Burford v. Stuart

• Decision Date: 08 March 1966
• Docket Number: No. 40842,40842
• Citation: 1966 OK 43,412 P.2d 169
• Parties: Carolyn Skelly BURFORD, Plaintiff in Error, v. John Skelly STUART, Surviving Executrix of the Estate of William Grove Skelly, deceased, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 169

412 P.2d 169

1966 OK 43

Carolyn Skelly BURFORD, Plaintiff in Error, v. John Skelly STUART, Surviving Executrix of the Estate of

William Grove Skelly, deceased, Defendant in Error.

No. 40842.

Supreme Court of Oklahoma.

March 8, 1966.

Syllabus by the Court

1. A decree of distribution of county court having jurisdiction of the settlement of an estate, entered after due notice and hearing, is conclusive in the absence of fraud, mistake or collusion as to the rights of parties interested in the estate, to all portions of said estate thereby ordered, and capable of being then distributed, unless reversed or modified on appeal.

2. The heirs or devisees may themselves, or jointly with the executor or administrator, maintain an action for the possession of real estate, or for the purpose of quieting title to the same against anyone except the executor or administrator.

3. When an estate has been fully administered and the executor or administrator has performed all the acts lawfully required of him, the court must make a judgment or decree discharging him as executor or administrator.

Appeal from District Court of Tulsa County; W. Lee Johnson, Judge.

On appeal from a final order of the county court discharging Joan Skelly Stuart as Surviving Executrix of the Estate of William Grove Skelly, Deceased, the District Court affirmed the order of discharge. Plaintiff in error perfected this appeal from the district court's order overruling her motion for a new trial. Judgment affirmed.

V. P. Crowe, Allen D. Evans, Crowe, Boxley, Dunlevy, Thweatt, Swinford & Johnson, Oklahoma City, for plaintiff in error.

E. J. Doerner, R. Dobie Langenkamp, Tulsa, for defendant in error.

PER CURIAM.

This is an appeal from the District Court of Tulsa County, Oklahoma, wherein that court discharged Joan Skelly Stuart as surviving Executrix of the Estate of William Grove Skelly, deceased, and affirmed a like prior order of the County Court of Tulsa County.

On November 10th, 1961, a final degree was entered in the County Court of Tulsa County approving the Final Account of the Executrix determining the persons entitled to the estate and directing distribution of the estate to them. Plaintiff in error was represented at that hearing by her then counsel. It does not appear that any objection was filed to that account or the distribution ordered and no appeal was taken from that decree. Thereafter the Executrix filed her Second Supplement to Final Account reporting her actions in carrying out the final decree of distribution which Second Supplement came on for hearing before the County Court on July 6th, 1962. At that hearing the plaintiff in error was represented by her then counsel. The order of the County Court recites:

'It further appearing that said Executrix has fully accounted for all property, funds and money received by her since the Order Approving Final Account and First Supplement thereto and she has performed all of the acts lawfully required of her under the Decree of Distribution herein.

'IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court that the Second Supplement to Final Account of the said Surviving Executrix be, and the same is, hereby approved.

'Now on request of Carolyn Skelly Burford in open Court that the Application of Surviving Executrix for Discharge be passed so as to permit the said Carolyn Skelly Burford to make written inquiry of the Executrix concerning matters pertaining to the above styled estate.

'IT IS HEREBY ORERED, ADJUDGED AND DECREED that the hearing on the Application of Surviving Executrix for Discharge be, and the same is, hereby passed until 9:30 o'clock A.M. August 3, 1962.

'IT IS FURTHER ORDERED that any inquiries which the said Carolyn Skelly Burford may desire to make of said Surviving Executrix concerning the above styled estate, be made in writing, addressed to said Surviving Executrix, on or before July 25, 1962.'

No appeal was prosecuted from this order.

Thereafter, and on August 24th, 1962, plaintiff in error through her counsel filed an 'Objections to Discharge of Executrix'. On the same day, those objections were heard by the County Court in a proceeding in which the counsel for both parties were present and participated, and an order was entered denying the objections and discharging Joan Skelly Stuart as Executrix. From that order of August 24th, 1962, the plaintiff in error prosecuted an appeal to the District Court of Tulsa County on both questions of law and fact.

On appeal to the District Court, the order of the County Court discharging the surviving executrix was affirmed. Plaintiff in error appeals from the order overruling her motion for a new trial.

Plaintiff in error first contends the trial court erred in refusing to require the executrix to bring an action to recover for the estate an interest in certain real estate situated in Rogers County, Oklahoma, allegedly belonging to the deceased at the time of his death.

The record discloses that the real estate was conveyed by Robert Hays Murphy and wife and R. F. Murphy and wife to Big Lake Club of Tulsa, Oklahoma, a corporation, by deeds dated December 24th, 1928, and April 25th, 1929. Thereafter, on March 20th, 1940, W. G. Skelly joined with eleven others in a Declaration of Trust which recited that each of them was the owner of a one-twelfth interest in the lands by virtue of a conveyance to them by the Big Lake Club. The declaration appointed Glenn A. Campbell, as trustee, agent and attorney in fact, with wide powers which included the power to sell and convey the lands or any part thereof and to collect and receive the proceeds of any such sale. The declaration further empowered the trustee to collect all rents and revenues accruing from the lands and to pay over the same to the Big Lake Club after discharging the taxes and other expenses of operation. The trustee, agent and attorney in fact, was specially authorized to sell convey and dispose of the beneficial interest of any one or more of the creators to any person or persons subject only to the approval of a majority of the other beneficial owners.

The record further discloses that on December 22nd, 1939, W. G. Skelly by letter addressed to Big Lake Club, attention Mr. G. R. McCullough, President, advised that he had disposed of his stock in Big Lake Club to Harold C. Stuart and directed the cancellation of his stock certificate and the issuance of a certificate for a like amount of shares to Mr. Stuart. On January 25, 1963, Glenn A. Campbell, as trustee under the trust heretofore referred to, conveyed the lands to certain grantees, Harold C. Stuart being one of the grantees so named. On the same day a second Declaration of Trust was executed by Mr. Stuart and ten other persons reciting that each of them owned a one-eleventh interest in the lands and naming Glenn A. Campbell as trustee, agent and attorney in fact, for all of them with relation to the lands by them conveyed to Campbell as their trustee. This second trust instrument conferred on the trustee powers similar if not identical with those conferred by the first declaration including the power to sell and convey the lands in whole or in part and the separate beneficial interests of the creators of the trust. The grantees in the deed from Glenn A. Campbell, as trustee, all executed the second declaration of trust and joined by other persons executed the deed back to Glenn A. Campbell as trustee. Glenn A. Campbell was the only person who executed both trust agreements.

The only witness testifying in this cause was Harold C. Stuart. In substance he testified that the title to the lands in 1939 was in Big Lake Club, a corporation; that the stock of the corporation was owned in equal shares by twelve persons, Mr. Skelly and eleven others; that it was used for farm land and not for corporate purposes; that it was agreed that under the Oklahoma escheat statutes the land should be conveyed to the stockholders and by them to a trustee; that Mr. Skelly had, prior to the execution of the first trust declaration, transferred his stock to the witness, Stuart, but through inadvertence and mistake he was named as one of the creators of the trust and executed...