In re Smith's Estate

• Decision Date: 17 July 1928
• Docket Number: 18519.
• Parties: In re SMITH'S ESTATE. v. BEANE. JACKSON et al.
• Court: Oklahoma Supreme Court

269 P. 259

132 Okla. 33, 1928 OK 470

In re SMITH'S ESTATE.

JACKSON et al. v. BEANE.

No. 18519.

Supreme Court of Oklahoma

July 17, 1928

Syllabus by the Court.

Sections 1 and 23 of the schedule of the Constitution of this state are neither inconsistent nor in conflict with each other. The last proviso of section 23 is sufficient to authorize the Legislature to make due provisions for the transfer of certain probate cases which had been cast upon the counties of the state from the Oklahoma territorial courts and the United States courts of the Indian Territory.

Appeal from District Court, Johnson County; Porter Newman, Judge.

Application by E. E. Beane, administrator of the estate of Circe Smith deceased, for transfer of administration proceeding wherein Lindsey Jackson (née Smith) and others filed an answer. Judgment for petitioner, and defendants appeal. Affirmed.

George E. Rider, of Madill, for plaintiffs in error.

Don Welch, of Madill, and Hatchett & Ferguson, of Durant, for defendant in error.

LESTER J.

This action is presented on appeal for the purpose of reversing a certain judgment rendered in the district court of Johnson county, Okl., wherein the district court decreed the removal of certain administration proceedings pending in the county court of Johnson county to the county court of Marshall county.

It appears that, prior to statehood, J. B. Chastain was, by the United States court for the Southern district of Indian Territory, appointed administrator of the estate of one Circe Smith, deceased.

The said Chastain duly qualified as administrator of said estate and continued thereafter to act as such.

On the 2d day of April, 1926, said administrator filed in the county court of Johnson county, Okl., a petition for the purpose of having said county court transfer said administration proceedings from Johnson county, Okl., to Marshall county, Okl., for the reason that said Circe Smith, at the time of her death, was a resident of that part of the Indian Territory now embraced in Marshall county, Okl., and that the venue of said proceedings would properly lie in the county court of Marshall county, if the same had arisen since statehood.

Certain parties who claimed to have an interest in the subject-matter therein filed an answer to the petition of said administrator. A hearing was had on said pleadings in the county court of Johnson county, and that court rendered judgment decreeing and ordering a transfer of said probate proceedings from that county to the county court of Marshall county. From this judgment an appeal was had to the district court of Johnson county, and that court, after hearing the evidence thereon, found that Circe Smith, at the time of her death, was a resident of that portion of the Indian Territory now embraced in what is now Marshall county, Okl., and that the administration proceedings should be transferred from Johnson county to Marshall county.

The plaintiffs in error assign three specifications of error. The first specification of error argued by the plaintiff is that the Constitution of the state contains an inhibition against the transfer of the said administration proceedings; and section 1 of the schedule of the Constitution is relied upon by plaintiffs to sustain this contention. Said section provides:

"No existing rights, actions, suits, proceedings, contracts, or claims shall be affected by the change in the forms of government, but all shall continue as if no change in the forms of government had taken place. And all processes which may have been issued previous to the admission of the state into the Union under the authority of the territory of Oklahoma or under the authority of the laws in force in the Indian Territory, shall be as valid as if issued in the name of the state."

Also section 23 of the schedule provides:

"When this Constitution shall go into effect, the books, records, papers, and proceedings of the probate court in each county, and all causes and matters of administration and guardianship, and other matters pending therein, shall be transferred to the county court of such county, except of Day county, which shall be transferred to the county court of Ellis county, and the county courts of the respective counties shall proceed to final decree or judgment, order, or other termination in the said several matters and causes as the said probate court might have done if this Constitution had not been adopted. The district court of any county, the successor of the United States court for the Indian Territory, in each of the counties formed in whole or in part in the Indian Territory, shall transfer to the county court of such county all matters, proceedings, records, books, papers, and documents appertaining to all causes or proceedings relating to estates: Provided, that the Legislature may provide for the transfer of any of said matters and causes to another county than herein prescribed."

The Legislature, in conformity with the last provision of section 23, supra, passed an act providing for the transfer of certain probate proceedings which had been cast upon the several counties of the state, from probate cases pending in the Oklahoma territorial courts and the United States courts of the Indian Territory, at the erection of statehood. Said act is to be found in section 1091, C. O. S. 1921, and, so far as material to the question presented here, reads as follows:

"When it is made to appear that any probate matter pending in any court of this state which, by acts of Congress and the Constitution, was transferred from the courts of the territory of Oklahoma and the United States courts in the Indian Territory to the courts of this state, is not in the county where the venue of such suit, matter or proceeding would lie if arising after the admission of this state into the Union, the court where such suit, matter or proceeding is pending shall, upon the application of the guardian, executor or administrator, or any other person having a substantial interest therein, or upon its own motion, when a proper showing has been made for a removal, within twenty days after application is made therefor, make an order transferring such suit, matter or proceeding to the county where the venue would properly lie if such suit, matter or proceeding had arisen since the admission of this state into the Union, by transmitting to such county the original papers, together with certified copies of all orders and judgments, upon the payment of all accrued costs."

It must be conceded that, if the death of Circe Smith had occurred since statehood, and she was at that time a resident of Marshall county, Okl., then the venue of the administration proceedings would lie in Marshall county, Okl., only.

The court found that Circe Smith, at the time of her death, was a resident of that part of Indian Territory now embraced in Marshall county, Okl. This finding was amply supported by the testimony;...