Courtney v. Daniel

• Decision Date: 02 March 1926
• Docket Number: Case Number: 15529
• Citation: 1926 OK 186,253 P. 990,124 Okla. 46
• Parties: COURTNEY et al. v. DANIEL et al.
• Court: Oklahoma Supreme Court

1926 OK 186

253 P. 990

124 Okla. 46

COURTNEY et al. v. DANIEL et al.

Case Number: 15529

Supreme Court of Oklahoma

Decided: March 2, 1926

Syllabus

¶0 2. Judgment -- Jurisdiction to Vacate -- Fraud. The district court has power to vacate and annul orders and judgments of other courts in a proceeding brought for that purpose for fraud of the parties, inducing and entering into such order, where fraud is extraneous to the issues involved in the proceeding attacked. One species of such extraneous fraud is that which prevents the other party from having a fair opportunity to present his case, and it is immaterial, when a judgment is attacked on this ground, whether the attack is denominated a direct or collateral attack.

3. Wills--District Court May Construe. In an action in the district court in partition and within the rule last above, attacking an order of the county court purporting to construe a will which is admitted to probate, the district court has the incidental jurisdiction to construe the will and determine the rights of pretermitted children.

4. Executors and Administrators--Bond for Legacy Jurisdictional. Under section 1354, et seq. C. O. S. 1921, providing that an heir, devisee or legatee may obtain a legacy or share in an estate to which he is entitled, on giving bond with security for payment of his share of the debts, the giving of such bond is jurisdictional, since there is no statute in this state authorizing the court to dispense with such bond. An order made accordingly, without the giving of such bond, is void.

5. Courts--Co-ordinate Jurisdiction -- First Acquired--Exclusive. Where the district court under the foregoing rules, acquires jurisdiction of the parties and subject-matter pending in such county court, its jurisdiction is exclusive of the jurisdiction of the county court to render any subsequent orders involving the same subject-matter and issues, since the court which first acquires jurisdiction retains the same, and may not be interfered with by such other court of co-ordinate jurisdiction.

6. Wills--Pretermitted Children--Intention to Omit, How Determined. Formal wills being required to be in writing, the intention of the testator to omit his children who are not mentioned in the will, must be determined from the language of the will itself, aided by attendant circumstances excluding evidence of oral declarations by the testator at variance with or in amplification of the language of his written testament.

7. Same--Declarations of Testator--Inadmissible. Under the last paragraph, if the declarations of the testator are in corroboration or amplification of the will, they are immaterial; if in derogation thereof, they are incompetent.

8. Same--Declarations of Third Person as to Advancements Inadmissible. Under section 11313, C. O. S. 1921, providing that all gifts are advancements, if so expressed in the gift or grant, or charged as such by the decedent, the testimony of a third person that certain gifts by decedent were advancements is incompetent.

9. Deeds--Acknowledgment -- Impeachment--Proof. The evidence to impeach the certificate of acknowledgment of the deed in this case is clear, cogent, and convincing, and such as produces a conviction amounting to a moral certainty that the certificate is false.

10. Judgment Sustained. The judgment is not against the clear weight of the evidence, and is affirmed.

J. B. Dudley, Reuben M. Roddie, O. F. Mason, Q. P. McGhee, and N. C. Barry, for plaintiffs in error.

Shannon & Shannon and Burford, Miley, Hoffman & Burford, for defendants in error.

ESTES, C.

¶1 In 1919, John L. Courtney executed his will in favor of his wife, in which he made no mention of any of his children or grandchildren. He died April 12, 1920. After providing for the payment of his debts, the will provides:

"All the rest and residue of my property, real and personal, of every kind and wherever situated, whether vested or contingent at the time of my death, I devise and bequeath to my beloved wife, Ann E. Courtney, absolutely, free and clear of any condition or restriction whatever."

¶2 Ann E. Courtney, his wife, sole beneficiary, was nominated as executrix. On April 12, 1922, four of his children, as plaintiffs, instituted this action in the district court of Ottawa county against the other child and four grandchildren, taking by right of representation, and the widow mother, plaintiff in error, Ann E. Courtney, and Q. P. McGhee and Frank R. Burns, attorneys, and certain other defendants, raising the issue of their omission from said will, and praying partition in the aliquot parts set out, etc. On September 5, 1923, they filed their amended petition. In their first cause of action, they alleged that said will had been admitted to probate on May 14, 1920; that the omission of plaintiffs and defendants, children and grandchildren, from said will, was not intentional, and that therefore the will was void as to them; that the other defendants claimed some interest in the property by reason of certain transactions had with the deceased, said attorneys having acquired title to certain real estate from the widow, since his death. In the second cause, they charged that the defendant Q. P. McGhee held the legal title to certain real estate, under oral agreement with Mr. Courtney in his lifetime, by which his heirs owned an undivided one-half interest therein. The third cause had to do with the personal property of the estate and sought, on the ground of fraud, cancellation of an order of the county court of June 3, 1921, setting aside all of the same to the widow. A demurrer was sustained to this cause, but the issue therein was raised by answer of defendants, setting up said order of June 3rd, and claiming thereunder, to which plaintiffs replied, setting up the same grounds for cancellation, as in this cause three. The fourth cause attacked, as fraudulent and void, an order of the county court of December 5, 1922, approving the final report of Ann E. Courtney and purporting to assign the entire estate to her. The fifth cause alleged said widow and McGhee had dissipated a large part of the personal property, praying for receiver. The sixth cause charged that a recorded purported warranty deed from John L. Courtney and Ann E. Courtney to the latter, conveying the greater portion of the real estate to her, was forged, praying its cancellation. They sought cancellation of said orders distributing and assigning the estate to the widow, and asked that her distributive share be charged with the amounts unlawfully disposed of. In addition to general denial, the matters and things alleged by defendants will appear otherwise in this opinion. Judgment was for plaintiffs substantially according to their prayer -- finding that the omission to mention the children and grandchildren in said will was not intentional; that they and said widow were the only heirs, decreeing partition accordingly; ordering accounting by said widow, and charging her interest with the property disposed of by her; canceling said order of June 3, 1921, as false, fraudulent, and void, and also said decree of December 5, 1922, and said deed. Ann E. Courtney and Q. P. McGhee appeal. They argue first that the district court was without jurisdiction, and that this action is a collateral attack upon the judgment of the county court. The said contention is that the judgment is not supported by the evidence and is against the weight thereof. Our duty is to consider and weigh the evidence and apply the equitable rule as to the quantum thereof.

1. It is well settled that in a proceeding to probate a will, the only issue triable is the factum of the will, or devisavit vel non. In re Allen's Will, 44 Okla. 392, 144 P. 1055, followed in numerous decisions, including Armstrong et al. v. Letty et al., 85 Okla. 205, 209 P. 168. In such proceeding, the court cannot construe or interpret a will, or distinguish between a valid or void disposition of property. Brook v. Kie er, 59 Okla. 5, 157 P. 88. On the probate of the will in the instant case, the court could not determine the rights of the pretermitted children herein.

2, 3. From Elrod et al. v. Adair, 54 Okla. 207, 153 P. 660, to Jackson v. Porter et al., 87 Okla. 112, 209 P. 430, it is held that the district court has power to vacate and annul orders and judgments of other courts in a proceeding brought for that purpose, for fraud of the parties, inducing and entering into such order or judgment, where such fraud is extraneous to the issues involved in the proceedings attacked. One species of such extraneous fraud is that which prevents the other party from having a fair opportunity to present his case, and it is immaterial, when a judgment is attacked on this ground, whether the attack is denominated direct or collateral. Gray et al. v. McKnight et al., 75 Okla. 268, 183 P. 489, citing Griffin et al. v. Culp et al. 68 Okla. 310, 174 P. 495, Plaintiffs' allegations are sufficient to come within this rule, and thus to confer jurisdiction on the district court in this case. Also, as we shall see, the evidence is sufficient to sustain the judgment of the court in canceling said orders of the county court on such grounds so alleged. The district court, having jurisdiction in partition, had also incidental jurisdiction on issues joined for that purpose, to determine whether the children and grandchildren took under the law or were barred by the will pretermitting them.

4. As shown by the inventory filed by the widow, deceased owned 1,075 acres of land in Oklahoma, estimated value, $ 70,000, subject to about $ 26,000 mortgage indebtedness, and town property, estimated value. $ 15,000. As shown by the order of June 3, 1921, purporting to assign same to the widow, the personal property consisted of notes due the estate, aggregating $ 3,929.93; Liberty Bonds, $ 20,050, appraised at $ 17,042.50; cash on hand at death of Mr. Courtney, $ 7,000: Baby Bonds, about $ 3,000, and balance due on a

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