General Creditors of Harris' Estate v. Cornett

• Decision Date: 04 April 1966
• Docket Number: Nos. 40274,D,40384,No. 1100,1100,s. 40274
• Citation: 416 P.2d 398
• Parties: The GENERAL CREDITORS OF the ESTATE of Vera HARRIS, deceased, Plaintiffs in Error, v. J. C. CORNETT, Executor of the Estate of Vera Harris, deceased and BettyJeanne Alexander, Defendants in Error. Betty Jeanne ALEXANDER, Plaintiff in Error, v. J. C. CORNETT, Executor of the Estate of Vera Cottingham Harris, OsageAllotteeeceased, Defendants in Error.
• Court: Oklahoma Supreme Court

Page 398

416 P.2d 398

1966 OK 64

The GENERAL CREDITORS OF the ESTATE of Vera HARRIS, deceased, Plaintiffs in Error, v. J. C. CORNETT, Executor of the Estate of Vera Harris, deceased and BettyJeanne Alexander, Defendants in Error.

Betty Jeanne ALEXANDER, Plaintiff in Error, v. J. C. CORNETT, Executor of the Estate of Vera Cottingham

Harris, OsageAllottee No. 1100, Deceased,

Defendants in Error.

Nos. 40274, 40384.

Supreme Court of Oklahoma.

April 4, 1966.

Syllabus by the Court

1. In construing provisions of a journal entry of judgment it should be taken in its ordinary legal meaning if possible but if ambiguous it must be considered in connection with its context and the judgment as a whole including the circumstances surrounding the making of the judgment and the condition of the cause in which it was rendered.

2. The interpretation of the parties to a judgment which is ambiguous, like the interpretation of an ambiguous contract should be given weight by the Appellate Court.

3. While objections to creditor's claims in probate court need not take any particular form they must nevertheless be asserted in the probate court or objections thereto will not be considered upon appeal.

4. 'Legal subrogation is a creature of equity not depending upon contract, but upon the equities of the parties. In its more usual aspect, it arises by operation of law where one having a liability or a right or a fiduciary relation in the premises pays a debt owing by another under such circumstances that he is in equity entitled to the security or obligation held by the creditor whom he has paid.'

5. Where administrator of deceased Osage Indian of less than one-half blood and with certificate of competency pays funeral expenses and expense of last illness out of the accrued funds from Osage Headright at time of death of decedent when otherwise accrued funds would have been available for payment of general creditor and after death of Osage Indian funds accrue sufficient to pay funeral expenses and expense of last illness the general creditors are subrogated to the accruing funds which later come into the hands of the administrator.

Probate appeals from the District Court of Osage County; R. E. Havens.

This case is affirmed in part and reversed in part and remanded to the District Court of Osage County, Oklahoma for further proceedings not inconsistent herewith.

Chas. R. Gray and W. N. Palmer, Pawhuska, for plaintiffs in error, The General Creditors of Estate of Vera C. Harris, Deceased, in No. 40274.

Rucker, Tabor, Shepherd & Palmer, Tulsa, for plaintiff in error, Betty Jeanne Alexander, in No. 40384.

J. C. Cornett and Hamilton, Kane & Kane, Pawhuska, for defendant in error, J. C. Cornett, Executor of Estate of Vera C. Harris, Deceased, in both cases.

HICKS EPTON, Special Justice.

This litigation involves the estate of Vera Cunningham Harris, an Osage Indian Allottee who died testate. It arose in the County Court of Osage County, Oklahoma, where after trial the aggrieved parties appealed to the District Court of Osage County in which trial de novo was had. Appeal was taken from the District Court judgment to this court. The nature of the judgments is reflected in the discussion of the issues.

When appeal was lodged in the Supreme Court, all of its regular members filed their disqualifications to sit in this cause and the Governor of this State, the Honorable Henry R. Bellmon, appointed John Ladner, Hicks Epton, Milton C. Craig, W. E. Maddux, Bruce McClelland, R. Place Montgomery, Reuben K. Sparks, Wilson Wallace, and Walter J. Arnote, to serve as Special Justices of this Court to hear this cause.

Although no formal issues were made up in either the County or District Court of Osage County, Oklahoma, it is clear from the pre-trial proceedings in both trial courts, from the statements of counsel in the record and in the oral arguments to this court and the partial dismissal of appeal heretofore filed in and approved by this court, that the following issues presented to the trial courts remain for decision by this court:

1. Does this Court have jurisdiction to hear this appeal?

2. Which of the several creditor's claims presented to the County Court wre properly allowed as debts against the decedent's estate?

3. Were funds available for the payment of those creditor's claims which are determined to be valid and correct charges against the estate of the decedent?

At the outset we are met with the issue of the jurisdiction to hear this appeal. This court has examined its own jurisdiction, as indeed it must, on the matters asserted in the motion to dismiss and on other matters not there asserted; and we have concluded that the appeal was timely filed in this court.

The record in the trial courts lack much to be desired. It is confusing, at times contradictory extends over many months of time and many hearings, involves separate sets of findings of fact covering the same tangled issues and altogether presents a legal maze seldom if ever compounded in 333 pages of record. On July 13, 1962, with all parties before the court and without any apparent objection to the proceedings the trial court entered an order, which itself is not a model of clarity but nevertheless seems to have set aside all previous findings, orders and judgments and given a fresh start on appeal for all of the parties. The order recites:

'That there had previously been filed and signed by this court two separate judgments in this matter, each filed on a different date. That it is the desire and intent of the parties to appeal from a final judgment of this court, and such should be a single judgment combining all findings of fact and law by the trial court in this matter.'

The Trial Court then decreed:

'It is Therefore Ordered, Adjudged and Decreed By the Court that the combined journal entry of judgment in this matter, and all other journal entries of judgment previously prepared by the various parties and signed by this court are specifically set aside and held void.'

Thereupon a new 'journal entry of judgment' was filed. It is obvious to us that the trial court and all of the parties were using the phrase 'journal entry of judgment' as synonymous with the judgment itself. Otherwise we find no explanation for the order of July 13, 1962. The order is ambiguous. Apparently the parties construed it in the light we have suggested because no motion to dismiss was filed with this court until it questioned its own jurisdiction and called for briefs on the question from the parties.

All agree that if the order of July 13, 1962 is to be interpreted as we have done the appeal was lodged within the time allowed by law. The interpretation of the parties to a judgment which is ambiguous, like the interpretation of an ambiguous contract, should be given weight by the court.

Likewise, the circumstances surrounding the making of the Judgment may be considered. The rule is stated in Freeman On Judgments, Vol. 1, 4th Edition, Article 76 pp. 132--133:

'In construing the provisions of a judgment the usual canons of construction should be applied. * * * In construing any portion of the language of a judgment, while it should be taken in its ordinary legal meaning, it must be considered in connection with its context and the judgment as a whole, and the circumstances surrounding the making of the judgment--the condition of the cause in which it was rendered.'

This we have done in resolving the issue of jurisdiction in its favor. We therefore hold that the appeal was timely filed and that this court has jurisdiction to determine the remaining issues before it.

We next proceed to a consideration of the validity of the creditor's claims. Both County Court and District Court allowed all of the claims but the District Court held funds were not available for their payment.

In all 14 separate creditor's claims were presented to the executor, approved by him and thereafter approved by the County Court. Of these claims those of Hotel Pharmacy, and Pawhuska Hospital were for last illness. The Hotel Pharmacy claim shows to have been presented to the executor on March 16, 1961, and actually paid on that date; however, it was not presented to nor approved by the County Court until March 28, 1961. Although vigorous attack is made on the claim in this court no specific objection seems to have been lodged to it in the court below. It is contended here that approval of the County Court was not timely endorsed on the claim. We do not interpret the Statute, 58 O.S.A. § 337 to require approval by the County Court within 10 days from the presentation to the executor. Since all parties agree the claim arose out of the last illness of the decedent, the reasonableness of the claim is not questioned and no specific objection ws made to it in the court below because of the failure of the County Judge to approve the claim within ten days of its presentation to and approval by the executor, we need not decide whether this was improper, or if so its legal effect, because we conclude no successful attack may here be made on it when the issue was not raised below.

The claims of Johnson Funeral Home for burial of the decedent in the amount of $1,706.92 was not attacked in the court below and no good reason is herein indicated why it should not have been approved. Likewise the claim of Osage Marble and Granite Works in the original amount of $765.00 was allowed by the Executor and the County Court for only $150.00. No specific attack was made below and none is here made and that claim likewise is sustained.

The claims of Handy Grocery, Dowdy's Grocery and C. R. Anthony Company were not questioned in the court below and cannot here be challenged.

We now approach the issue as to availability of funds for the payment of these claims. The decedent, Vera Harris, was an Osage Indian of the 1/16th Indian blood who has a certificate of competency. Section 4 of the Osage Act of Congress of March...