Anderson v. Miller
| Decision Date | 11 March 1958 |
| Docket Number | No. 37488,37488 |
| Citation | 324 P.2d 856,1958 OK 67 |
| Parties | Charles E. ANDERSON, Administrator of the Estate of Arne N. Anderson, deceased, Plaintiff in Error, v. Mabel MILLER, Anna E. Ryan, and Ethel Anderson Shane, Defendants in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. In probate proceedings involving the estate of a decedent where notice of hearing of final account and petition for distribution of estate has been given as provided by statute, each of the heirs of the decedent who did not participate in the proceedings in county court in any way, did not appear therein, either in person or by attorney, filed no pleadings therein, joined no issue with any party, and in no way made themselves a party to the record or to the proceedings, was a 'person interested in the estate or funds affected by the decree or order, who was not a party to the special proceeding in which it was made, but who was entitled by law to be heard therein, upon his application' authorized to appeal by 58 O.S.1951 § 723 and, if not present at the hearing, entitled to 30 days within which to perfect such appeal under 58 O.S.1951 § 724.
2. Record examined and held: That the order and judgment of the district court, upon trial de novo on appeal from the county court, fixing attorney fees in probate matter at 25% of the distributive shares of certain heirs, was not clearly against the weight of the evidence or an abuse of discretion, under the facts in this case, defendants in error having filed no cross-appeal.
Appeal from the District Court of Kay County; Geo. Howard Wilson, Judge.
Appeal by administrator of estate from judgment of District Court modifying order of County Court awarding attorney fees. Affirmed.
Wayne W. Bayless, Oklahoma City, G. C. Shillers, G. C. Spillers, Jr., Tulsa, for plaintiff in error.
I. D. Ross, David Ross (of Ross & Ross), Newkirk, for defendants in error.
This is an appeal by Charles E. Anderson, administrator of the estate of Arne N. Anderson, deceased, from a judgment of the District Court of Kay County, which involved an appeal by Mabel Miller, Anna E. Ryan and Ethel Anderson Shane, hereinafter referred to as defendants in error, from an order or judgment of the County Court of Kay County, allowing certain attorney fees in connection with the estate of said deceased, and charging a portion of such fees against the shares and amounts awarded defendants in error as heirs of said deceased.
Plaintiff in error filed his final account and petition for distribution of the estate of Arne N. Anderson, deceased, on April 6, 1955, and an order was entered fixing the date of the hearing thereon as May 2, 1955. Notice of the hearing was given by publication and by notice mailed to the heirs at law of the deceased, as required by statute. The final account and petition for distribution, as filed, itemized a number of expenses including some expenses of the attorneys involved, and recited that after paying the same there would be the sum of $94,210.19 in the hands of the administrator ready for distribution to the heirs at law of the deceased. On April 26, six days before the hearing set for May 2, the attorneys involved filed an application for attorneys' fees and reimbursement for expenses. Such application recited the contracts the attorneys had with most of the heirs of the deceased and a resume of the work they had done. As to the three defendants in error, with whom the attorneys had no contract, the application recites:
The application then prays for an attorney fee of 50%. It does not appear that any order setting such application for hearing was entered or that any notice was given of the filing of such application or of the hearing thereof. On the date of the hearing, May 2, 1955, the three defendants in error were not present at the hearing, and some time thereafter learned that the county court, in its decree of distribution of the estate, had awarded each of them as their respective distributive shares of the estate, the sum of $2,871.40, less attorney fees of $1,435.70 to be deducted from each such share, the attorney fees allowed being 50% of the whole amount awarded said heirs. On May 26, 1955, notice of appeal from the order of distribution was filed by each of said defendants in error. Pursuant to the notice, an appeal was lodged in the district court, wherein a motion was filed by the administrator to dismiss the appeal from the county court on the ground that the notice of appeal was not filed within the time fixed by statute. The motion to dismiss was overruled and there was a trial in the district court on the issue relating to the allowance of the attorney fees as against the share and estate of the defendants in error, who contended that they were not subject to the payment of any attorney fees.
The hearing in the district court resulted in a judgment modifying the order of the county court with respect to attorney fees by reducing the amount charged as attorney fees against the three defendants in error from 50% of the amount awarded them to $25% of their distributive shares. The administrator filed a motion for new trial and, on denial thereof, has perfected this appeal.
As his first assignment of error plaintiff in error alleges that the trial court erred in refusing to dismiss the purported appeal of the defendants in error from the county court for lack of jurisdiction. Plaintiff in error asserts that the notice of appeal filed by the defendants in error in the county court was not filed within the time prescribed by law, and that the district court was without jurisdiction in the matter. 58 O.S.1951 sec. 724 provides:
'An appeal by a party, or by a person interested who was present at the hearing, must be taken within ten days, and an appeal by a person interested, who was not a party and not present at the hearing, within thirty days from the date of the judgment, decree or order appeal from.'
Plaintiff in error contends that defendants in error were parties to the proceeding in the courty court on the hearing on the final account and distribution of the estate, and as such were limited to the ten day period of appeal fixed by the quoted statute. Defendants in error assert that they were persons interested, that they were not parties and not present at the hearing, and, therefore, were entitled to appeal from the order or distribution within thirty days, as specified in the latter portion of the quoted statute.
Plaintiff in error concedes that he has been unable to find any authority whatsoever upon the question...
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