Fulks v. McPherson (In re Fulks)

• Decision Date: 24 November 2020
• Docket Number: No. 118,314,118,314
• Citation: 477 P.3d 1143
• Parties: In the MATTER OF the ESTATE OF Charles FULKS, deceased. Dorothy Fulks, Petitioner/Appellee, v. Tammy McPherson, Heir at Law/Appellant.
• Court: Oklahoma Supreme Court

477 P.3d 1143

In the MATTER OF the ESTATE OF Charles FULKS, deceased.

Dorothy Fulks, Petitioner/Appellee,

v.Tammy McPherson, Heir at Law/Appellant.

No. 118,314¹

Supreme Court of Oklahoma.

FILED NOVEMBER 24, 2020

AS CORRECTED DECEMBER 8, 2020

James C. Milton, Aaron C. Tifft. Tulsa, Oklahoma, Bransford Shoemake, Pawhuska, Oklahoma, Amanda S. Proctor, Jenks, Oklahoma, for Appellant.

Todd A. Cone, Nowata, Oklahoma, for Appellee.

KAUGER, J.:

¶1 The questions presented are whether: 1) 58 O.S. 2011 § 5,² which delineates probate venue, requires the probate in this cause to be brought in Osage County, where the decedent died and all of his property was located; 2) Nowata County, where his widow first filed and received letters of administration, is an alternative venue for the probate; or 3) the cause should be transferred because of intrastate forum non conveniens . Venue is proper in Osage County.

FACTS

¶2 The decedent, Charles Fulks (Fulks/decedent), died on February 11, 2013. At the time of his death, all of his real and personal property was alleged to have been located in Osage County, Oklahoma. On June 4, 2019, the petitioner, Dorothy Fulks (petitioner/widow), filed a Petition for Letters of Administration in the District Court of Nowata County, Oklahoma, where she resided after her husband's death. In the petition, the widow listed herself as the surviving spouse of Fulks, and three children: daughters, Tobi Bricker, and Kim Bricker, and son, Charles Cody Fulks. She also stated that no will had been found, and that the decedent died intestate. She did not disclose the residency of her husband in her petition, nor did she subsequently disclose or argue that her husband had ever resided in Nowata County, Oklahoma.

¶3 The widow asked to be appointed Personal Representative of the decedent's estate. The trial court set the matter for hearing on July 2, 2019. On July 1, 2019, the appellant, Tammy McPherson (McPherson/daughter), filed a special appearance and reservation of time to answer in Nowata County. She identified herself as another daughter of the Fulks who was an "heir at law" and a lawful devisee and legatee named under the decedent's last Will and Testament. McPherson also requested a continuance of the July 2, 2019, hearing. On July 2, 2019, McPherson filed a Motion to Dismiss, arguing that: 1) the decedent did not die intestate; 2) she is a named heir in decedent's will; 3) all of the decedent's real and personal property was located in Osage, County, Oklahoma; and 4) the proper venue for the probate lies in Osage County, and even if it did not, the cause should be transferred to Osage County because intrastate forum non conveniens .³

¶4 McPherson attached a copy of decedent's will dated September 26, 2011. The will lists the widow as Personal Representative, with McPherson as a the successor Personal Representative, should the widow be unable or refuse to serve. Also on July 2, 2019, the widow filed an Application for Appointment of Special Administrator. She requested that she be appointed Special Administrator immediately so that she could assess, protect, and preserve all of decedent's assets. According to a court minute, and a court order both filed July 2, 2019, the trial court, with no one appearing to object, appointed the widow as Personal Administrator. The trial court also determined that Nowata County was a proper venue, and it issued Letters of Special Administration the same day.

¶5 On July 15, 2019, the widow filed a "Motion for an Order to Produce Last Will and Testament." She alleged that McPherson had removed her from the family home immediately after the decedent's death without most of her personal belongings, and without the property of her spouse of fifty-one years. She requested that the trial Court order McPherson to deliver the decedent's will. The next day, the widow filed a response to McPherson's motion to dismiss, arguing that: she had the option of choosing where to file the probate for her convenience; venue was proper in Nowata County; and McPherson was the only one complaining.

¶6 On July 29, 2019, the widow filed a "Request for Citation to Appear" asking the trial court to order McPherson to appear because she had concealed, embezzled, smuggled, conveyed, and disposed of decedent's property. She also suggested that there was a question of whether McPherson was the biological child of the decedent. The trial court set a hearing for all pending matters on August 13, 2019, but the cause was reset for August 15, 2019. On August 15, 2019, it overruled McPherson's motion to dismiss, and sustained the petition and appointments of the widow. The court minute reflects that a copy of the will was submitted and filed with no objection.

¶7 On August 16, 2019, the widow filed an "Amended Petition for Admission of the Last Will and Testament to Probate and Letters Testamentary." naming all four children as heirs at law. The trial court set the matter for hearing on August 28, 2019, which was passed by agreement until September 10, 2019. On September 10, 2019, the trial court issued an order again overruling McPherson's motion to dismiss and appointing the widow as Personal representative. It appears, based on the arguments and authority presented to the trial court, that its ruling was based on the recent opinion of the Court of Civil Appeals in In re Estate of Walker, 2018 OK CIV APP 63, 439 P.3d 424 which was released for publication by the Court of Civil Appeals, without a petition for certiorari being filed in this Court. The Court of Civil Appeals held that the Legislature had amended the statute so that probate could be filed in any county. However, the trial court, applying an unusual rationale, also determined that the testator died intestate, noting:

The Court, after hearing evidence, and announcement and stipulation of counsel, finds the parties have stipulated that the paper or instrument propounded herein for probate as the Last Will and Testament of said deceased, which Will is dated September 26, 2011, was duly executed by Charles Fulks, and that at the time of executing the same, the Testator was full age, of sound mind and memory, and was not acting under duress, menace, fraud, or undue influence, and that the Will was executed in all particulars as required by law. However, although the authenticity, capacity, and testamentary provisions have been proved and agreed by the parties, at this time, there is no testimony that the will was in existence at the time [of] testator's death. Therefore, the estate of Charles Fulks, as of this time, will be administered as an intestate estate.

The daughter appealed on October 10, 2019, and we retained the appeal on May 12, 2020, to address whether renumbering of 58 O.S. 2011 § 5⁴ changed the priority of proper probate venue. The cause was assigned to this chamber on May 21, 2020.

I.UNDER THE FACTS OF THIS CAUSE, VENUE IS PROPER IN OSAGE COUNTY.

¶8 The widow argues that: she chose where to file her husband's probate for her convenience and cost; and that because the application for letters occurred first in Nowata County, the cause should remain there. She primarily relies on both the probate venue statute, 58 O.S. 2011 § 5,⁵ coupled the recent rationale of the Court of Civil Appeals opinion, In re Estate of Walker, 2018 OK CIV APP 63, 439 P.3d 424, as persuasive authority.⁶ The daughter argues that the litany of venue options provided by the statute is in a prioritized order , and that he resided and died in Osage County, and all of the decedent's real and personal property is located in Osage County, the cause must be transferred to Osage County.

¶9 Probate proceedings are of equitable cognizance.⁷ We presume that the trial court's decision is legally correct and we will not disturb the trial court's decision unless it is "found to be clearly contrary to the weight of the evidence or to some governing principle of law."⁸ This matter also involves questions of statutory interpretation and harmonization. We are required to review questions of law, such as the construction of statutes, under a de novo standard of review.⁹

A.

TITLE 58 O.S. 2011 § 5 HAS REMAINED RELATIVELY UNCHANGED SINCE ITS ENACTMENT. A PUBLISHER'S MODIFICATIONS CANNOT CHANGE A STATUTE'S SUBSTANTIVE MEANING.

¶10 Title 58 O.S. § 5 was originally enacted in 1910 as, Ch. 64, Art.1 § 6193. It was taken from South Dakota and California statutory provisions,¹⁰ and it provided as follows:

Venue of Probate Acts . Wills must be proved and letters testamentary or of administration granted:

First. In the county of which the decedent was a resident at the time of his death, in whatever place he may have died.

Second. In the county of which the decedent may have died, leaving an estate therein, he not being a resident of the State.

Third. In the county of which part of the estate may be, the decedent having died out of State, and not a resident thereof at the time of death.

Fourth. In the county in which any part of the estate may be, the decedent not being a resident or the State, but dying within it, and not leaving estate in the county in which he died.

Fifth. In all other cases, in the county in which letters of administration is first made. (Emphasis in original).

¶11 By 1941, the statute had relocated to 58 O.S. 1941 § 5.¹¹ Without any Legislative amendment, the publishing company changed the numbers in the statute from written numbers, to numerical symbols.¹² Generally, a publisher's correction becomes part of the statute if the publisher did not change the substantive meaning of the statute as it was originally intended by the Legislature.¹³ Consequently, the changes from the word "First" to the numeral "1" became part of the statute. The Legislature did not make any amendments to the statute until 1982, nor have they made any since 1982.

¶12 The 1982 amendments were small changes intended to clarify language relating to residency requirements.¹⁴ Title 58 O.S. Supp. 1982 § 5, reads the...