Scott v. McGirth
| Decision Date | 28 February 1914 |
| Citation | 139 P. 519,41 Okla. 520,1914 OK 99 |
| Parties | SCOTT ET AL. v. MCGIRTH. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
A proceeding to probate a will pending in the United States Court at Wewoka, at the time of the admission of the state into the Union, which was transferred to the district court of Seminole county, and by such court transferred to the county court of Seminole county, and by that court transferred to the county court of Hughes county, and was pending in said last-named court when a petition to set aside the probate of the will was filed, held, that the county court of Hughes county is the successor in probate matters of the United States Court for the Western District of the Indian Territory, and the proper court in which to file a petition to set aside the probate of a will, probated in the United States Court for the Western District of the Indian Territory at Wewoka.
A county court coextensive with the county is a court of original jurisdiction in all probate matters.
The courts of original jurisdiction of this state are deemed to be the successors of all courts of original jurisdiction of the territories, and as such take and retain custody of all records, documents, journals, and files of such territorial courts.
In construing section 5166, Comp. Laws 1909, as applied to infants and persons of unsound mind, said section must be read and construed in connection with section 5172, Comp Laws 1909, and when so read and construed it seems clear that the latter section relieves an infant of the diligence required of adults, under section 5166, to contest the probate of a will within one year, or to show that the evidence relied upon was discovered since the probate of the will. Section 5172 gives an infant a right to contest the probate of a will upon either or all of the four grounds specified in said section 5166, free from conditions precedent in respect to diligence specified in said last section.
Where a petition to set aside the probate of a will, under section 5166, Snyder's Laws 1909, is neither signed nor verified the remedy is by motion to strike the petition from the files, and not by general demurrer.
An objection for want of signature or verification to a petition to set aside the probate of a will cannot be raised for the first time on appeal.
Commissioners' Opinion, Division No. 1. Error from District Court, Hughes County; John Caruthers, Judge.
Action by Lena McGirth, by her guardian, Felix P. Canard, against Evans Scott and Alexander M. Butts. Judgment for plaintiff overruling demurrer, and defendants bring error. Affirmed.
Warren & Miller, of Holdenville, for plaintiffs in error.
B. T Buchanan and W. W. Witten, both of Okmulgee, and B. N. Hicks of Oregon City, Or., for defendant in error.
RITTENHOUSE, C. (after stating the facts as above).
The first question raised by the demurrer is "that the court has no jurisdiction of the subject-matter of the action, in that it affirmatively appears from the face of the petition that the said will was probated in the United States Court for the Western District of the Indian Territory, sitting at Wewoka, Ind. T., and therefore this court has no jurisdiction to try said petition for revocation under the law." It is argued very extensively that the county court of Hughes county is not the successor of the United States Court for the Western District of the Indian Territory in probate matters, and therefore the contest in this cause was not filed in the court in which the will was proved, as required by section 5166, Snyder's Comp. Laws Okl. 1909. The will was probated in the United States Court at Wewoka, and after statehood the cause was transferred to the district court of Seminole county under section 27 of the Schedule of the Constitution, which provides: "All cases, civil and criminal, pending, at the time of the admission of the state into the Union, in the district courts of the territory of Oklahoma, in any county within the district, and the records, papers, and proceedings of said district court, and the seal and other property appertaining thereto, shall be transferred into the district court of the state for such county, except as is provided in the Enabling Act of Congress, and all cases, civil and criminal, pending, at the time of the admission of the state into the Union, in the United States Court for the Indian Territory, within the limits of any county created in whole or in part within the limits of what was heretofore the Indian Territory, and all records, papers, and proceedings of said United States Courts for the Indian Territory, and the seal and other property appertaining thereto, shall be transferred to the district court of the state for such county, except as is provided in the Enabling Act of Congress and the amendments thereto: Provided, that the Legislature may provide for the transfer of any such cases from one county to another county."
Afterwards the district court of Seminole county transferred said cause to the county court of the same county, under section 23 of the Schedule of the Constitution, which provides:
Under the provisions of section 27, supra, of the Schedule, the Legislature of Oklahoma passed the following act:
Section 536, Snyder's Comp. Laws 1909: "That all those civil cases transferred from the courts of the territory of Oklahoma and the United States Courts in the Indian Territory to the courts of this state, as transferred by Acts of Congress and accepted by the Constitution, which would have been properly triable in any court, or county or district of this state, had such suit or proceeding been commenced after the admission of this state into the Union, including records formerly belonging to the United States Commissioners' Courts and all papers of mayors of cities and incorporated towns having and exercising ex officio jurisdiction as United States commissioners in that part of the state formerly known as Indian Territory, that may be in the hands of the clerks of the various district courts of that portion of the state may, including probate matters, by any person having a substantial interest therein, on petition verified by the affidavit of the applicant or his attorneys of record, filed with the judge or clerk of the court where such cause is pending within sixty days after the passage and approval of this act, be transferred to the proper courts of such county or district, and that all books, records, pending cases, papers, proceedings, liens, judgments and executions pending in a justice of the peace court of any county are hereby transferred to some justice of the peace court of the county in which if originally brought in said court, the defendant lives, or if the defendant be a nonresident, then to the county where the plaintiff lives, or the defendant has property, and when such records are transferred as above provided for, said court shall have full and complete jurisdiction of all cases and proceedings so transferred."
Again, the Legislature of Oklahoma provided by the Laws of 1910, c. 25, p. 37, as follows:
Section 1: "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 his 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 copy of all orders and judgments, upon the payment of all accrued costs."
Section 2: "All transfers of records, suits or proceedings of a probate nature which, by Acts of Congress and the Constitution, were transferred from the territory of Oklahoma and the United States Courts in the Indian Territory to the courts of this state, and thereafter transferred to another county, where such county would have been the proper venue for such suit, matter or proceeding, been commenced after the admission of such state into the Union, be and the same are...
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