In re Estate of Geller

• Decision Date: 06 April 1999
• Docket Number: No. 91,420.,91
• Citation: 1999 OK CIV APP 45,980 P.2d 665
• Parties: In the Matter of the ESTATE OF Gertrude Jo GELLER, deceased. Holly White, Appellant, v. David L. Fist, personal representative of the Estate of Gertrude Jo Geller, deceased; Lori Anne Chozen; Jay Myers Chozen; Michael Alan Chozen; Marshall Geller; and, Temple Israel Foundation, Inc., Appellees.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

980 P.2d 665

1999 OK CIV APP 45

1999 OK CIV APP 45

In the Matter of the ESTATE OF Gertrude Jo GELLER, deceased.

Holly White, Appellant, v. David L. Fist, personal representative of the Estate of Gertrude Jo Geller, deceased; Lori Anne Chozen; Jay Myers Chozen; Michael Alan Chozen; Marshall Geller; and, Temple Israel Foundation, Inc., Appellees.

No. 91,420.

Court of Civil Appeals of Oklahoma, Division No. 2.

January 12, 1999.

Certiorari Denied April 6, 1999.

Anthony P. Sutton, Herrold, Herrold, Sutton & Davis, P.A., Tulsa, Oklahoma, For Appellant

J. Douglas Mann, Jerry A. Richardson, Rosenstein, Fist & Ringold, Tulsa, Oklahoma, For Appellee Fist

Frederic Dorwart, J. Michael Medina, Richard J. Cipolla, Jr., Frederic Dorwart Lawyers, Tulsa, Oklahoma, For Appellees Chozen

W. Thomas Coffman, Johnson, Allen, Jones & Dornblaser, Tulsa, Oklahoma, For Appellee Geller

Amelia A. Fogelman, Oliver S. Howard, Jeffrey D. Hassell, Gable & Gotwals, Tulsa, Oklahoma, For Appellee, Temple Foundation

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 2.

OPINION

STUBBLEFIELD, P.J.

¶ 1 This is an appeal from judgment in a probate case, based on a finding that contestant lacked standing, denying a will contest and striking a counterclaim requesting determination of heirship. Based on our review of the record on appeal and applicable law, we affirm.

¶ 2 The record reveals that Gertrude Geller was married to Louis Myers for many years and had two children from that marriage, a son, Jay, and a daughter, Linda. Jay Myers was born on June 13, 1936, and died of leukemia on March 3, 1961. Jay Myers had never married, never adopted a child nor took a child into his home and was never determined to be the father of any child in a paternity action or named a party in such an action prior to his death. Linda Myers Chozen died on February 22, 1991. She was survived by three children, Lori Chozen, Michael Chozen and Jay Myers Chozen.

¶ 3 In 1975, Gertrude Geller married Marshall Geller. There were no children from that marriage.

¶ 4 On May 25, 1991, Plaintiff Holly White contacted Gertrude Geller by telephone, claiming to be her granddaughter— the child of Mrs. Geller's deceased son, Jay Myers. Apparently, Mrs. Geller did not wish to communicate with White and, through her attorney, David Fist, requested that White refrain from further attempts to contact her.

¶ 5 On June 26, 1991, Gertrude Geller executed her Last Will and Testament.¹ After gifts to grandnieces and grandnephews and certain charitable gifts, including a substantial charitable gift to Temple Israel Foundation, Gertrude Geller named Linda's three children as her residual beneficiaries. "Article IX" of her will contained the following "Forced Heirship and Will Contest Clause:"

1. I hereby direct that should there be anyone not herein specifically or indirectly mentioned or provided for who would inherit a portion of my estate had I not executed this Will, such person or persons shall receive One Dollar ($1.00) as his, her or their sole and entire inheritance from me.

¶ 6 Gertrude Geller died on October 26, 1997, leaving a substantial estate. Three days later, after learning of Mrs. Geller's death through a newspaper obituary, Holly White filed (1) petitions for letters of administration and determination of heirship, (2) a motion seeking to take a tissue specimen from Gertrude Geller's body, and (3) a motion for temporary restraining order seeking to enjoin the interment of Mrs. Geller's body. White alleged she was the child of Jay Myers—that her mother had a sexual encounter with Myers in 1959 in Kansas City, Missouri, which resulted in White's birth on December 25, 1959—and she sought to inherit her pro rata share of Geller's estate.

¶ 7 Another petition for probate of will was filed by attorney David Fist on behalf of the Estate of Gertrude Geller.² White filed a counterclaim seeking to prove her heirship as a pretermitted granddaughter of Mrs. Geller. She filed various pleadings in the probate action, including a motion for partial summary judgment asserting that the terms of Geller's will and the provisions of 58 O.S.1991 § 132, required determination by the trial court that she was a pretermitted heir to Geller's estate as a matter of law—subject to her ability to prove that Jay Myers was, in fact, her biological father.

¶ 8 The special administrator moved to strike White's pleadings on the ground that she had no standing to pursue her claims of inheritance as a pretermitted grandchild in the probate court due to her undisputed inability to establish any of the four grounds set forth in 84 O.S.1991 § 215,³ for an out-of-wedlock child to show paternity and inherit through the father. The Chozen family also filed a motion for summary judgment based on standing and the will's in terrorem clause. The issues were thoroughly briefed.

¶ 9 The trial court rendered judgment on the dispositive issue of standing. The trial court sustained the special administrator's motion to strike all pleadings filed by White. In finding that White had no standing to make a claim in the proceeding, the trial court adopted "in toto" the reasoning and legal authorities set forth in the briefs filed by the special administrator, Temple Israel and the Chozen family that specifically addressed the issue of standing. White appeals.

¶ 10 As a preliminary matter, we note that, technically, a motion to strike was not the proper method for disposing of the counterclaim and other pleadings filed by White. Title 12 O.S.1991 § 2012(D), provides only for motions to strike "an insufficient defense." The proper method for asserting a party's lack of standing is by motion to dismiss. See Independent Sch. Dist. No. 9 of Tulsa County v. Glass, 1982 OK 2, ¶ 10, 639 P.2d 1233, 1237. Thus, we view the improperly denominated motion to strike filed by the special administrator as the functional equivalent of such a motion under section 2012(B)(6)—a motion to dismiss for failure to state a claim upon which relief can be granted. However, because matters outside the pleadings were presented to and not excluded by the trial court, the motion must be treated as one for summary judgment. Section 2012(B).

¶ 11 In her first proposition of error, White specifically addresses the issue of standing. A party has standing either through a specific statute authorizing invocation of the judicial process or if she alleges a personal stake in the outcome of the controversy —"a sufficient interest in an otherwise justiciable controversy to obtain judicial resolution of the controversy." Glass, 1982 OK 2 at ¶ 8, 639 P.2d at 1237. To have standing to participate in a probate proceeding or to object to the probate of a will, a person must have an interest in the property that the testator owned at his death. See Mayweather v. Wallace, 195 Okla. 587, 159 P.2d 529 (1945); In re Estate of Dilley, 1996 OK CIV APP 64, ¶ 8, 919 P.2d 458, 460.

¶ 12 White summarizes her argument on the issue of standing as follows:

Upon the death of the decedent, Gertrude Geller, White vested in her right to share in the decedent's estate as a pretermitted paternal granddaughter. Based upon this vested right, White had standing to prove heirship in the probate court.

However, under Oklahoma law, children born out of wedlock may become heirs of and inherit through their father only by the methods set forth in 84 O.S.1991 § 215, which provides:

For inheritance purposes, a child born out of wedlock stands in the same relation to his mother and her kindred, and she and her kindred to the child, as if that child had been born in wedlock. For like purposes, every such child stands in identical relation to his father and his kindred, and the latter and his kindred to the child, whenever: (a) the father, in writing, signed in the presence of a competent witness acknowledges himself to be the father of the child, (b) the father and mother intermarried subsequent to the child's birth, and the father, after such marriage, acknowledged the child as his own or adopted him into his family, (c) the father publicly acknowledged such child as his own, receiving it as such, with the consent of his wife, if he is married, into his family and otherwise treating it as if it were a child born in wedlock, or (d) the father was judicially determined to be such in a paternity proceeding before a court of competent jurisdiction. (Emphasis added.)

The supreme court has noted that this statute places special burdens on children born out of wedlock before they can inherit through their father. In re Estate of King, 1990 OK 138, ¶ 6, 837 P.2d 463, 464.

¶ 13 It is undisputed that part (a), part (b) and part (d) are not applicable herein. White does not allege that a written parental acknowledgment exists or that her parents intermarried. Further, no determination of paternity was made before Jay Myers' death. White's only evidence goes to part (c)—public acknowledgment. She offered the affidavit of her mother, which stated: (1) In June 1959, she had informed Jay Myers she was pregnant with his child; (2) Myers advised her that "he had discussed the matter with his father and that his father had told him to `do the right thing;'" (3) Jay Myers offered to provide financial assistance; and, (4) She called Myers again near the term of her pregnancy and he gave his reassurance and again offered his financial assistance.

¶ 14 We find this evidentiary material simply fails to establish the statutorily required public acknowledgment of section 215(c)—it fails to show that Jay Myers held Holly White out to his relatives, friends, acquaintances and the whole world as his own. Kirkland v. Henry, 1956 OK 130, ¶ ___, 296 P.2d 165, 167; In re Cravens' Estate, 1954 OK 82, ¶ ___, 268 P.2d 236, 240. Therefore, the affidavit does not raise a material issue of fact precluding summary judgment.

¶ 15 Focusing on the language of section 215(d), White...