Rogers v. Mosier

• Decision Date: 16 February 1926
• Docket Number: Case Number: 16692
• Citation: 1926 OK 153,245 P. 36,121 Okla. 213
• Parties: ROGERS et al. v. MOSIER et al.
• Court: Oklahoma Supreme Court

1926 OK 153

245 P. 36

121 Okla. 213

ROGERS et al. v. MOSIER et al.

Case Number: 16692

Supreme Court of Oklahoma

Decided: February 16, 1926

Syllabus

¶0 1. Wills--Contest Over Probate -- Issues--Extent of Construction. While in a contest over the probate of a will its construction is not before the court and cannot be determined, yet the court can examine the contents of the instrument to determine whether it is in fact a will, and where a conditional will is propounded and contested upon the grounds that the condition upon which the instrument was to become the will of decedent has been rendered impossible, a consideration of that question does not involve a construction of the will further than as an incident and to the extent of determining the validity of the instrument propounded as a will.

2. Same--"Conditional Disposition." A conditional disposition is one which depends upon the occurrence of some uncertain event, by which it is either to take effect or to be defeated, and a will, the validity of which is made by its own terms conditional, may be denied probate according to the event with reference to the condition.

Johnson & Johnson, for plaintiffs in error.

Robert S. Stuart, Dennison Wheelock, Houston B. Teehee, Horsley & Stith, and Humphrey & Spence, for defendants in error.

PHELPS, J.

¶1 W. E. Smith, a white man, was married to and lived with Reta Smith, a restricted Osage allottee, and on the 2nd day of September, 1921, they signed, published, and declared an instrument which they termed their "joint will," which was in words and figures as follows:

"Joint Will of W. E. Smith and Reta Smith, Osage Allottee No. 284.

"Know All Men by These Presents:

"That we, W. E. Smith, and Reta Smith, Osage Allottee No. 284, husband and wife, of Fairfax, Osage county, Oklahoma, both being of lawful age and of sound mind and memory, do make, publish and declare this instrument to be jointly as well as severally our last will and testament, hereby revoking all former wills.

"1. All just debts and funeral expenses shall be at all times fully paid.

"2. We therefore desire that all property, real and personal of which we, or either of us, may be possessed at the time of the decease of either of us, shall pass to the survivor in fee and to be and remain his or her absolute property.

"3. In the event of our simultaneous death, and that neither of us survive the other, we give and devise and bequeath our property and estate as follows: W. E. Smith gives, devises, and bequeaths all the property and estate of which he dies seized or possessed to his father. Thomas Smith, and Reta Smith devises and bequeaths the sum of five and no-100 dollars to her sister, Mollie Burkhart, and all the rest, remainder and residue of the property and estate of which she dies seized or possessed she gives and devises and bequeaths to her half-sister, Grace Bigheart or her bodily heirs in the event she is not living.

"4. In the event that said W. E. Smith dies before the death of the said Reta Smith, said Reta Smith further gives, devises and bequeaths the sum of five and no-100 dollars to her sister, Mollie Burkhart, and all the rest, remainder and residue of the property and estate of which she dies seized or possessed to her half-sister, Grace Bigheart, or her bodily heirs, in the event she is not living.

"In witness whereof, we have hereunto set our hands this 2nd day; of September, 1921.

"W. E. Smith,

"Reta Smith."

¶2 This will was, as to Reta Smith, approved by the Secretary of the Interior as required by law, and while said parties were still living together as husband and wife and while occupying the same bed in their home on the 10th day of March, 1923, at Fairfax, Osage county, Oklahoma, an explosion occurred in the home, resulting in the instant death of said Reta Smith and resulting in injuries to W. E. Smith, from which he died on March 14, 1923. This so-called joint will was duly admitted to probate as the will of Reta Smith, and her estate distributed according to the terms thereof, and the county court of Osage county found that W. E. Smith died intestate and appointed an administrator of his estate. The estate was duly probated and on the 10th day of September, 1924, distributed to Ella Rogers, his daughter by a former marriage, whom the court found to be his sole surviving heir. Thomas Smith, mentioned in the will as the father of W. E. Smith, having died on May 20, 1925, Bismark Mosier, an incompetent, a nephew of W. E. Smith, deceased, by his guardian V. M. Harry, filed his petition in the county court of Osage county, alleging that he was interested in said estate as an heir of Thomas Smith, his grandfather, and prayed that the so-called joint will be admitted to probate as the last will and testament of said W. E. Smith, deceased. To this petition Ella Rogers filed her petition in contest of such will, to which the county court sustained the demurrer of Bismark Mosier and ordered that the instrument be admitted to probate as and for the last will and testament of said W. E. Smith, deceased, from which order Ella Rogers prosecuted her appeal to the district court of Osage county, which, upon hearing, also found the instrument to be the last will and testament of said W. E. Smith, and ordered that it be admitted to probate, to reverse which Ella Rogers prosecutes her appeal to this court.

¶3 It appears from the record that it was stipulated in the county court that the evidence taken when the will was admitted to probate as the last will and testament of Reta Smith should be introduced and considered as the evidence in this case, and in the district court it was stipulated that:

"The parties agree that the instrument herein offered for probate as the last will and testament of W. E. Smith, deceased, was executed as a will in the manner the same purports to have been executed, and complies with the laws as to requirements of execution, and that W. E. Smith was competent to execute a will at the time the instrument was executed. It is further stipulated that W. E. Smith died at Fairfax, Oklahoma, on March 14, 1923, and that his wife, Reta Smith, died at Fairfax, Oklahoma March 10, 1923; and also that the instrument was executed without undue influence, fraud or duress."

¶4 These stipulations contained all the evidence introduced. It will, therefore, be seen that there was no disputed question of fact whatever. It is the contention of plaintiff in error that the instrument offered for probate was the conditional or contingent will of W. E. Smith--that it was the will of W. E. Smith only upon the happening of one of two contingencies: First, if he died before his wife died, his property, under the terms of the will should go to his surviving wife, Reta Smith; or, second, if he and his wife died simultaneously, that his property should go to his father, Thomas Smith, and that unless one of these contingencies occurred, it was not his will at all, and that, as it is admitted that he did not die until four days after his wife died the will, upon its face, plus the stipulations, show the nonexistence of the conditions or contingencies upon which the document offered should become the last will and testament of W. E. Smith, and it should not have been admitted to probate.

¶5 It is the contention of defendant in error that,...