Estate of Speake, Matter of
| Decision Date | 07 July 1987 |
| Docket Number | No. 63179,63179 |
| Citation | 743 P.2d 648 |
| Parties | In the Matter of the ESTATE OF Paul J. SPEAKE, Jr. |
| Court | Oklahoma Supreme Court |
Winford Mike Warren, Hollis, for appellant Pamela Elaine Speake.
Darryl F. Roberts, Messrs. Roberts & Duncan, Ardmore, for appellee Matha Speake.
The dispositive issue on certiorari is whether the one-year "recommencement-of-actions" provisions in 12 O.S. 1981 § 100, also known as a "renewal statute," extend the time prescribed in 58 O.S. 1981 § 67 to bring a post-probate will contest for a period of one year from the date the initial, timely-filed contest failed otherwise than on the merits. We answer in the negative.
The testator's will was admitted to probate on June 24, 1980. His daughter [contestant], a minor when the will was probated, initiated a post-probate contest on August 29, 1983. 1 She instituted the proceeding within the one year allowed in § 67 for a challenge by persons who were under disability at the time the will was admitted.
The contestant voluntarily dismissed the proceeding on June 18, 1984 without prejudice. Less than one month later, but more than a year after she had reached the age of majority, she reinstituted the post-probate contest of her father's will. Acting on the executrix' motion the trial court dismissed the proceeding as untimely. It held the provisions of § 100 are inapplicable to a post-probate will challenge because the contest does not qualify as an "action." The affirmance of the trial court's dismissal in an opinion by the Court of Appeals rests on the same legal analysis. Because we are persuaded to affirm on grounds quite different from those found apposite by the Court of Appeals, we grant certiorari to give guidance on the dispositive point pressed by the contestant's plea for corrective relief.
THE TIME LIMITS FOR A POST-PROBATE WILL CHALLENGE ARE
The time limits that govern the post-probate contest of a will, 58 O.S.1981 § 67, are:
"If no person, within three (3) months after the admission to probate of a will, contests the same or the validity thereof, the probate of the will is conclusive, saving to infants and persons of unsound mind, a period of one (1) year after their respective disabilities are removed." [Emphasis added.]
Since the one-year period allowed by § 67 had run when the contestant refiled the proceeding after voluntarily dismissing her initial post-probate will contest, she cannot prevail unless the statutory recommencement-of-actions provisions in 12 O.S.1981 § 100 are held to have extended the time limit prescribed by § 67. Section 100 provides:
"If any action is commenced within due time, and a judgment thereon for the plaintiff is reversed, or if the plaintiff fail in such action otherwise than upon the merits, the plaintiff, or, if he should die, and the cause of action survive, his representatives may commence a new action within one (1) year after the reversal or failure although the time limit for commencing the action shall have expired before the new action is filed." [Emphasis added.]
A lawsuit timely filed when brought but later dismissed on grounds unrelated to the merits of the controversy falls within the ameliorative relief affordable under the terms of 12 O.S.1981 § 100. 2 The refiling, if effected in conformity to the terms of § 100, relates the time of the action's commencement back to the date the petition was brought originally. 3
Oklahoma received the recommencement-of-actions provision from the laws of Kansas. 4 The construction the Kansas Supreme Court had placed on § 100 before Oklahoma's adoption of the statute is binding on us. The text came to us encumbered by the meaning accorded it in Kansas. Judicial interpretation by a court of last resort impressed on adopted legislation before its reception cannot be changed by jurisprudence of the receiving state. Legislative process affords the only effective means for departure from the binding force of the prestatehood Kansas case law. 5
When we adopted § 100, the Kansas Supreme Court had held in Medill v. Snyder 6 that this section did not operate to extend the time for a post-probate contest. Its decision emphasized that legislation authorizing the reopening of a will contest is not a true statute of limitations but rather a special enactment, complete in itself, which designates the only avenue of relief that may be sought from a will's admission. 7 The court noted that a timely institution of the post-probate will contest is a precondition of the court's cognizance. According to Medill, since time is of the essence both for the exercise of the court's power and for the preservation of the right to a post-probate challenge, the lapse-of-time provision in § 67 is not a true limitation that operates merely to destroy the remedy but one that extinguishes both the contestant's right and the court's power to act.
For the reasons to be discussed later in this opinion, the Medill analysis is equally compelling when examined in the light of other applicable legal doctrines.
Section 100, which operates generally to extend statutory limitations, is remedial in nature. It serves to lengthen only the period allowed for the commencement of an action or proceeding 8--whether the action or proceeding be one at law, in equity or one that is grounded on statute. 9 It does not enlarge the time to challenge judicial action. Section 100 has no application to an attack upon a judicial decision. The commencement of a proceeding to vacate, to modify or to reopen a judgment or decree is governed by special time limits not affected by general limitations of actions. Among the familiar statutes that regulate the time for challenging judicial action or judgment are: 12 O.S.1981 § 1038 which governs time limits for vacation or modification of judgments; 10 12 O.S.1981 § 176 which deals with the time limit to reopen a judgment; 11 12 O.S.1981 § 700 which regulates the time to show cause against a judgment rendered during a person's minority; 12 12 O.S.1981 § 655 which deals with time limits for a new trial as a result of (a) an impossibility to prepare the appellate record or (b) newly discovered evidence; 13 51 O.S.Supp.1986 § 156 which provides time limits for the accrual of a cause of action in favor of a minor under The Governmental Tort Claims Act 14 and 58 O.S.1981 § 67 which controls time limits for a post-probate will contest. 15 All of these special time limits attach directly to the right created. They constitute conditions precedent to the pursuit of the affordable relief rather than a limitation on the time to commence an action. 16 Our case law requires that a challenge made under the cited statutes be brought within the time prescribed for its institution by the authorizing enactment. 17
Another principle of law may be invoked to reinforce the result we reach today. Where, as here, there are two statutory provisions--one of which is general and the other special because it clearly includes the matter in controversy and prescribes different rules and procedures from those in a general provision--the special, and not the general statute, must be applied. 18 Section 67 is a special statute regulating the time to challenge a will's prior admission to probate.
AS A STATUTE EXTINGUISHING THE RIGHT TO CONTEST
AND IMPOSING A LIMITATION UPON THE
COURT'S POWER TO EXERCISE ITS
Medill rests on the law's notion that a lapse-of-time provision like that found in § 67 is a condition on the right to wage a contest. The condition goes unfulfilled when a contest is not brought within the specified time. By force of the Medill rationale the right to contest a will is lost upon expiration of the statutorily prescribed interval. Implicit in its teaching is the view that the § 67 time bar is to be regarded as a limitation upon the court's power to exercise its cognizance over a post-probate contest.
The common law recognizes two different time bars that are conceptually distinct: an "ordinary" or "true" statute of limitations that regulates the time to bring an action and a time limit that establishes a condition upon the right or constitutes a substantive element of the claim. 19 A legislative act that spells out the time in which an action must be brought is deemed to be an ordinary or true statute of limitations. It bars only the remedy --not the right--unless the prescribed time limit is so specifically attached to the substantive claim that it must be construed as an element of, or condition upon, the right. Ordinary limitations may be tolled and, unless affirmatively pleaded, the time bar is deemed waived. On the other hand, a time bar falling into the category of a condition upon the right is a substantive element of the claim and cannot be tolled. It differs vastly from a statute that regulates merely the time for the commencement of an action. This is so because it operates to extinguish the right as well as the remedy and in so doing it may also transfer an interest lost by time lapse. 20 Time bars in this category do not merely destroy the claim but also confer a new right on one who may invoke the benefit of the lapse. 21 Where applicable, the § 100 recommencement statute is but an extension of the statutorily established limitations period. It will not avail to resurrect a lost right but may serve solely to extend the time for the pursuit of a remedy that otherwise would have been barred.
In short, § 100 does not extend the time to bring a post-probate will contest because the terms of § 67 do not merely provide and bar a remedy; rather, they extinguish the right to challenge a will after its probate.
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