In re Hicks' Estate
| Decision Date | 27 May 1941 |
| Docket Number | 29030. |
| Citation | 116 P.2d 905,189 Okla. 310,1941 OK 184 |
| Parties | In re HICKS' ESTATE. v. HICKS. JEFFRESS |
| Court | Oklahoma Supreme Court |
Rehearing Denied Sept. 16, 1941.
Syllabus by the Court.
1. The nature of a pleading is determined by the contents thereof and the relief sought, and not necessarily by what the pleader calls it.
2. While the code of probate procedure does not recognize a demurrer as a proper pleading, yet when a pleading denominated "demurrer" is filed questioning the jurisdiction of the county court to approve a petition for sale of real estate and asking dismissal of such petition same will be treated as an objection to the sale on jurisdictional grounds.
3. The county court entered an order (1) overruling the objection to sale of real estate (2) overruling two other motions and (3) decreeing sale of the real estate. The contestant gave notice of appeal from the "order of the court overruling the demurrer of this movant to the proceedings instituted to sell the real estate herein." Held, the "demurrer" was effectively overruled by that part of the order decreeing sale of the real estate, and the notice was sufficient to present to the district court the question as to whether the county court had jurisdiction to enter the decree of sale. Held further, that said order is appealable under the eighth subdivision of Section 1397, O.S.1931, 58 Okl.St.Ann. § 721, authorizing an appeal "from any other judgment, decree, or order of the county court in a probate cause, or of the judge thereof, affecting a substantial right."
4. After a final decree of distribution has been entered in a probate proceeding the county court is without jurisdiction to make any order affecting the property so distributed except such as may be necessary to compel compliance with the decree of distribution, unless and until such decree is reversed or modified on appeal or set aside by a proper proceeding.
5. An order for widow's allowance made by the county court after entry of a final decree of distribution of all the property of an estate is not a valid charge against the property so distributed, and the county court is without jurisdiction to enter a decree of sale of the property so distributed to pay such allowance.
6. Orders of the Supreme Court, directing the payment of a widow's allowance out of cash in the hands of the executor during the pendency of an appeal in which the propriety or validity of such allowance was not questioned did not authorize or justify the subsequent sale of real estate belonging to the estate to pay a widow's allowance accruing under an order made after the entry of a valid decree of distribution which distributed the property sought to be sold.
Appeal from District Court, Pontotoc County; Tal Crawford, Judge.
Proceeding in the matter of the estate of George W. Hicks, deceased wherein Eva H. Hicks filed a petition for sale of realty opposed by Lena Jeffress who filed a motion to vacate an order determining amount due on widow's allowance. From a judgment affirming the order for sale of realty and dismissing appeal from order refusing to vacate order determining amount due on widow's allowance, Lena Jeffress appeals.
Reversed with directions.
C. F. Green, of Ada, for plaintiff in error.
Busby, Harrell & Trice, of Ada, for defendant in error.
This is a probate appeal, and is the third time disputes over the estate of George W. Hicks, deceased, have reached this Court. The first case (Jeffress v. Hicks, 156 Okl. 291, 10 P.2d 419) originated in the district court and therein the contention of Mrs. Hicks, the widow, that the property standing in the name of Mr. Hicks belonged to her and him as partners was rejected. The second case (Hicks v. Jeffress, 178 Okl. 109, 61 P.2d 1079) was a probate appeal from the final decree of distribution of the entire estate entered on March 27, 1926, by the county court of Pontotoc County, and this Court therein affirmed the county court decree, with a certain exception to be hereinafter mentioned. The final decree carried out the will of the decedent, and after directing the payment of certain legacies and expenses distributed the estate as follows: One-third to the widow, and the remaining two-thirds to Lena Jeffress, an adopted daughter.
On April 3, 1926, six days after the said final decree of distribution was entered, the county court entered an order directing the executor to pay Mrs. Hicks a widow's allowance of $150 per month "until said estate is finally settled and the funds and property thereof distributed and the administrator discharged." No appeal seems to have been prosecuted from said order. It appears that some $3,300 was paid under said order. On March 6, 1937, after the second appeal in this Court had been finally disposed of, the county court, in passing upon the final report of the executor, determined that there was due on said widow's allowance the sum of $15,150 and adjudicated same to be a charge against the estate. No appeal was taken from that order.
On October 19, 1937, Mrs. Hicks filed a petition for sale of the real property belonging to the estate to satisfy her accumulated widow's allowance. Lena Jeffress filed a "demurrer" to this petition and as a ground thereof stated that "said petition and the proceedings upon which it is based does not give the court jurisdiction to entertain said petition for sale of real estate by petitioner," and she therein prayed that "said petition be dismissed." On November 19, 1937, the county court overruled said "demurrer" and entered a decree of sale of the real estate covered by the decree of distribution of March 27, 1926. In that same order the court overruled two motions filed by Mrs. Jeffress, but under the view we take of the case those matters are not now material. Mrs. Jeffress filed a notice of appeal from said order, as follows: "Comes now Lena Jeffress, an interested party, in the above entitled estate, and excepts to the order of the court made and entered on the 19th day of November, 1937, overruling the motion of the said Lena Jeffress to strike the report of the Commissioners appointed to make partition in said estate; and the order of the court overruling the demurrer of this movant to the proceedings instituted to sell the real estate herein and the order of the court denying the motion of this movant to require the executor to charge the sum of $300.00 paid to Mrs. Hicks on the 19th day of November, 1937, against the $15,150.00 claim that she holds, and gives notice of appeal from said orders to the District Court of Pontotoc County, Oklahoma, and that said appeal is taken upon both the question of law and of fact."
On January 10, 1938, Lena Jeffress filed a motion to vacate said order of March 6, 1937, determining the amount due on the widow's allowance. On January 24, 1938, this motion was denied, and Lena Jeffress appealed from said order.
The two appeals were consolidated in the district court. From a judgment affirming the order for sale of real estate and dismissing the appeal from the order refusing to vacate the order of March 6, 1937, this appeal was taken.
1. The first question presented is whether, under the notice of appeal, there is anything before this Court to review in connection with the decree of sale of the real estate. It will be observed that the notice mentioned only that part of the order overruling the demurrer to the petition, and the two other parts of the order not now material, and did not mention the part of the order decreeing the sale of the real estate. Defendant urges that a demurrer is not a recognized pleading under the code of probate procedure. This is true, but we are of the opinion that a pleading is to be judged by the contents of it, rather than the name the parties give to it. Under this rule it has been said that a pleading denominated "demurrer" in a probate cause "may be treated as an answer, or as an objection to the jurisdiction, or as an exception to the sufficiency of the averments of the petition to state a cause of action." 68 C.J. 968. See also Hamill v. Hamill, 162 Md. 159, 159 A. 247, 82 A.L.R. 878. Under this view, we hold that the demurrer was in fact an objection to the entry of a decree of sale on jurisdictional grounds.
The trial court properly so treated it, and heard the cause on its merits.
But is is said that the overruling of such a pleading is not an appealable order. Defendant cites cases from California and Montana to sustain this contention. We note, however, that the probate codes of those states do not contain a provision similar to paragraph 8 of Section 1397,...
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