Estate of Eversole, Matter of

• Decision Date: 05 July 1989
• Docket Number: No. 3,No. 70531,70531,3
• Citation: 787 P.2d 470
• Parties: 1989 OK CIV APP 43 In the Matter of the ESTATE and Last Will and Testament OF Otis H. EVERSOLE, Deceased. Otis EVERSOLE, Jr., Anthony Eversole, and Mark Eversole, Appellants, v. Bill R. SCARTH, Executor of the Estate of Otis H. Eversole, Appellee. Court of Appeals of Oklahoma, Division
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Page 470

787 P.2d 470

1989 OK CIV APP 43

In the Matter of the ESTATE and Last Will and Testament OF

Otis H. EVERSOLE, Deceased.

Otis EVERSOLE, Jr., Anthony Eversole, and Mark Eversole, Appellants, v. Bill R. SCARTH, Executor of the Estate of Otis H. Eversole, Appellee.

No. 70531.

Released for Publication by Order of the Court

of Appeals of Oklahoma, Division No. 3.

Court of Appeals of Oklahoma,

Division No. 3.

July 5, 1989.

Rehearing Denied Aug. 18, 1989.

Certiorari Denied Feb. 21, 1990.

Appeal from the District Court of Muskogee County; William H. Bliss, Judge.

REVERSED AND REMANDED.

Ken Ray Underwood, Tulsa, for appellants.

John Scott, Tulsa, for appellee.

MEMORANDUM OPINION

REYNOLDS, Judge:

Otis H. Eversole (testator), now deceased, executed his last will and testament on November 8, 1974. Pursuant to the terms of the will, testator devised and bequeathed to his second wife, Maggie Jean Eversole, all personal property and the homestead.

Testator also bequeathed to his second wife, in trust, a portion of his estate;

"equal in value to the maximum marital deduction allowed ... under the provisions of the Internal Revenue Code upon the basis of the value of my adjusted gross estate as finally determined for Federal Estate Tax purposes, less the value of any property or interest in property qualifying for said marital deduction which pass or have already passed to my wife under other provisions of this Will, by operation of law, or otherwise."

The remainder of testator's estate was bequeathed to Appellants, testator's sons by his first wife, and to his stepson.

Under the federal tax law in effect at the time testator executed his will, the maximum marital deduction allowed was approximately one-half ( 1/2) of the estate. 26 U.S.C. § 2056. Pursuant to the Federal Economic Recovery Tax Act of 1981, the law was changed to allow for an unlimited marital deduction. Furthermore, our legislature also enacted 84 O.S.Supp.1983, § 186, which provides:

"Any will of a decedent dying after December 31, 1981, which contains a marital deduction formula expressly providing that the spouse of the testator is to receive the maximum amount of property qualifying for the marital deduction allowable by federal law shall be construed as referring to the unlimited marital deduction provided by the Economic Recovery Tax Act of 1981, Public Law 97-34. This provision shall apply retrospectively to wills of decedents dying after December 31, 1981."

Testator died on August 21, 1983, after the effective date of the above provision.

On September 27, 1983, testator's will was admitted to probate. Appellee, as executor of the estate, filed an inventory and several accountings valuing the estate at $2,761,520.00.

Approximately three years later, Appellants filed a motion for interpretation of will and claim to estate in district court. Appellee filed a motion to dismiss Appellants' motion on the ground that such motion was, in reality, a contest to the provisions of the will filed out of time, and did not comply with the statutory requirements for contesting a will pursuant to 58 O.S.1981, § 61.

Appellee further contended that Appellants' motion was in derogation of the no-contest provision of testator's will, which provided:

"If any legatee, devisee or beneficiary under this Will contests the probate or validity of this Will or any provision thereof, or institutes or joins in (except as a party seeking to uphold the provisions of this Will), any proceeding to contest the validity of this Will, or to prevent any provision thereof from being carried out in accordance with its terms (regardless of whether such proceedings are instituted in good faith and with probable cause), then all legacies, devises and benefits provided in this Will to or for such persons are revoked and are void and have no effect. All such legacies, devises and benefits to or for such person shall in such event pass to or be held for persons other than such person and such person's issue in the manner provided in this Will as if such person or such person's issue had all failed to survive."

The trial court granted Appellee's motion to dismiss Appellants' motion for interpretation, and this appeal followed.

Appellants first contend on appeal that the clear intent of the testator mandates that Appellants receive a share of the estate and the trial court erred in dismissing their motion for interpretation of the will and claim to estate without making an interpretation of the will and determination of heirship.

Upon the admission of a will to probate, the district court has a duty to determine heirship and distribute the estate after a final accounting has been made. 58 O.S.1981, §§ 631, 632. Appellee, as executor, has filed a fourth accounting with the district court, but no final accounting has been made nor a determination of the heirs entitled to distribution of testator's estate.

The order of the district court sustaining Appellee's motion to dismiss does not set forth findings of fact supporting the court's decision to summarily dismiss Appellants' motion for interpretation without allowing evidence to be heard.

In Oklahoma, an heir has the right to petition for an award or interest in an estate prior to the time of the final accounting. In re Tayrien's Estate, 207 Okl. 401, 250 P.2d 16 (1952). Matters decisive of the distribution of an estate are properly heard and determined at the hearing on the final account and petition for distribution after proper order and notice. 84 O.S.1981, §§ 251, 252, 253. See Steger v. Gibson, 287 P.2d 687 (Okla.1955); Blasingame v. Gathright, 284 P.2d 431 (Okla.1955); Boyes' Estate v. Boyes, 184 Okl. 438, 87 P.2d 1102 (1939). The Appellants, as testator's natural sons, necessarily have a great interest in the court's determination of heirship in this sizeable estate.

The primary purpose in construction of wills is to...