Brock v. Keifer

• Decision Date: 11 April 1916
• Docket Number: Case Number: 6760
• Citation: 157 P. 88,1916 OK 433,59 Okla. 5
• Parties: BROCK v. KEIFER.
• Court: Oklahoma Supreme Court

1916 OK 433

157 P. 88

59 Okla. 5

BROCK v. KEIFER.

Case Number: 6760

Supreme Court of Oklahoma

Decided: April 11, 1916

Syllabus

¶0 1. Wills--Probate--Appeal--Parties.

Devisees in a will who are served with a notice of application to probate the will, but who are not parties to the hearing of such application, are not necessary parties on appeal to this court, involving the probate of such will.

2. Same.

On appeal from the county court to the district court in a probate matter, one who is a party to the proceedings in the county court is not required to make the affidavit required by section 6503, Rev. Laws 1910. Such affidavit is only required when the appeal is taken by a party in interest, who is not a party to the proceedings in the county court.

3. Wills--Probate--Matters Considered.

In a proceeding to probate a will, the court cannot construe or interpret the will or distinguish between valid and void dispositions. If the will be legally executed and proved, and not successfully attacked for want of testamentary capacity, undue influence, fraud, or duress, it must be admitted to probate.

4. Wills--Validity--What Law Governs.

A will is governed by the law as it exists at the time of the death of the maker, and not by the law as it exists at the time of the execution of the will.

5. Wills--Probate--Contest--Petition.

The petition of contest in the instant case carefully examined, and found not to set up any legal grounds of contest of the probate of the will offered for and probated.

6. Indians- -Testamentary Capacity--Statutory Provisions.

The proviso of section 8341, Rev. Laws 1910, does not apply to wills executed by members of the Five Civilized Tribes of Indians devising their allotted lands.

Error from District Court, Ottawa County; Preston S. Davis, Judge.

Petition by Walter J. Brock for probate of the will of Sarah C. Keifer. Opposed by Henry Keifer. Judgment for contestant, and proponent brings error. Reversed and remanded, with instruction to admit will to probate.

A. C. Towne, for plaintiff in error.

S. C. Fullerton, for defendant in error.

COLLIER, C.

¶1 At the outset we are met with a motion by Henry Keifer to dismiss the appeal, for the reason and upon the grounds that the beneficiaries named in the will of Sarah Keifer, deceased, being her eight children, are necessary parties to this appeal, and none of them, except Walter J. Brock, is a party to the same. It is true that notice issued to the various parties named as beneficiaries in the will of the application to probate the will, but the only parties who took part in the proceedings in the court below were the said executor, Walter J. Brock, and Henry Keifer. We are unable to agree with the contention that this appeal should be dismissed. The same is not an open question in this jurisdiction, but directly decided adversely to said contention in Bell v. Davis, 43 Okla. 221, 142 P. 1011; the syllabus of said case reading:

"(1) Upon appeal to the district court from an order or judgment of the county court admitting a will to probate the only necessary parties are the executor, or administrator with the will annexed, who was the petitioner or proponent of the will, and the contestants, who opposed its admission, and they being parties, the judgment of the district court admitting or refusing to admit a will to probate has the same effect as if all persons interested in the establishment of the will were made formal parties to the proceedings, and, while such judgment remains in force, subject only to reversal by this court and the statutory remedy of contesting the will after probate, it is conclusive upon the world.

"(2) Upon appeal to this court from a judgment of the district court refusing to admit a will to probate, such executor, or administrator with the will annexed, is the only necessary party plaintiff in error."

¶2 It therefore follows that the motion to dismiss the appeal should be overruled.

¶3 On June 23, 1913, Walter J. Brock filed a petition for the probate of the will of Sarah C. Keifer, deceased, executed on the 30th day of September, 1908. On August 2, 1913, Henry Keifer, husband of the said Sarah C. Keifer, filed opposition to the probate of the said will as follows:

"Comes now Henry Keifer, and represents to the court that he is the surviving husband of the said Sarah Keifer, deceased; that he is interested in the estate of said Sarah C. Keifer, deceased, and that under the law in force in the state of Oklahoma Sarah Keifer could not dispose of more than two-thirds of her estate; that by the terms of the will now offered for probate, the same purporting to be the last will and testament of said Sarah Keifer, the said testatrix has undertaken to make final disposition of all of her estate, without making any provision whatever for your petitioner; that the real estate of which said testatrix was possessed of at the time of her death, and which she undertook to dispose of by the terms of said purported will, was the homestead, and occupied by this petitioner and the said testatrix; and that, as the surviving husband of said testatrix, he is entitled to such homestead.

"Wherefore said petitioner prays that the said purported will be held invalid and ineffective by reason of the same not having any provisions therein for him, and that he be accorded his interest in said estate and all rights which under the law he is entitled to, and for other proper relief."

¶4 To the petition of the contestant Walter J. Brock filed a demurrer, upon the following grounds:

"(1) Said petition does not state when the will was executed nor when the deceased died, nor what estate deceased died seised, or what estate deceased owned at the date of the execution of the will.

"(2) Said petition to contest the probate of said will does not state facts sufficient in law as a defense or legal objection or reason for refusing the said will to probate."

¶5 On August 26, 1913, the court sustained the said demurrer to the petition of the contestant, and on December 19, 1913, found that the testimony showed testamentary capacity of the testatrix, and due and legal execution of the will, and admitted the will to probate.

¶6 Thereafter the papers were certified and transmitted to the district court on appeal. It was not shown that the appellant in taking his appeal filed an affidavit, as provided by section 6503, Rev. Laws 1910. A motion to dismiss the appeal was filed in the district court by said Walter J. Brock on the following grounds:

"(1) Because the same was not taken in time.

"(2) There was no affidavit or notice served or made as provided by law by applicant.

"(3) The said appeal is not taken in the manner and form as provided by law. There is no notice of said appeal as required by law.

"(4) There is no appeal bond as required by law."

¶7 The district court overruled the motion to dismiss the appeal, to which an exception was saved.

¶8 The cause was heard upon the pleadings filed in the county court, and the court overruled the demurrer of said Brock filed to the petition of Henry Keifer objecting to the probating of said will, and ordered, adjudged, and decreed that said will is null and void and of no legal force and effect as to Henry Keifer, the appellant herein and protestant to the probate of said will; the court finding said will to have been made in 1908, and that said Sarah C. Keifer, deceased, died in the year 1911, some considerable time after the passage and taking effect of section 8341 of the Revised Laws of 1910. The court finds that upon the passage and taking effect of said law the same applies to and becomes a part of the said will, and said will should not be admitted to probate as to Henry Keifer, except as hereinafter set forth; and it is further decreed by the court that the rights of the contestant of said will, Henry Keifer, shall be determined according to said section 8341, irrespective of the terms of said will, and that said will, as to the rights of said Henry Keifer, is void, and cannot be probated until the rights of said Henry Keifer under the said section 8341 have first been established, and that the petitioner for the probate of said will be and is adjudged to pay the costs. To which finding and judgment said Brock duly excepted, and to reverse the same brings error to this court upon the following assignments:

"First. The court erred in overruling the motion to dismiss the appeal.

"Second. The court erred in overruling plaintiff in error's demurrer and in holding that the matters set out in Keifer's contest of the will could be litigated in the probate of the will, and that the law of 1909 was retroactive in its effect.

"Third. The court erred in holding that the laws of the state of Oklahoma applied to Sarah C. Keifer in willing her allotment to her children, and that this matter could be heard in probating of the will."

¶9 The only ground earnestly insisted upon by said Brock for the dismissal of said appeal by the district court is:

"That the fact which entitles such person to appeal must be shown by an affidavit, which must be filed with a notice: that this is jurisdictional, and without such affidavit the appeal is not complete, and the appellate court acquires no jurisdiction of the appeal; that such affidavit is mandatory, and the appeal therefore is a nullity, and the motion should have been sustained."

¶10 Section 6503, Rev. Laws 1910, reads:

"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, or who has acquired, since the decree or order was made, a right or interest which would have entitled him to be heard, if it had been previously acquired, may also appeal as prescribed in this article. The facts which entitle such person to appeal must be shown by an affidavit which must be filed with the notice of appeal."

¶11 This section...