In re Estate of Bleeker

• Citation: 2007 OK 68,168 P.3d 774
• Decision Date: 18 September 2007
• Docket Number: No. 102,936.,102,936.
• Parties: In the Matter of the ESTATE OF Joseph Odell BLEEKER, Deceased, Ilene McGehee, former Administratrix of the Estate of Joseph Odell Bleeker, Deceased, Appellant, v. Arvest Trust Company, Personal Representative of the Estate of Joseph Odell Bleeker, Deceased, C.D. Bleeker, Connie Dale and Lavena Dale, Appellees.
• Court: Supreme Court of Oklahoma

168 P.3d 774

2007 OK 68

In the Matter of the ESTATE OF Joseph Odell BLEEKER, Deceased,

Ilene McGehee, former Administratrix of the Estate of Joseph Odell Bleeker, Deceased, Appellant, v. Arvest Trust Company, Personal Representative of the Estate of Joseph Odell Bleeker, Deceased, C.D. Bleeker, Connie Dale and Lavena Dale, Appellees.

No. 102,936.

Supreme Court of Oklahoma.

September 18, 2007.

On Certiorari to the Court of Civil Appeals, Div. IV.

¶ 0 While serving as administratrix an estate's beneficiary (under the regime of intestate succession) brought an intra-probate proceeding¹ to recover certain estate assets then in the hands of various persons. The beneficiary was later removed as the estate's fiduciary and the successor personal representative declined to press the then-pending asset recovery claim. The District Court, Pottawatomie County, Douglas L. Combs, Judge, denied the beneficiary's post-removal quest for leave to prosecute the claim on behalf of the estate and dismissed the intra-probate proceeding. The Court of Civil Appeals affirmed the trial court's order. On certiorari previously granted to the former administratrix who sought leave, qua beneficiary, to prosecute the claim for the estate.

THE COURT OF CIVIL APPEALS' OPINION IS VACATED; THE TRIAL COURT'S ORDER IS REVERSED AND THE CAUSE REMANDED FOR FURTHER PROCEEDINGS TO BE CONSISTENT WITH TODAY'S PRONOUNCEMENT.

Jerry L. Colclazier, Colclazier & Associates, Seminole, OK, for Appellant.

B.C. Harris, Shawnee, OK, for Appellee Arvest Trust Company.

Rob L. Pyron, M. Bradley Carter, Seminole, OK, for Appellees C.D. Bleeker, Connie Dale and Lavena Dale.²

OPALA, J.

¶ 1 The dispositive first-impression question on certiorari is whether the American common law settled in the last century and half, which in circumscribed circumstances allows persons other than the estate's fiduciary to bring litigation for recovery of estate assets, should be adopted in Oklahoma. We answer in the affirmative and reverse the contrary trial court's ruling.

I THE ANATOMY OF LITIGATION

¶ 2 Joseph Odell Bleeker (decedent) died intestate on 3 February 2004. His aunt, Ilene McGehee (McGehee), petitioned seven months later for letters of administration.³ On 27 September 2004 the trial court appointed McGehee administratrix⁴ and determined the beneficiaries (under the regime of intestate succession) to be McGehee, Lavena Dale, C.D. Bleeker and Adrian Dale (aunts and uncles of the decedent). McGehee was later removed as administratrix and Arvest Trust Company (Arvest) appointed successor personal representative.⁵

¶ 3 The litigation phase here under consideration was initiated by McGehee's post-removal quest for leave to prosecute as beneficiary a claim on behalf of the estate against appellees (Lavena Dale, C.D. Bleeker and Connie Dale)⁶ to recover personalty which she claimed had been converted from the estate. The facts surrounding the quantum of estate assets to be recovered and the circumstances of their alleged removal by appellees are in dispute. According to paperwork filed by McGehee in the probate case, the decedent's estate consisted of a 1994 pickup truck, a travel trailer, various household goods, certain mineral interests, some heirloom jewelry and approximately $420,000 in cash that was stored in two lock boxes placed in the travel trailer.⁷ She represents that the day after decedent's death appellees entered the trailer, took possession of the two lock boxes and of the cash. Shortly after her appointment as personal representative McGehee requested an order compelling Lavena Dale and C.D. Bleeker to turn over to the personal representative all estate assets in their possession. She asserted that appellees failed to surrender over $200,000 of the converted funds. According to these appellees' paperwork on file in the case, the property "was kept safe" by "C.D. Bleeker and Ms. Dale" and "was promptly and fully turned over to the estate."⁸ On 12 November 2004 McGehee submitted an application for counsel fees and costs in the amount of $11,363.39 for services rendered from 1 July 2004 through 8 November 2004.

¶ 4 On 8 March 2005 appellees moved to replace McGehee as administratrix because she had failed to post a bond, timely notify creditors, file an inventory and complete tax returns. They asserted the claim of over $11,000 for an attorney's fee was excessive. McGehee responded that she had been unable to find a surety willing to post the bond, that the failure timely to file the various estate papers was inadvertent and partly caused by appellees' conduct and that the request for counsel-fee award was not excessive. McGehee explained the primary focus of her activities had been to identify and locate estate assets. Her lawyer had taken a number of depositions in an effort to recover missing estate personalty.

¶ 5 Before the trial court ruled on appellees' removal motion, McGehee filed an "ancillary" petition⁹ in the probate case, alleging that appellees had taken approximately $420,000 in cash and refused to turn over $200,000 of that amount. She rested her claim on three theories of recovery—conversion, common-law fraud and conspiracy to defraud. The prayer sought actual and punitive damages as well as an attorney's fee and costs.

¶ 6 The trial court removed McGehee as administratrix and appointed Arvest as the estate's personal representative. It directed Arvest to examine the evidence and to make an independent decision on whether the estate should press the claim against appellees. Arvest's report to the court states that, upon a review of the evidence, the probability of recovering cash from appellees was too remote to justify the expenditure of estate funds for its pursuit.¹⁰

¶ 7 McGehee then moved to enter the pending intra-probate proceeding on the court's non-jury trial docket. She argued that as an estate's beneficiary she has standing to pursue a claim to collect missing estate assets when the estate's court-appointed fiduciary manager refuses to so do. According to McGehee her petition stated a prima facie case of embezzlement or alienation of property by the appellees within the meaning of 58 O.S.2001 § 292.¹¹ Appellees countered that the probate statutes authorize only the court-appointed fiduciary manager to bring an action to recover estate property. They argued there is no Oklahoma authority for an estate's beneficiary to pursue a claim on behalf of the estate and that McGehee's counsel has no evidence to support the claim.

¶ 8 The trial court denied McGehee's motion for leave to prosecute. It dismissed the pending intra-probate proceeding for want of a proper party plaintiff.¹² Its denial of McGehee's request is expressly rested on the absence of authority or standing for an estate beneficiary to pursue an action on behalf of the estate when the personal representative has declined to litigate the claim sought to be pressed. The Court of Civil Appeals (COCA) affirmed the trial court's order.¹³ McGehee seeks certiorari review.

II THE PARTIES' ARGUMENTS ON CERTIORARI

¶ 9 McGehee asserts the dispositive issue in this case is one of first impression — whether an estate beneficiary has standing to seek leave to pursue an action to collect estate assets when the estate's court-appointed fiduciary manager refuses to do so. She argues, based on jurisprudence garnered from other states, the American common law affords her an opportunity to prosecute such claim. She urges that nearly every state that has addressed the issue has held that when, for any reason, a legal estate representative elects not to press a claim, the beneficiaries may seek leave to maintain their own action to recover the assets to be pursued for the benefit of the estate.¹⁴

¶ 10 Appellees counter that, in the absence of a statute permitting a beneficiary to sue, the decision either to or not to pursue a claim on behalf of the estate lies solely within the province of the personal representative. They assert the trial court's denial of McGehee's quest to prosecute the claim against them was based on several factors. According to appellees the trial court took into account that (l) the former administratrix had spent nearly $12,000 of estate funds on trying to prove they had taken money from the estate and were withholding the removed funds; (2) McGehee was removed as administrator for failing to fulfill her statutory duties and (3) the new personal representative had examined the facts and decided not to pursue the claim. They urge the trial court's decision, based on "good evidence and sound discretion," is not tainted by abuse of discretion or failure to weigh critical facts. Appellees assert that McGehee lost her chance to pursue the claim qua administratrix and should not now be allowed to continue her quest "at the expense" of the estate and of other beneficiaries. They emphasize the record does not afford a sufficient factual basis for the relief McGehee seeks. According to appellees, there is no statutory right of a beneficiary to pursue a claim for the estate and this case does not tender the "right platform" for the court to create the right sought to be asserted.

¶ 11 Arvest claims the only money known to have been in the lock boxes is $220,000, which the appellees (C.D. Bleeker and Lavena Dale) delivered to the personal representative. According to Arvest, while the circumstances under which the appellees acquired access to the decedent's travel trailer and lock boxes as well as their subsequent actions may form a foundation for some claim, they cannot justify further expenditure of estate funds to pursue an action.

III STANDARD OF REVIEW

¶ 12 Probate proceedings are regarded as matters of equitable cognizance.¹⁵ While an appellate court will examine and weigh the record proof, it must abide by the law's presumption that the nisi prius decision is legally correct. It is beyond the appellate court's power to disturb that decision unless it is found...