Fletcher's Estate, In re

• Decision Date: 15 January 1957
• Docket Number: No. 37365,37365
• Citation: 308 P.2d 304,1957 OK 7
• Parties: In the Matter of the ESTATE of Birdine FLETCHER, Deceased. A. J. SIMLER, Plaintiff in Error, v. W. H. WILSON, the Executor of the Estate of Birdine Fletcher, Deceased, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 304

308 P.2d 304

1957 OK 7

In the Matter of the ESTATE of Birdine FLETCHER, Deceased.

A. J. SIMLER, Plaintiff in Error, v. W. H. WILSON, the Executor of the Estate of Birdine

Fletcher, Deceased, Defendant in Error.

No. 37365.

Supreme Court of Oklahoma.

Jan. 15, 1957.

Rehearing Denied March 12, 1957.

Syllabus by the Court

1. Where statutory provisions of probate code and wills make payment of decedent's debts mandatory, testatrix' general direction in will for payment of 'just debts and obligations of every kind and character', including funeral expenses and expenses of any last illness, and taxing obligations, State and Federal, was meaningless and insufficient to constitute appropriation of portion of estate for payment of charges against estate under 84 O.S.1951, § 3, subd. 2.

2. The cardinal rule for the construction of wills is to ascertain the intent of the testator and give effect thereto, unless such intent attempts to effect that which the law forbids. In order to ascertain the testator's intention, the will is to be considered as a whole and the several provisions thereof in their relation to one another.

3. Where decedent's estate was composed of realty and cash assets more than sufficient to discharge all pecuniary bequests, and by provisions of will remainder of estate, both real and personal, was mingled together in residuary estate, consideration of entire will clearly disclosed intention pecuniary bequests should be paid out of personal estate.

4. Where attempted devise of realty to residuary legatees failed by operation of law, and resulted in testatrix' brother taking realty by intestate succession, such fact did not require application of 84 O.S.1951 § 4, subd. 2, so as to charge intestate property with payment of pecuniary bequests.

Appeal from the District Court of Oklahoma County; A. P. Van Meter, Judge.

Appeal from judgment of district court affirming probate court's final decree and order of distribution, under terms of which intestate property decreed to have vested in decedent's succession was charged with all debts, expenses, costs of administration and legacies. Affirmed in part and reversed in part, and remanded with directions.

Leslie L. Conner, Phil E. Daugherty and John B. Ogden, Oklahoma City, for plaintiff in error.

Fred E. Suits, Mary L. Weiss, J. B. Dudley, Oklahoma City, for defendant in error.

CORN, Vice Chief Justice.

This appeal presents questions arising from the litigation involving the will of Birdine Fletcher, who died July 13, 1952. The matters hereafter delineated sufficiently disclose the factual situation out of which arose the question herein considered.

The will contained 22 separately numbered paragraphs, which made the following disposition of testatrix' property (stating only the substance of certain of these).

'1. I will and direct the payment of all of my just debts and obligations of every kind and character, including funeral expenses and expenses of my last illness, and taxing obligations, State and Federal, and the sums hereinafter mentioned and set out for Mass Offerings, as soon as possible after my death.

'2. I will and direct the payment of $1600.00 as Mass Offerings to be distributed to the following: To His Excellancy, Bishop Eugene J. McGuinness, Bishop of Oklahoma City and Tulsa, and/or his successor in office, the sum of $1000.00, to be distributed by him as he deems best; To the Carmelite Fathers, 1125 South Walker, the sum of $100.00 for three (3) set of Gregorian Masses and ten other Masses; to Father James H. Ross, Oklahoma City, Oklahoma, $200.00; Carmelite Fathers, Marylake Novitiate, Hinsley, Arkansas, $100.00 and ask that three set of Gregorian Masses and 10 others, be said immediately; to Msgr. Gilbert Hardesty, $100.00. It is my wish and I do so direct immediate payment of the above.

'3. Paragraphs No. 3-16, inclusive contained cash bequests of from $1.00 to $500.00 to friends and relatives, including bequests of $1.00 'this amount and no more' to her brother, plaintiff herein.

'17. To Saint Anthony's Hospital, Oklahoma City, Oklahoma, $50,000.00.

'18. To Saint Patrick's Mission, Anadarko, Oklahoma, $5000.00.

'19. To Saint Joseph's Orphanage, Oklahoma City, Oklahoma, $10,000.00.

'20. All of the rest, residue and remainder of my property, both real and personal, wherever situated, I will and bequeath to Mount Alverno Convent of Maryville, Missouri, St. Francis Hospital, Maryville, Missouri, and St. Anthony Hospital of Oklahoma City, Oklahoma, share and share alike.'

Attached to this will was a list of testatrix' property, wherein it appeared testatrix then had U. S. Government Bonds ($85,800) and cash on hand ($10,546) totaling more than $96,000, as well as secured promissory notes for $28,065. The inventoried value of the listed personal property at the time of her death amounted to $125,281.82. The total of the various cash bequests in the will amounted to $69,009.

After admission of this will to probate (October 2, 1952) the contestant, plaintiff herein, appealed to the district court where judgment was rendered sustaining this order of the county court. Upon appeal to this court the judgment was affirmed. See In re Fletcher's Estate, Okl., 269 P.2d 349.

While the appeal from the county court's order was pending in the district court plaintiff instituted a declaratory judgment action in the Federal District Court, seeking determination that the devise of realty was void by reason of the constitutional prohibition, Const. art. 22, Sec. 2, against a religious corporation receiving and owning realty in certain instances. From an adverse judgment plaintiff appealed to the Circuit Court of Appeals, where judgment of the Federal District Court was reversed and the cause remanded. See Simler v. Wilson, 10 Cir., 210 F.2d 99. The effect of such judgment was that the farm land in Caddo county was taken out of testatrix' residuary estate and title thereto vested in this plaintiff.

Numerous other actions were filed in the Federal Courts restraining the executor, defendant herein, from proceeding in the state courts. From adverse judgments plaintiff appealed to the Circuit Court of Appeals, where a consolidated judgment (in 3 cases) was entered purportedly effectuating distribution of the estate. The defendant executor's application for writ of certiorari to the U. S. Supreme Court was granted on November 14, 1955, and an order entered vacating the judgment of the Circuit Court, and reinstating the judgments of the Federal District Court. See Wilson v. Simler, 350 U.S. 892, 76 S.Ct. 153.

November 30, 1954 the county court entered a decree allowing the final account, determining heirs and making final distribution of the estate. The final account reflected a distributable estate of $322,705.51, including the oil producing farmland at the appraised value of $150,000. Comprising a substantial portion of the estate was the sum of $146,683.49 in cash, of which amount $69,033.39 represented oil income from the farms during the period from July 13, 1952 to March 30, 1954.

So far as concerned herein the county court found testatrix had made valid disposition of all her property except the Caddo county farm, as to which she died intestate, and this property passed to plaintiff, who was her sole heir. The county court further found:

'That decedent in her will appropriated no property for the payment of debts, expenses of administration or legacies, and that therefore all of said debts, expenses, including estate and income taxes and legacies must be paid from said farm, together with the rents and royalties which have accrued therefrom since the death of decedent, which is the only property of decedent not disposed of by will; all as provided by Section 3 and 4, Title 84, Okla.Stat.Ann.

'It Is Further Ordered that the total debts and expenses of administration, as allowed herein, except the balance of estate and income taxes, which cannot now be definitely determined, are $58,700.92; that the specific legacies provided in the will as hereinafter shown total $69,009.00, with interest on said legacies from July 13, 1953, to March 30, 1954.

'It Is Further Ordered that the farm in Caddo county herein described and the rents and royalties therefrom which have accrued since July 13, 1952, are subject to the payment of all debts, expenses of administration, including estate and income taxes, and all specific legacies, with interest to March 30, 1954. It is the intention to distribute title to said farm in A. J. Simler free and clear of all obligations of any nature whatsoever except as herein set out.'

The expenses allowed did not include undetermined estate and income taxes, to cover which the county court ordered reservation of $25,000 from the intestate property. The decree then provided distribution of the Caddo county land to plaintiff, with all income therefrom after July 13, 1952, after payment of 'all debts, expenses of administration, including taxes, and all legacies with accrued interest.' The order also decreed distribution to the named legatees, and set over to the residuary legatees the residuary estate.

Subsequently (December 9, 1954) the county court entered an additional statement, by way of clarification or amendment of the original order, to the effect that since the farm had not been disposed of by the will, it was necessary to resort to the farm and income therefrom for payment of all debts, taxes and expenses of administration by reason of the provision of 84 O.S.1951 § 3(2); for the same reason it was necessary to resort to this property for payment of all legacies under the provisions of 84 O.S.1951 § 4(2); that the court had intended to decree that plaintiff would be entitled to the farm, and income since July 13, 1952, after satisfaction of all legacies as well as costs, expenses of administration and taxes.

Plaintiff gave notice of appeal to the district court from the above decree, as did one of the...