Fullerton's Estate, In re

• Decision Date: 03 July 1962
• Docket Number: Nos. 39003,39056,s. 39003
• Citation: 375 P.2d 933
• Parties: In the matter of the ESTATE of Minnie L. FULLERTON, Deceased (two cases).
• Court: Oklahoma Supreme Court

Page 933

375 P.2d 933

1962 OK 168

In the matter of the ESTATE of Minnie L. FULLERTON, Deceased (two cases).

Nos. 39003, 39056.

Supreme Court of Oklahoma.

July 3, 1962.

Rehearing Denied Oct. 16, 1962.

Syllabus by the Court

1. Where a party is uncertain as to his method of appeal and as a precaution perfects two appeals which comply with the procedural requirements of the statutes and both are filed in this court within the time necessary to vest this court with jurisdiction, the appeals will not be dismissed for failure to elect awnd pursue only one.

2. In a trial de novo in the district court on appeal from the county court in a probate matter, this court will not disturb the findings and judgment of the trial court on review, unless such findings and judgment are clearly against the weight of the evidence.

3. In the absence of contrary direction or provision in a will the residuary estate is charged with payment of estate expense before resort to property which is the subject of a specific devise.

4. Evidence offered for the purpose of showing that a written instrument was delivered conditionally does not constitute contradicting or varying a written instrument by parol. Such evidence does not tend to show any modification or alteration of the written agreement, but that it never became operative, and that its obligation never commenced.

5. In the absence of statutory restrictions probate courts have such ancillary and incidental powers as are reasonably necessary to an effective exercise of the powers expressly conferred.

6. The probate court having jurisdiction to make settlement and distribution of a decedent's estate may determine the share of each distributee, and, to that end, can inquire into and determine the indebtedness of the distributee to the estate, and order a deduction of the same from his share.

7. The inhibition provided for under 12 O.S.1961, § 384, is leveled against persons asserting a cause of action, the title to which was acquired immediately from a deceased person, and not against persons asserting a defense to such cause of action.

8. In administration proceedings it is the duty of the county court to see that all the assets of decedent are properly accounted for by the executor. For that purpose, evidence that property has not been accounted for is admissible in a hearing on the final account of the executor, but a mere allegation or contention is not sufficient justification in itself to cause the removal or suspension of the executor, and, while the county court cannot try the title to real or personal property, it is within its jurisdiction to hear testimony on the question of whether title to the property claimed by the executor in his individual capacity is vested in the estate of the decedent and, if it finds the contention groundless, it may settle the account and distribute the estate without removing the executor.

9. Oral testimony of oral statements against interest made by deceased persons many years before is the weakest of all evidence.

10. Generally, a paper extrinsic to the will need not be included in the probate; but such a paper may be included if clearly referred to and identified in the will and proved to be the one the testator intended to incorporate by reference.

11. Where will did not designate specific source from which taxes, debts, and expenses of administration was to be paid, but all estate property was disposed of by will, residuary estate would, under Oklahoma law, bear burden of all debts, including taxes and costs of administration. 84 O.S.1961, § 3.

Appeal from the District Court of Ottawa County; A. L. Commons, Judge.

Appeals by Carrie Belle Fullerton Wagoner, Patience Fullerton Stevenson, Katherine Fullerton Clammer, Pauline Fullerton Wright and Elizabeth Fullerton Coleman, from a judgment denying their objections and exceptions to the final report and approving the final account of the executor in the Estate of Minnie L. Fullerton, Deceased. Samuel C. Fullerton, Jr., as Executor, and individually, cross appeals from judgment surcharging him. Affirmed in part and reversed in part.

A. C. Wallace, John R. Wallace, Ben T. Owens, Melvin H. Landers, Miami, for plaintiffs in error, Carrie Belle Fullerton, Patience Fulleton Stevenson, Katherine Fullerton Clammer, Pauline Fullerton Wright and Elizabeth Fullerton Coleman.

Nesbitt & Nesbitt, Miami, for defendant in error and cross-appellant, Samuel C. Fullerton, Jr., executor.

L. Keith Smith, Joe T. Dewberry, Jay, Jack Brown, Miami, for cross-appellant, Samuel C. Fullerton, Jr., individually.

DAVISON, Justice.

This matter involves the disposition of two appeals by Carrie Belle Fullerton Wagoner, Patience Fullerton Stevenson, Katherine Fullerton Clammer, Pauline Fullerton Wright and Elizabeth Fullerton Coleman (herein referred to as appellants), daughters and devisees of Minnie L. Fullerton, deceased, from a judgment of the district court (on appeal from the county court) denying their objections to the expecutors final account. Samuel C. Fullerton, Jr., son and devisee of said deceased, has filed cross appeals in his capacity as executor and as an individual.

Minnie L. Fullerton died testate April 13, 1950, leaving an estate that was later inventoried and appraised at more than $239,000. The will was admitted to probate and pursuant to direction therein Samuel C. Fullerton, Jr., was appointed executor. On August 27, 1957, the executor filed his final report and petition for distribution. The appellants filed their exceptions and after extensive hearings and a number of continuances the county court, on April 16, 1959, with several exceptions, approved the final account and ordered distribution in accordance with the will. Appellants appealed to the district court. By stipulation of the parties, and reserving the right to object to the admissibility of the evidence, the matter was there tried and decided upon the record made from the county court hearings. The district court adopted and made the findings of fact and conclusions of law requested by the executor. Judgment was rendered approving the final account and petition for distribution except that the judgment directed Samuel C. Fullerton, Jr., refund to the estate the amount of $26,754.02 for taxes. The present appeals are from this judgment.

Samuel C. Fullerton, Jr., individually and as executor, urges that the appeals of appellants should be dismissed on the grounds that appellants have not followed the requisite method of appeal and this court has no jurisdiction. It appears from the record and briefs that there was considerable doubt in the minds of counsel for appellants as to the necessity of a motion for a new trial and appeal after denial of such motion or whether the appeal should be direct from the judgment. For the protection of appellants their counsel undertook to perfect appeals from both. Accordingly, on the day of judgment (September 9, 1959), the appellants gave notice of appeal to this court by case made (12 O.S.1961 § 972). After securing extensions of time within which to make and serve case made and appeal, the appeal was filed in this court on March 7, 1960, and numbered 39056. Appellants also filed motion for new trial on the day of judgment. The motion was overruled on October 30, 1959, and appellants gave notice of appeal on the original record (12 O.S.1961 § 956.1 et seq.). This appeal was filed in this court on January 27, 1960, and was numbered 39003. It was in this appeal that Fullerton, Jr., as executor and as an individual, filed his cross appeals.

It is argued by Fullerton, Jr., that appeal is properly from the judgment and that both methods of appeal are not available to appellants and that, since no election was made to pursue only one, both appeals should be dismissed.

From our examination of the record we conclude there was a bona fide doubt in the mind of counsel for appellants as to the method of appeal to pursue and that this doubt was to some extent shared by the trial judge. Although the executor contends the appeal should be direct from the judgment, still his counsel prevailed upon the trial judge to refuse to settle appellants' case made in connection with their appeal direct from the judgment, and it was necessary for this court to direct the trial judge to complete such settlement. It appears that the procedural steps in both appeals requisite to vesting this court with jurisdiction were in accordance with the above cited statutes. Both appeals were filed within the time required by statute or lawful extension thereof. Under the circumstances the appellants have in either even protected their rights of appeal and the appeals will not be dismissed.

A proper understanding of the parties respective contentions requires a recital of facts and circumstances reflected by the record. Samuel C. Fullerton, Sr., husband of Minnie L. Fullerton and father of the present executor and appellants, died in 1943. In the probate of his estate a partition proceeding was carried out and terminated in November, 1948, with an 'Order Confirming Report of Commissioners in Partition And Decree of Partition.' In this Decree of Partition, Samuel C. Fullerton, Jr., and Minnie L. Fullerton elected to take at the appraised value all of the numerous parcels of real estate, the personal property listed under 'notes, stocks, contracts and royalty interest;' and personal property listed under farm machinery and equipment. The Decree of Partition also divided a large number of Black Angus cattle among Minnie L. Fullerton, Samuel C. Fullerton, Jr., and appellants, in portions equal in value to their respective shares in the estate.

It appears that after the Decree of Partition Samuel C. Fullerton, Jr., and Minnie L. Fullerton each owned approximately the same number of cattle. On or about December 28, 1948, these parties by oral arrangement began a joint operation for the care, management and sale of their...