Dillard v. Franklin
| Decision Date | 07 April 1936 |
| Docket Number | Case Number: 26192 |
| Citation | 1936 OK 321,177 Okla. 34,57 P.2d 629 |
| Parties | DILLARD et al. v. FRANKLIN et al. |
| Court | Oklahoma Supreme Court |
¶0 COURTS - Executors and Administrators - Exclusive Jurisdiction of County Court in Probate Matters - District Court Without Jurisdiction to Appoint Receivers of Estates in Course of Administration.
Under section 13, art. 7 of the Constitution of Oklahoma, the county courts of this state have the general jurisdiction of a probate court. They shall probate wills, appoint guardians of minors, grant letters testamentary and of administration; settle accounts of executors and guardians and transact all business appertaining to estates, including the sale, settlement, partition and distribution of the estates; and while administration proceedings are still pending, the district courts of this state have no jurisdiction to appoint receivers to take charge of said estates.
Appeal from District Court, Jefferson County; Eugene Rice, Judge.
Action by Minnie Franklin et al. against Vida Dillard et al. From order refusing to vacate appointment of receivers, defendants appeal. Reversed.
Wm. G. Davisson, for plaintiffs in error.
Sigler & Jackson and Ledbetter & Ledbetter, for defendants in error.
¶1 This action was instituted in the district court of Jefferson county, on the 21st day of July, 1934, by the defendants in error against the plaintiff in error, and seeks the appointment of receivers for the estate of Josiah Hamilton Dillard, deceased. This petition was subsequently amended and a hearing was had upon said petition at which time the district court appointed two receivers to take charge of the assets of said estate and of one-fourth interest in certain oil royalties devised by Josiah Hamilton Dillard, deceased, to Jerry Hamilton Dillard, and one-fourth interest in the same royalties, devised by the said Josiah Hamilton Dillard, deceased, to James Houston Dillard. The court appointed Guy Green and E.B. Anderson, of Waurika, as receivers, and directed them to take immediate possession of all of the estate of Josiah Hamilton Dillard and to take charge of the royalties aforementioned. Subsequent to the appointment of the receivers, the plaintiffs in error moved the court to vacate and set aside said appointment, and from an order of the court refusing to vacate the appointment, this appeal is taken.
¶2 It appears from the facts in said case that Josiah Hamilton Dillard made a will whereby and wherein he disposed of his entire estate, making certain specific bequests and leaving the balance of the estate to Vida Dillard, his wife. In said will, he created a trust fund for his two minor sons, James Houston Dillard and Jerry Hamilton Dillard, in the sum of $150,000, directing that said amount be paid to Thomas Norman, whom he designated and appointed guardian of the estates of these two minors, and the will further provided that in the event of Thomas Norman's death or inability to serve, then Luke Jackson and J.H. Harper were to be appointed guardians, jointly. The will further made provision for the handling of said trust estate.
¶3 From the evidence, it appears that Josiah Hamilton Dillard departed this life, a resident of Jefferson county, on the 29th day of September, 1927; that he left surviving him Minnie Franklin, Cub P. Dillard, L.H. Dillard, Joe C. Dillard, W. Guy Dillard, Douglas H. Dillard, Kermit C. Dillard, Mamie Rufus, nee Dillard, Vella Mathews, nee Dillard, all children by a former marriage and all of whom are mentioned and provided for in said will aforesaid; that he also left surviving him his widow, Vida Dillard, and two minor children by the said Vida Dillard, named James Houston Dillard and Jerry Hamilton Dillard; that a probate of said estate was filed and the will filed for probate; that some of the children by his first wife contested the probate of said will and sought to break the same, and that said contest was appealed to this court, and the will finally admitted to probate. The probate court having admitted it to probate, an appeal was taken therefrom to the district court, where it was again held that it was entitled to probate, and finally this court held that it was entitled to probate. This litigation consumed a period of some four and one-half years.
¶4 It further appears that all of the specific bequests have been fully paid, with the exception of the trust fund of $150,000, and that a portion of said trust fund has been set aside. It further appears that at the time of the death of the deceased, there was sufficient cash on hand to have set aside this trust fund of $150,000, but that the litigation was expensive and a portion of the cash on hand was used in the payment of the cost of litigation, taxes, etc. It further appears that the will does not state any time within which the trust fund is to be created.
¶5 Minnie Franklin and Cub F. Dillard, two children of the deceased by a former wife, instituted the present action for and on behalf of Jerry Hamilton Dillard and James Houston Dillard the two minor sons of Vida Dillard and the deceased, contending that as executrix of the estate, Vida Dillard was dissipating the funds and not setting aside the trust fund, and further claimed that Harmon Ebey, the guardian of the estates of Jerry Hamilton Dillard and James Houston Dillard, was mismanaging said estates and that a receiver should be appointed therefor, further claiming that the district court should construe the will of the deceased. It appears that Harmon Ebey is the now duly appointed qualified, and acting guardian, the former guardians having been removed. It appears that the probate court is still administering said estate; that no attempt has been made in said probate court to remove either the executrix or the guardian.
¶6 Upon a hearing of the issues, the trial court appointed two receivers of said properties above described, and an application was duly made thereafter to vacate said order, and from an order overruling and denying the motion to vacate, this appeal is perfected.
¶7 The evidence in this case further discloses that the defendants in error, who appear as next friends for the two minors were involved in the contest of the probate of said will, which said contest cost the estate a considerable amount of money. It further appears that these parties have made a full and complete settlement of their claims and have received the benefits accruing to them under and by virtue of said will. It further appears that the two minors involved are half brothers of Minnie Franklin and Cub F. Dillard, and that they are the children of Josiah Hamilton Dillard, deceased, and Vida Dillard, the executrix; that said children have a large income from said estate; that they reside with their mother, Vida Dillard and it further appears that save and except for the contest of said will above referred to, there would have been sufficient cash on hand to have set aside this trust fund; that the mother uses her own funds for the support and maintenance of said children and that it would be impossible to set aside this cash trust fund without disposing of a large portion of the estate by sale, and that a sale would not be advantageous, as the property would have to be sold at a considerable discount due to the depression; that if a sale were made of sufficient property to set up this cash trust fund, that, in all probability, there would not be enough of the estate left to provide for the widow.
¶8 In spite of these facts, the defendants in error contend that a receiver should be appointed by the district court to take charge...
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...v. England, 85 Okla. 276, 205 P. 1098; State ex rel. Mudd v. County Court of Osage County, 168 Okla. 470, 34 P.2d 244; Dillard v. Franklin, 177 Okla. 34, 57 P.2d 629. ¶8 Sections 1071 and 1418, supra, read, respectively, as follows: "The county court of the county in which application is fi......
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...follows, therefore, that the district court was without jurisdiction of the suit to quiet title to the real property. See Dillard v. Franklin, 177 Okla. 34, 57 P.2d 629; Bryan v. Seiffert, 185 Okla. 496, 94 P.2d 526; State v. Douglass, 187 Okla. 272, 102 P.2d 856. ¶15 2. We come, then, to t......
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