Hicks v. Jeffress

• Decision Date: 13 October 1936
• Docket Number: Case Number: 24270
• Citation: 1936 OK 609,178 Okla. 109,61 P.2d 1079
• Parties: HICKS v. JEFFRESS
• Court: Oklahoma Supreme Court

1936 OK 609

61 P.2d 1079

178 Okla. 109

HICKS v. JEFFRESS

Case Number: 24270

Supreme Court of Oklahoma

Decided: October 13, 1936

Syllabus

¶0 1. HUSBAND AND WIFE - Statutory Provision for Whole Estate Acquired by Joint Industry of Husband and Wife to Go to Survivor not Applicable Where Estate Disposed of by Will.

The first sentence of section 1617, O. S. 1931, "When any person having title to any estate not otherwise limited by marriage contract, dies without disposing of the estate by will, it descends and must be distributed in the following manner," relates to and qualifies the whole section, so that the portion of the second subdivision of said section providing that "where property is acquired by the joint industry of husband and wife during coverture, and there is no issue, the whole estate will go to the survivor," has no application where deceased, having title to real and personal property, disposed of the by will.

2. SAME - Children of Decedent by Former Marriage Held to Constitute "Issue" Within Meaning of Statutory Provision.

George W. Hicks, who had been twice married, died, leaving a widow, two children, the fruit of the first marriage, and an estate, which was acquired by the joint industry of the decedent and the wife by a second marriage during their coverture. Held, that the children of the first wife constituted "issue" within the meaning of the term as used in the second proviso of section 1617, O. S. 1931, which reads: "Provided, in all cases where the property is acquired by the joint industry of husband and wife during coverture, and there is no issue, the whole estate shall go to the survivor."

3. EXECUTORS AND ADMINISTRATORS - Right of Surviving Wife to Continue Use and Occupancy not Dependent on Order of County Court.

Under the provisions of section 1223, O. S. 1931, no order of the county court is required to entitle a surviving wife to the property described in said section, and to continue in use and occupancy of the homestead.

Appeal from District Court, Pontotoc County; J.F. McKeel, Judge.

In the matter of the estate of George W. Hicks, deceased. From order of distribution favorable to Lena Jeffress, now Maxey, a beneficiary under the will, Eva H. Hicks, surviving wife, appeals. Affirmed.

Lowery H. Harrell, Aubrey M. Kerr, Robert S. Kerr, Clyde L. Andrews, and Thos. G. Andrews, for plaintiff in error.

C.F. Green, for defendant in error.

OSBORN, V. C. J.

¶1 This is an appeal prosecuted by Eva H. Hicks, hereinafter referred to as plaintiff, by transcript, from an order of the district court of Pontotoc county directing the manner of distribution of the estate of George W. Hicks, deceased. Lena Jeffress, now Maxey, defendant in error, a beneficiary under the will of deceased, will be referred to as defendant.

¶2 George W. Hicks, a resident of Pontotoc county, died testate in said county on February 5, 1925, leaving surviving him as his sole and only heirs at law, his wife, Eva H. Hicks, and Maudie Mae Singleton and Mabel Clare Anderson, two daughters by a former marriage. The pertinent provisions of the will are as follows:

"Second: I give and devise to my wife, Eva H. Hicks, out of my estate, the part that she will inherit, at my death, under the laws of the State of Oklahoma and no more.

"Third; I give and bequeath to my daughter, Maudie, Mac Singleton, now residing near Bedford, Missouri, the sum of Fifteen Hundred and no/100 ($1,500.00) Dollars, and no more.

"Fourth: I hereby give and bequeath to my daughter, Mabel Clare Anderson, now residing at St. Joseph, Missouri, the sum of $2,000.00 and no more.

"Fifth. I hereby give, devise and bequeath to Lena Jeffress, who now resides at my home and has been a daughter to my wife and myself, for several years, the remaining part of all of my estate and property, both real and personal, remaining after the payment of the legacies to my two daughters, and the part that my wife will take under the statutes of the State of Oklahoma."

¶3 At the time of the death of testator, section 11224, C. O. S. 1921, was in effect. Section 1, chapter 26, Session Laws 1925 (sec. 1539, O. S. 1931), amending the former section, was enacted subsequent to his death.

¶4 John A. Smith was named executor of the will, and after the death of deceased was appointed, qualified and entered upon the discharge of his duties as such executor. The will was duly admitted to probate, inventories and appraisements were filed, and allowances were made to plaintiff for support pending the administration. The executor filed a final report and petition for distribution, whereupon plaintiff filed her petition for distribution wherein she claimed to be entitled to the entire estate on the theory that one-half of the property was hers by virtue of a partnership arrangement with her husband and that she was entitled to the other half by virtue of a certain proviso of section 1617, O. S. 1931 (sec. 11201, C. O. S. 1921), providing that where property is acquired by the joint industry of the husband and wife during coverture and there is no issue, the whole estate shall go to the survivor. A stipulation of facts was entered into by the parties, the material portions thereof being as follows:

"That George W. Hicks was married twice; that of the first marriage there were two children born, named Maudie May Singleton and Mabel Clare Anderson, and are the same parties and children mentioned in the last will and testament of said George W. Hicks: that after the birth of said children, said George W. Hicks and his first wife were divorced and property settlement made with the first wife; and that thereafter on the §§§§§ day of January. 1896, the said George W. Hicks married Eva H. Hicks, who was his second wife, and who is the party named in the petition for distribution; that there were no children born of his last marriage with Eva H. Hicks; that all of the property owned by George W. Hicks at the time of his death, and now in question, was acquired during his married life with the said Eva H. Hicks, and was the result of their joint industry during their married life.

"That at the time of the death of the said George W. Hicks he left surviving him as his only heirs at law, his wife, Eva H. Hicks, and the following children, Maudie May Singleton and Mabel Clare Anderson, named in said will; that Lena Jeffress, now Lena Maxey, represented herein by her attorney, C.P. Green, is the party referred to as a beneficiary under the fifth paragraph of said will.

"That the said George W. Hicks died in Pontotoc county, Okla., of which he was an actual and permanent resident, at the time and that all the property left by him and involved in this proceeding is situated in the state of Oklahoma."

¶5 The county court made an order distributing the property as follows:

"To Eva H. Hicks, wife of Geo. W. Hicks, deceased, an individual one-third (1/3) of the entire estate.

"To Maudie May Singleton, daughter of Geo. W. Hicks, deceased, the sum of $1,500.

"To Mabel Clare Anderson, daughter of Geo. W. Hicks, deceased, the sum of $2,000.

"To Lena Jeffress, now Maxey, all the balance of said estate, both real and personal, being an undivided two-thirds (2/3) of said estate, less the amounts paid to Maudie May Singleton and Mabel Clare Anderson.

"It is further ordered that after the payment of the executor the amounts so allowed for his services and those of his attorneys, and the payment to Maudie May Singleton and Mabel Clare Anderson the amounts devised to them, the balance of said estate be and hereby is distributed to Mrs. Eva Hicks and Lena Jeffress, now Maxey, as hereinbefore ordered, that the executor, John A. Smith, be and he hereby is discharged from his trust and he and his bondsmen discharged from further liability."

¶6 From the order of distribution plaintiff appealed to the district court, and after a hearing in said court an order was made affirming the order of distribution of the county court, from which order this appeal is prosecuted.

¶7 While the cause was pending in the district court plaintiff instituted a separate action in said district court wherein plaintiff sought to recover half of the property held by the executor of the will on the theory that a partnership existed between plaintiff and her husband during his lifetime. Plaintiff prevailed in the trial court, the cause was appealed to this court and the judgment reversed. Jeffress v. Hicks, 156 Okla. 291, 10 P.2d 419. In that case it was held that the county court had jurisdiction to decree a distribution of all of the property for the reason that plaintiff had filed an agreed statement of facts wherein it was admitted "that all of the property owned by George W. Hicks at the time of his death and now in question was acquired during his married life with the said Eva H. Hicks and was the result of their joint industry during their married life." It was also pointed out in the opinion of this court that plaintiff had made no effort to comply with the probate law relative to partnerships, to wit, section 1201, C. O. S. 1921 (1197, O. S. 1931). It is urged in this appeal that the former opinion of this court is erroneous and should be overruled for the...