In re Kelly's Estate

• Citation: 269 P. 282,132 Okla. 21,1928 OK 459
• Decision Date: 10 July 1928
• Docket Number: 18006.
• Parties: In re KELLY'S ESTATE. v. KELLY. CAUFIELD et al.
• Court: Supreme Court of Oklahoma

269 P. 282

132 Okla. 21, 1928 OK 459

In re KELLY'S ESTATE.

CAUFIELD et al. v. KELLY.

No. 18006.

Supreme Court of Oklahoma

July 10, 1928

Syllabus by the Court.

Where on settlement of a final report of the administrator of an estate, a dispute of title to certain funds arises between the administrator and the estate upon objection to said report by the heirs, the probate court is without jurisdiction to try the title and finally determine the ownership of such fund so as to bind the parties in another forum of competent jurisdiction to try such question.

Where the heirs of an estate file written exceptions to an administrator's final account and report, on the ground that a certain fund belonging to the estate has not been accounted for, and it is made to appear that the administrator is claiming title to the fund in his individual right, the probate court has jurisdiction, and it becomes its duty to hear such objections, and to determine whether said fund is properly an asset of the estate, or that there are good grounds for believing that the same is an asset of the estate, and, upon a finding of either fact in favor of the heirs, it becomes the duty of the court to remove or suspend the administrator and appoint another or a special administrator to commence proceedings in a court of competent jurisdiction to determine the title to said funds.

Where upon a hearing of an administrator's final report, and upon objections to approval thereof, a prima facie showing is made that a certain fund is an asset of the estate, but has not been accounted for, it is an abuse of judicial discretion for the probate court to approve said final report until said fund is accounted for, or until it has been determined in a court of competent jurisdiction that said fund is not an asset of said estate.

Commissioner's Opinion, Division No. 1.

Appeal from District Court, Creek County; Fred A. Speakman, Judge.

Final report of Thomas C. Kelly, administrator of the estate of Daniel Kelly, deceased. From an order and decree striking exceptions thereto and approving the final report, Anna Caufield and others as heirs appeal. Reversed, with directions.

Walker & Lewis and G. R. Wilcox, all of Sapulpa, for plaintiffs in error.

C. F Chapman, R. L. Wilkinson, and Eugene B. Smith, all of Sapulpa, for defendant in error.

JEFFREY C.

This appeal grew out of a proceeding in the administration of the estate of Daniel Kelly, deceased. Daniel Kelly died intestate, a resident of Creek county, Okl., in November 1922, and left, as his heirs at law, Thomas C. Kelly, Patrick Kelly, Mrs. Anna Caufield, Margaret Nolan, and Mary Keen, brothers and sisters of deceased, and May Kelly, Eva Kelly, Veronica Kelly, Frank Kelly, and Will Kelly, nieces and nephews of deceased. Thomas C. Kelly petitioned the probate court of Creek county for letters of administration upon said estate, and was thereafter appointed administrator. In January, 1923, the administrator filed his inventory and appraisement, which contained, in addition to a list of the assets and liabilities, the following notation:

"Deceased, at the time of his death, left $4,000 on time deposit in the Sapulpa State Bank of Sapulpa, Okl., to the credit of Daniel Kelly or Thomas C. Kelly. This money is not listed as an asset herein, but is claimed by Thomas C. Kelly."

On December 19, 1923, the administrator filed his final report, and prayed that the same be approved upon hearing; that the heirs be determined; and that a distribution of the assets be made. The final account did not include the above item. Before the hearing on the final report, all of the above-named heirs, except the administrator, filed written objections and exceptions to said report. The exceptions and objections, which go to the questions raised on this appeal, are that the administrator failed to account in his report for the $4,000 item or the interest thereon, and for failure to show an indebtedness of said administrator to deceased at the time of his death in the amount of $2,500 for wages. When the final report came on for hearing, the administrator moved to strike the objections and exceptions, and also demurred to the same. The county court sustained both the motion to strike and the demurrer, approved and confirmed the final report, and decreed distribution of the balance in the administrator's hands. From this order, the objectors appealed to the superior court of Creek county, which appeal was later transferred to the district court. The administrator renewed his motion to strike the particular objections and exceptions above referred to in the district court. The district court, sitting as a probate court on appeal, sustained the administrator's motion, and struck from the written exceptions all matters pertaining to the $4,000 item. A hearing was had upon the final report in the district court, and the objectors endeavored to inquire of the administrator concerning the $4,000 certificate of deposit, and attempted to offer evidence and to prove that said certificate of deposit was found among the assets of deceased; that one of the objectors still had possession of it; and that it was properly an asset of the estate of Daniel Kelly, deceased. There was some evidence offered without objection concerning this item, but most of the questions were objected to, and the objections sustained by the court on the ground that the court had no jurisdiction to try the question, since it involved a dispute of title to personal property. As to the $2,500 item claimed to be owing to the estate for wages by the administrator, the district court seemed to recognize that it had jurisdiction to hear and determine this question. Testimony was heard on this question, but the claim of objectors was rejected, and the report was approved with certain amendments thereto made by the administrator. From an examination of the evidence offered, we cannot say that the district court abused its discretion in approving the final report in so far as the $2,500 item is concerned. From the order of the district court approving said final report, the objectors have appealed. There is no question raised as to the manner in which the various objections and exceptions were preserved, and it seems to be conceded that the questions here raised are properly presented. The cause is briefed on the theory that the true question presented is whether or not the county court, as a court of probate, and the district court, acting as a probate court on appeal, have jurisdiction to determine whether the $4,000 certificate of deposit is an asset of the estate of Daniel Kelly, since the administrator lays claim of title to the same. We think the appeal presents a broader issue than that above stated. It seems that the questions which must be determined here are, Did the district court commit error in striking from the written exceptions all reference to the $4,000 item, in refusing to permit a thorough inquiry by objectors at the hearing, and did said court abuse its discretion in approving the administrator's final report in the face of the objections made and the proof offered? For the purpose of discussion we might ask, What action should the probate court take, within its prescribed jurisdiction, when presented with a situation like this?

The precise question seems never to have been before this court. The courts of several other states, which have probate codes similar to ours, have considered similar questions, and it appears that the exact question has been passed upon by a few courts of other states, and discussed incidentally by others. This being a question of first impression in this jurisdiction, and one of such vital importance, since it goes to the power and jurisdiction of probate courts to fully administer upon the estates of deceased persons, we have given the question a most careful consideration and study in the light of the judicial decisions of other jurisdictions, their probate codes, and especially in the light of the constitutional provisions and statutes of this state, in view of what we conceive to be the jurisdiction and duty of probate court in the administration of the estates of deceased persons under the Constitution and laws of this state.

By section 12 and 13, art. 7, of the Constitution of Oklahoma, county courts are given original general jurisdiction of all probate matters, and, among other things, such courts are charged with the duty of transacting all business appertaining to the estates of deceased persons. By section 16 of said article all cases arising under the probate jurisdiction of the county court may be appealed to the district court, and on such appeal the cause shall be tried de novo upon both questions of law and fact. By section 1079, C. O. S. 1921, the county court has probate jurisdiction and the judge thereof power which must be exercised in the cases, and in the manner prescribed by statutes as follows:

"Second. To grant letters testamentary, of administration and of guardianship, and to revoke the same. * * * Fourth. To compel executors, administrators and guardians to render accounts. * * * Seventh. To order and regulate all distribution of property or estates of deceased persons. * * * Ninth. To exercise all the powers conferred by this article or by other law. Tenth. To make such orders as may be necessary to the exercise of the powers conferred upon it."

Section 1328, C. O. S. 1921, is as follows:

"When an exhibit is rendered by an executor or administrator, any person interested may appear and, by objections in writing, contest any account or statement therein contained. The court may examine the executor or administrator and if he has been guilty of neglect, or has wasted, embezzled, or mismanaged the

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