Moore v. McAlester

Decision Date25 April 1967
Docket NumberNo. 41673,41673
Citation428 P.2d 266
PartiesHazel Barnes MOORE, now Crowson, Plaintiff in Error, v. James Troy McALESTER, J. J. McAlester, Rebecca McAlester Olinger, C. L. Priddy, Executor of the Estate of Mary B. McAlester, deceased, Lura McAlester Phelps, Jo Ann Capps, John F. Capps, Defendants in Error.
CourtOklahoma Supreme Court

Syllabus by the Court

1. By virtue of 12 O.S.1963 Supp., Sec. 972, all proceedings by casemade for reversing, vacating or modifying judgments or final orders shall be commenced within twenty days from the date the casemade is settled, and where casemade and petition in error are not filed in Supreme Court within twenty days from date casemade is settled, such court is without jurisdiction to entertain the appeal and will dismiss the same. The same rule is applicable to cross-petitions in error.

2. The phrase 'issue of her body', used in a will with respect to a named person, does not include an adopted child of such person.

3. Where a will devises a contingent remainder to a definitely ascertained person, and the only uncertainty or contingency is as to the happening of the event upon which the remainder is to take effect, such person takes a vested interest in a contingent remainder, and the devise does not lapse because of the death of such person after the death of the testator but before the happening of the contingency. In such case, the property goes to the heirs or devisees of the deceased remainderman upon the happening of the contingency.

Appeal from the District Court of Pittsburg County; Don Barnes, Assigned Judge.

Probate matter involving a construction of the trust provisions of a will. From the final order determining heris and distributing the corpus of the trust, Hazel Barnes Crowson appeals. Affirmed.

Stanley B. Catlett, Oklahoma City, Eugene N. Catlett, Houston, Tex., for plaintiff in error.

Charles B. Tucker, McAlester, for defendant in error, Rebecca McAlester Olinger.

Gotcher & Cotcher, James E. Gotcher, McAlester, for defendant in error, James T. McAlester.

Robert A. Layden, McAlester, for defendant in error C. L. Priddy, Executor of the Estate of Mary B. McAlester, Deceased.

George L. Hill, A. James Gordon, McAlester, for defendant in error Lura McAlester Phelps.

Arnote, Bratton & Allford, Walter J. Arnote, McAlester, for defendant in error James J. McAlester, Jr.

JACKSON, Chief Justice.

This is an appeal in a probate matter which involves a construction of the will of J. J. McAlester, deceased. A brief summary of the rather involved litigation preceding the appeal is necessary.

McAlester died in September, 1920, leaving surviving him a daughter and two sons, and his will was presented for probate in the County Court of Pittsburg County about a week later. Despite a contest filed by his daughter, Sudie, it was admitted to probate on November 3, 1920. W. B. McAlester, one of the sons, was named executor of the will, and in 1925, after a final report by him, the court rendered its Order Allowing Final Account, Determining Heirs and Distributees, Distributing Estate and Discharging Executor, from which no appeal was taken. In this Order, the court distributed two lots in McAlester, Oklahoma, to W. J. Horton as trustee, in accordance with the following portion of the will:

'ITEM SIX--I give, devise and bequeath to W. J. Horton of McAlester, Oklahoma, Trustee, Lots six (6) and seven (7) * * * The said W. J. Horton to take the possession, management and control of said property, lease the same, collect and receive the rents, issues and profits thereof, and * * * to pay the net proceeds to my said daughter, Sudie Barnes, quarterly in each year during her lifetime for her use and benefit; * * * and upon the death of my said daughter, Sudie Barnes, said lots six and seven * * * to go and belong to the Issue of her body then living, if any, but if she leaves no issue, then to go and belong to my said sons, J. B. McAlester and W. B. McAlester, share and share alike.' (Emphasis supplied.)

In 1928, 'subsequent letters of administration' were granted upon a petition alleging that certain real property had been inadvertently omitted from the prior probate proceedings. After routine and uncontested proceedings, lasting only a few months, this property was distributed under the residuary clause of the will to the three children in equal shares, and the administrator was discharged.

During the 1930's, both J. B. McAlester and W. B. McAlester, the two sons, died. J. B. McAlester died testate, leaving surviving him his widow, Lura, a son, J. J., and a daughter Rebecca. The widow, Lura, was the residuary devisee under his will. W. B. McAlester died intestate, leaving surviving his widow, Mary B., a son, James T., and a daughter, Rebecca.

In 1959, Sudie Barnes died intestate and the trust created by Item Six of the will of her father, J. J. McAlester, came to an end as to her. She left an alleged adopted daughter, Hazel Barnes Crowson, as her only survivor. Mrs. Crowson is the plaintiff in error in the appeal now before us.

In 1960, William Jones, the successor of W. J. Horton as trustee for Sudie Barnes filed a petition in the county court reciting in effect that the trust created by Item Six had come to an end; that the trust property, with some accrued cash, remained in his possession; that it is '* * * proper that letters of administration with the will annexed should again be issued'. A waiver of notice, signed by all of the heirs of J. J. McAlester, including Hazel Barnes Crowson, was presented with the petition, and Jones was thereafter appointed administrator with the will annexed. In due course Jones filed an accounting. Thereafter several of the heirs filed applications for determinations of heirship and distribution. On these pleadings, issue was joined on the proper construction of the portion of the will previously quoted herein, and also on the issue of fact as to whether Hazel Barnes Crowson had actually been adopted by Sudie Barnes and her husband after the death of the testator.

Hazel Barnes Crowson took the position that, despite the limitation to '* * * the issue Of her body then living, if any, * * * (emphasis supplied), the corpus of the trust estate descended to her as the adopted daughter of Sudie Barnes. The widows of the two sons took the position that the trust property descended to the Heirs of the sons, as a part of their respective estates. Lura McAlester Phelps, the widow of J. B. McAlester, claimed all of the one-half interest that would have gone to J. B. McAlester, as the residuary devisee under his will. Mary B. McAlester, the widow of W. B. McAlester, died after Sudie Barnes died, and is now represented in this case by the executor of her estate, who claims an undivided one-sixth of the trust estate, as the share of Mary B. McAlester under the laws of descent and distribution. Generally, the grandchildren take the position that since Sudie Barnes did not leave 'issue of her body', the trust estate descended to the heirs Of the body of the two sons, J. B. McAlester and W. B. McAlester. Under this view, the widows of the two sons would not participate in the distribution of the trust estate.

The order of the County Court was in general accordance with the theory of the grandchildren. Under this order, the trust estate was distributed one-fourth each to James T. McAlester and Rebecca McAlester Olinger (children of W. B. McAlester); one fourth to J. J. McAlester III, the son of J. B. McAlester; and the remaining one fourth in equal shares to the children of Rebecca McAlester Capps, a deceased daughter of J. B. McAlester.

This order was appealed to the district court where the matter was heard de novo. At the conclusion of the hearing the district court found as a fact that Hazel Barnes Crowson had been legally adopted. He also made the following findings:

'The court further finds that James J. McAlester was a man of extensive business and legislative experience. That he was aware of his family relationships, the number of his children, their ages and ages of their husbands or wives. In this regard he was aware at the time of executing his will that his daughter, Sudie Barnes' husband, Simpson H. Barnes, was fifty-nine (59) years of age.

'That because of his experience he was familiar with the meaning and legal significance of the expression 'issue of her body' and intended to limit the devise of the trust property under consideration herein to the issue of her body which would exclude an adopted daughter.'

He also concluded as a matter of law:

'That Sudie Barnes died without there being issue of her body and that the trust estate under consideration herein then went under the terms of the will to: J. B. McAlester and W. B. McAlester. That the said J. B. McAlester and W. B. McAlester predeceased Sudie Barnes and that the trust estate, on the failure of there being issue of Sudie Barnes' body at the time of her death, went one-half (1/2) to each of their respective estates.'

In a subsequent Judgment and Decree, the court distributed the trust estate to the heirs of J. B. and W. B. McAlester, as follows: an undivided one-half interest to Lura McAlester Phelps, as the surviving widow and residuary devisee under the will of J. B. McAlester; and one-half to the heirs of W. B. McAlester, who died intestate.

Hazel Barnes Crowson and three of the grandchildren filed separate motions for new trial which were overruled, and gave notice of intention to appeal. The casemade was settled on September 13, 1965, and the petition in error of Hazel Barnes Crowson was filed in this court on September 15, 1965.

J. J. McAlester, grandson of the testator, died after the trial but before the appeal was begun in this court; his widow, Mary S. McAlester, was thereafter properly substituted as a party in his place. On October 14, 1965, Mary S. McAlester filed a cross petition in error. Thereafter ...

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9 cases
  • Schroeder v. Danielson
    • United States
    • Appeals Court of Massachusetts
    • October 7, 1994
    ...897 (Ky.Ct.App.1992) ("Use of the term 'issue of the body' in a will shows an intent to exclude adopted children"); Moore v. McAlester, 428 P.2d 266, 270 (Okla.1967) (phrase "issue of her body" is used for "one purpose and one purpose only--to exclude adopted children"); Third Natl. Bank in......
  • Hines v. First Nat. Bank and Trust Co. of Oklahoma City
    • United States
    • Supreme Court of Oklahoma
    • October 1, 1985
    ...however, should not be eliminated as beneficiaries or devisees absent a clear and explicit expression to do so. 8 In Moore v. McAlester, 428 P.2d 266, 270 (Okla.1967), the testator created a life estate in her daughter with the remainder bequeathed to the issue of her (daughter's) body. The......
  • Third Nat. Bank in Nashville v. Stevens
    • United States
    • Court of Appeals of Tennessee
    • April 15, 1988
    ...87 N.E. 36 (1908) an adopted child was held to be not included in the phrase "heirs of the body" of the grantee. In Moore v. McAlester, Okla. 1967, 428 P.2d 266, (1967), it was held that the phrase "issue of her body" excludes adopted children. The Court The phrase, "issue of her body" has ......
  • Hurt v. Noble, 74962
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
    • June 11, 1991
    ...the phrase, "issue of her body" clearly evinces a testator's intent to exclude adopted children from the class described. Moore v. McAlester, 428 P.2d 266 (Okl.1967). The term, "issue" when used in a devise "to surviving issue of each deceased child" of a testator also has been held not to ......
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