—is an action “to contest” the will and can only be brought in conformity with the statutes dealing with the contest of wills. (Axe v. Wilson, 150 Kan. 794, 96 P. 2d 880; Rishel v. McPherson Co., 122 Kan. 741, 253 Pac. 586; rehearing, 123 Kan. 414, 255 Pac. 979, 124 Kan. 31, 257 Pac. 939; Mayer v. Taylor, 142 Kan. 54, 57, 45 P. 2d 858; Kunze v. Kunze, 145 Kan. 72, 64 P. 2d 558; Koch v. Wolf, 146 Kan. 247, 62 P. 2d 1088.) In Rishel v. McPherson Co., supra, wherein an heir sought to recover property on the ground that a will which cut her off, if valid, was procured by fraud, it was held that “her remedy was by action to contest the will, and not to establish a constructive trust.” (Syl. ¶ 4.)
Did the district court have original jurisdiction to entertain the instant action, which was, in effect, an action to contest the will? That question was squarely determined in the negative in the recent case of Foss v. Wiles, 155 Kan. 262, 124 P. 2d 438. It was there held that under the present probate code which became effective July 1,1939, the probate court in which a will is offered for probate *736has exclusive original jurisdiction to entertain a proceeding to contest the will. The question was fully discussed in the opinion in that case and need not be discussed here. District courts now have jurisdiction in such matters only upon appeal. As was clearly pointed out, this denies no substantial right to those seeking to upset a will. It is merely a question of where they must first seek their remedy. If aggrieved by the decision of the probate court they may not only appeal to the district court, but under the provisions of the new code the district court, upon such appeal, is given “the same general jurisdiction and power as though the controversy had been commenced by action or proceeding in such court and as though such court would have had original jurisdiction of the matter,” and the court “may allow or require pleadings to be filed or amended.” (See G. S. 1941 Supp. 59-2408.)
It follows that the action should have been dismissed for lack of jurisdiction. It is unnecessary to discuss the other grounds set up in the demurrer.
The judgment is reversed with directions to dismiss the action.