Rettenmeyer's Estate, In re

• Decision Date: 27 October 1959
• Docket Number: Nos. 37673,37728,s. 37673
• Citation: 1959 OK 199,345 P.2d 872
• Parties: In the Matter of the ESTATE of Rosa B. Wright RETTENMEYER, Deceased.
• Court: Oklahoma Supreme Court

Page 872

345 P.2d 872

1959 OK 199

In the Matter of the ESTATE of Rosa B. Wright RETTENMEYER, Deceased.

Nos. 37673, 37728.

Supreme Court of Oklahoma.

Oct. 27, 1959.

As Amended Nov. 13, 1959.

Syllabus by the Court

1. In cases of equitable cognizance the appellate court will examine and weigh the evidence, but the findings and judgment of the trial court will not be disturbed on appeal unless it appears that they are clearly against the weight of the evidence.

2. Where surviving spouse files election to take under the law of succession and not under the will, such action does not constitute violation of 'no contest' provision in the will.

3. Matters decisive of the distribution to be made of the estate of a deceased are properly heard and determined at the hearing on the final account and petition for distribution after proper order and notice.

4. Executor is entitled to possession of all real and personal estate, with certain exceptions, and the rents and profits therefrom, until estate is settled or delivered over by order of the county court to the devisees. 58 O.S.1951 § 290.

5. Where will did not designate specific source from which taxes, debts, and expenses of administration was to be paid, but all estate property was disposed of by will, residuary estate would, under Oklahoma law, bear burden of all debts, including taxes and costs of administration. 84 O.S.1951 § 3.

6. No supersedeas bond is necessary in order to appeal from the district courts of Oklahoma to the Supreme Court.

Appeal from the District Court of Creek County; Jess I. Miracle, Judge.

Proceeding in the estate of Rosa B. Wright Rettenmeyer, Deceased. From a judgment of the District Court ordering distribution in accordance with will of deceased, the executor and its attorneys, beneficiaries and their representatives appeal. Affirmed in part and reversed in part and remanded with instructions.

Young, Young & Young and Glenn O. Young, Sapulpa, for Mary Jane Hopkins, nee Wright, and others.

Looney, Watts, Looney & Nichols, Oklahoma City, Sam T. Allen, III, Sapulpa, Moraul Bosonetto, Sapulpa, for Francis X. Rettenmeyer, executor, and others.

Embry, Crowe, Tolbert, Boxley & Johnson, Oklahoma City, pro sese and for The First National Bank and Trust Company of Oklahoma City, executor.

John M. Freese, Tulsa, for Clarence Denham, and others.

DAVISON, Chief Justice.

This is an appeal on the original record from a judgment of the District Court, on appeal from the County Court, on the rendition of the final decree in the Estate of Rosa B. Wright Rettenmeyer, deceased, hereinafter referred to as Rosa.

The trial court held that the estate of deceased should be distributed in accordance with the will of deceased; that the ante-nuptial contract of deceased; and her husband was in force and effect; that there had been no violation of a 'no contest' clause in a codicil to the will; that there was no need to appoint a special executor to pursue proceeds of government bonds or an accounting of funds and properties of deceased; denying apportioning of Federal Estate Taxes, and allowed executor's and attorney's fees.

Appeal is made by Mary Jane Denham Hopkins, nee Wright, Donald George Fleming, Leona Holcomb, nee Denham, Frank, George and Clarence Denham; and May Denham, Dorothy Denham and Carolyn Denham, now Lumley, heirs of Ed Denham, deceased; hereinafter referred to as Denham Devisees. These appellants contend: (1) That the acts of Joseph A. Rettenmeyer (husband of Rosa), while alive, and by his executor and heirs violated the 'no contest' clause of the will of Rosa. (2) The lower court should have appointed a special executor to recover $191,864.62, proceeds of sale of United States Bonds, used almost in its entirety to purchase two annuity policies, and for damages for conversion of said bonds. (3) That the lower court should have required an accounting by the executor of the estate of Joseph A. Rettenmeyer and his devisees and successors of funds and property allegedly wrongfully taken from Rosa, while she was allegedly impaired in mind and body and incompetent.

Appeal is also made by Francis X. Rettenmeyer, executor of the Estate of Joseph A. Rettenmeyer, deceased, hereinafter referred to as JAR, and was docketed by the clerk of this court as No. 37728 and same is consolidated with No. 37673 for opinion by this court. This appellant contends the lower court erred: (1) In remanding to the County Court an application to surcharge the Denham Devisees for rental value of the homestead. (2) In finding the antenuptial contract of Rosa and JAR was in force and effect and that an intermediate order of the County Court finding such contract was destroyed and revoked and a subsequent dismissal by the District Court of an appeal from such order did not constitute a final adjudication of such fact. (3) In distributing one-eleventh under the will rather than one-half under the laws of succession to the estate of JAR. (4) In failing to apportion federal estate taxes so the 'marital deduction' would not be burdened with any part thereof.

First National Bank and Trust Company, executor, and Embry, Crowe, Tolbert, Boxley and Johnson, attorneys for executor, filed cross-appeals and complain they were not adequately compensated for their services.

From the record it appears that in 1925 Rosa and Cal Wright (her then husband), being childless, took into their home six nieces and nephews of Rosa, being Frank, Edward, George, Clarence, Leona and Mary Jane Denham (age five and youngest); in 1928 Cal died; in 1932 Rosa legally adopted Mary Jane; that Rosa was a capable and energetic person and actively continued the oil and gas business of her late husband until the middle 1940s, when she sold it retaining numerous mineral interests. JAR had married the sister of Cal Wright and they had three children, Francis X., Raymond and Forrest, and his wife had died. In 1937 Rosa and JAR were married after entering into an ante-nuptial contract wherein each released any interest in the property of the other.

In 1941 and 1946 Rosa bought annuities whereby each paid to each of the original six Denhams $50 per month for life except Clarence did not share in the last annuity but was given a farm instead.

On July 24, 1946, Rosa, age 76, executed her will as drawn by her attorney wherein she directed payment of all her just debts and after a relatively small bequest left her estate in equal parts to Mary Jane Wright Hopkins; Frank, Edward, George and Clarence Denham; Leona Denham Holcomb; Raymond, Francis X. and Forrest Rettenmeyer; JAR and Donald George Fleming (son of Leona); appointing First National Bank and Trust Company executor and designating the Embry law firm as attorneys.

On February 2, 1949, Rosa suffered a stroke which paralyzed her right side and impaired her speech and which, after her initial recovery, confined her to a wheel chair. On advice of her attorney Rosa executed a power of attorney to JAR to lease certain lands for oil and gas and draw on certain bank accounts. In 1950, after conferences with her attorneys, a tax adviser and the insurance representative who handled the two previous annuities, Rosa had United States bonds converted into cash and bought the following described annuities: in October, 1950, upon payment of a single premium of $25,143.03, a policy for $33,000 was purchased for Donald George Fleming, age 11 (son of Leona Holcomb), with life ownership in Rosa and JAR, or survivor, with payments beginning at the expiration of 15 years and payable monthly over a period of 20 years. (Rosa and JAR are both dead and this policy is in force); in December, 1950, upon payment of a single premium of $162,606, a policy was purchased payable $1,000 per month to Rosa and after her death $1,000 per month to JAR, if he survived, and the balance, 123.07 per month to each of four nieces and nephews of Rosa, (other than the six original Denhams) and Frank X. (Francis X.), Raymond and Marion Rettenmeyer (widow of Forrest) and $23.08 per month to each of the original six Denhams. (On the date of this policy Rosa was age 80 years and six months and received $24,000 and JAR was 83 years and two months and received $15,000 from the policy before his death.

On November 22, 1950, Rosa made her first codicil to her will which, so far as pertinent here, substituted Marion Rettenmeyer for her deceased husband, Forrest Rettenmeyer, and on January 30, 1951, Rosa made her second codicil setting forth a 'no contest' provision and depriving any contestant of any interest in the estate.

In the 'Summer' of 1951 Rosa suffered a second stroke and was confined to her bed and on July 31, 1952, JAR was appointed guardian of her person and another party appointed guardian of her estate. In December, 1952, Rosa died (age 82 years) and the guardianship terminated.

On January 12, 1953, Rosa's will was admitted to probate and inventory and appraisement revealed an estate in excess of $289,000.

On the question of whether the trial court erred in refusing to appoint a special administrator to recover the proceeds of the sale of the United States bonds and for an accounting, the record and the above resume of the facts reflects a remarkable series of acts and events sufficient to support the findings and judgment of the trial court on this question. We have reviewed the record and find that the holding of the court was correct and we so hold. Copenhaver v. Copenhaver, Okl., 317 P.2d 756.

The Denham Devisees urge that the acts of JAR and the executor of his estate and his heirs and devisees constitute a breach of the 'no contest' clause and that no part of the estate of Rosa should be distributed to the estate of JAR or the Rettenmeyer devisees named in the will. The 'no contest' clause of the codicil provision reads as follows:

'* * * direct that if any devisee, legatee or beneficiary under my said will, as so qualified and republished, together with such codicil and...