Battle v. Mason, 36309

• Decision Date: 06 December 1955
• Docket Number: No. 36309,36309
• Citation: 293 P.2d 324
• Parties: James B. BATTLE, Jr., Executor, et al., Plaintiffs in Error, v. Magnolia MASON and Maude Hurst, Defendants in Error. In re MEADORS' ESTATE.
• Court: Oklahoma Supreme Court

Page 324

293 P.2d 324

1955 OK 356

James B. BATTLE, Jr., Executor, et al., Plaintiffs in Error, v. Magnolia MASON and Maude Hurst, Defendants in Error In re MEADORS' ESTATE.

No. 36309.

Supreme Court of Oklahoma.

Dec. 6, 1955.

Syllabus by the Court.

1. In a proceeding to contest the validity of a will, after the same has been admitted to probate, instituted in the county court pursuant to 58 O.S.1951 § 61, upon any of the grounds of contest provided by 58 O.S.1951 § 41, it is mandatory upon the contestant to 'file in the court in which the will was proved a sworn petition in writing containing his allegations, that evidence discovered since the probate of the will, the material facts of which must be set forth', shows the existence of the statutory ground or grounds for contest relied upon.

2. Will contests are of purely equitable cognizance, and upon appeal this court will examine the entire record and weigh the evidence, but the findings and judgment of the trial court will not be disturbed unless clearly against the weight of the evidence. When the judgment of the trial court is against the clear weight of the evidence, however, it is the duty of this court to render, or cause to be rendered, such judgment as should have been rendered in the trial court.

3. Record examined, and held, that the judgment of the district court sustaining the contest of the will is clearly against the weight of the evidence and must be reversed.

Appeal from the District Court of Oklahoma County; W. A. Carlile, Judge.

Action by petition in contest of will after probate. Upon de novo trial in district court after appeal from county court, the judgment of the district court sustained the contest and vacated probate of the will for lack of testamentary capacity, and proponents appeal. Reversed.

Embry, Crowe, Tolbert, Boxley & Johnson, by V. P. Crowe and Val R. Miller, George M. Nicholson, Looney, Watts, Ross, Looney & Nichols, Oklahoma City, for plaintiffs in error.

Cargill & Cargill, Charles Hill Johns, B. H. Carey, Wayne W. Bayless, Oklahoma City, for defendants in error.

WILLIAMS, Vice Chief Justice.

This appeal concerns a will contest. C. F. Meadors executed the will in question on May 5, 1950. Testator died on January 13, 1952, and on February 5, 1952, said will was admitted to probate by the County Court of Oklahoma County. On June 30, 1952, testator's two daughters by his first marriage, Magnolia Mason and Maude Hurst, filed their petition in contest of said will, and on February 9, 1953, filed their amendment thereto. On March 17, 1953, the county court denied the contest and refused to revoke the probate of said will. Contestants thereupon took an appeal to the district court, and the district court, after a trial de novo, reversed the county court and ordered probate of said will revoked. Proponents have in due course perfected their appeal to this court.

As their first proposition of error, proponents urge that the county court and the district court on appeal had no jurisdiction of the will contest on account of insufficiency of the petition in contest and lack of filing of a sufficient such petition within the time allowed by statute. The question was presented to the county court by motions to strike the entire contest, which were overruled. The same motions were presented to the district court at the commencement of the trial de novo, and again overruled, and proponents' objection to the jurisdiction of the court, based on the same grounds, was also overruled.

Our statutes provide two methods of contesting a will. 58 O.S.1951 § 41, provides for contest prior to probate and 58 O.S.1951 § 61, provides for contest after probate. The latter section, pursuant to which this contest was instituted, reads as follows:

'When a will has been admitted to probate, any person interested therein may at any time within one year after such probate, contest the same or the validity of the will. For that purpose he must file in the court in which the will was proved a sworn petition in writing containing his allegations, that evidence discovered since the probate of the will, the material facts of which must be set forth, shows:

'1. That a will of a later date than the one proved by the decedent, revoking or changing the former will, has been discovered, and is offered; or,

'2. That some jurisdictional fact was wanting in the former probate; or,

'3. That the testator was not competent, free from duress, menace, fraud, or undue influence when the will allowed was made; or,

'4. That the former will was not duly executed and attested.'

The original petition in contest, filed on June 30, 1952, merely shows that on a certain date the will of decedent was admitted to probate and that contestants are the only children of decedent, following which are five allegations of grounds of contest and a prayer that the probate of said will be set aside. Such petition contained no allegation that evidence discovered since the probate of the will showed any of the grounds for contest relied on nor did such petition set forth the material facts of any such evidence. It is even doubtful that such petition could properly be called a sworn petition. Such petition is signed at the end by contestants and there is attached thereto what appears to be a verification. Such verification is in the usual form and is prepared for both contestants, but does not appear to have been signed by either of them, although the jurat of the notary public which follows recites that it was subscribed and sworn to before such notary public. In any event, regardless of whether such petition is or is not sworn to as required by statute, it is otherwise fatally deficient as above pointed out, so that it was not sufficient to confer jurisdiction upon either the county or district courts. In re Impunnubbee's Estate, 49 Okl. 161, 152 P. 346. The syllabus in that case is as follows:

'In a proceeding to contest the validity of a will, after the same has been admitted to probate, instituted in the county court pursuant to section 6219, Rev.Laws 1910, by 'any person interested therein,' upon any of the grounds of contest provided by section 6210, Rev.Laws 1910, it is mandatory upon such person to 'file in the court in which the will was proved a sworn petition in writing containing his allegations, that evidence discovered since the probate of the will, the material facts of which must be set forth,' shows the existence of the statutory ground or grounds for contest relied upon to avoid the deed.'

The instrument filed by contestants on February 9, 1953, is denominated by them as an amendment to the petition in contest filed on June 30, 1952. Proponents contend that it is actually a new contest filed without permission of the court and after the time allowed by law for filing a contest had expired and is therefore not sufficient to invoke the jurisdiction of the court. The instrument in question, although denominated an amendment, is actually complete in itself and reiterates all the grounds for contest contained in the original petition in contest but in considerably more detail. It contains an allegation that evidence in support of such grounds was discovered by contestants after the will was admitted to probate and is properly verified. Such instrument is in compliance with all the statutory requirements for a petition in contest after probate except that it was not filed within the time allowed by law and it does not set forth the material facts of the evidence discovered after probate. We are of the opinion, however, that it is immaterial whether the same be considered an amendment or a new contest, or whether the same was filed with or without authority of the court, since the identical situation was before this court in the case of Voght v. Hall, 203 Okl. 670, 225 P.2d 822, 823, and such case is decisive here. In that case contestants filed within the time allowed by law a petition in contest after probate which was deficient in the same respects as the one in the case at bar, and then after the time allowed by law attempted, with permission of the court, to amend such petition so as to eliminate the deficiencies therein. The county court overruled proponents' motion to strike such contest but the district court reversed and contestants appealed to this court. In affirming the district court's judgment, this court said, in the body of the opinion:

'Under the statute, 58 O.S.1941, § 61, the contesting petition must be filed within one year after the probate. The will herein was probated on November 14, 1946. The petition was filed on the last day of the limitation period, November 14, 1947. The statute provides that the contestant must 'file in the court in which the will was proved a sworn petition in writing containing his allegations, that evidence discovered since the probate of the will, the material facts of which must be set forth'. The petition so filed was not sworn to and did not contain an averment that the evidence relied on was discovered since the probate of the will. On November 17, the third day following the filing of the petition, the County Court permitted contestants to attach to the petition a written verification thereof. The court found that the verification had been previously prepared therefor but through inadvertence was not attached to nor filed with the petition, and ordered that the amendment was to be effective as of the date the petition was filed. And, on overruling the motion to dismiss, the court, by order, permitted contestants to further amend the petition by supplying the omitted averment above mentioned.

'The judgment of the District Court is correct. Any question of the want of jurisdiction in the County Court to entertain the petition is foreclosed by the holding in In re Impunnubbee's Estate, 49 Okl. 161, 152 P. 346, wherein it is held: 'In a proceeding to contest the validity of a will, after the same has been admitted to...