Seal v. Banes, Case Number: 23033

CourtSupreme Court of Oklahoma
Citation35 P.2d 704,168 Okla. 550,1934 OK 299
Docket NumberCase Number: 23033
PartiesSEAL et al. v. BANES et al.
Decision Date15 May 1934

1934 OK 299
35 P.2d 704
168 Okla. 550

SEAL et al.
BANES et al.

Case Number: 23033

Supreme Court of Oklahoma

Decided: May 15, 1934


¶0 1. Executors and Administrators--Sale of Real Estate to Pay Debts and Expenses of Administration--Statutory Procedure Mandatory.

Section 1067, O. S. 1931, requires that the probate jurisdiction of the county court must be exercised in the cases and in the manner prescribed by statute in order to confer jurisdiction upon the county court to sell the real estate of a deceased person to pay debts and expenses of administration.

2. Same--Notice of Hearing on Petition to Sell Real Estate--Mailing Copy to Minor Heir Residing in County with Mother Who Was Administrator Held not "Personal" Service.

The mailing of a copy of the order of the county court to show cause why an order should not be granted to the administratrix to sell so much of the real estate of the decedent as is necessary to pay debts, funeral expenses, expenses of the last sickness, and expenses of administration, addressed to a minor heir residing with its mother, who is the administratrix of the estate, in the county where the estate is being administered, is not personal service of said order upon said minor heir under section 1278, O. S. 1931.

3. Same--Duty of Administrator to Preserve Estate Until Distribution to Heirs.

Upon a person dying intestate the heirs of such person become immediately vested with the estate, and the estate is indefeasible, subject to the control of the county court and the possession of and management by the administrator, and it is his duty simply to preserve the estate until distribution to the heirs, unless, and in the manner provided by statute, the necessity should arise for a sale.

4. Same--Special Statutory Power Exercised by County Court in Ordering Sale of Real Estate.

A county court in ordering a sale of any of the real estate of a deceased person is exercising a special statutory power and not one that pertains to the ordinary settlement of the estate.

5. Same--Proceeding for Sale by Administrator not Proceeding in Rem--Notice to Heirs Jurisdictional.

Proceedings for the sale by an administrator of the real estate of the decedent are not proceedings in rem, but are, so far as the heirs are concerned, adversary; and notice to them is jurisdictional.

6. Judgment--Validity--Recital of Due Service of Process not Conclusive.

A general finding or recital in a judgment or order of a court of record, of due service of process, or notice, is limited by and restricted to the process or notice, if any there be, actually found in the record; and the validity of the judgment or order will depend on the sufficiency of such process or notice and service thereof.

7. Guardian and Ward--Mother as Natural Guardian not Responsible for Due Care of Estate of Children.

The mother, as guardian by nature or nurture, has no control over the estate of the children, nor is she under any responsibility for the due care of it.

8. Judgment--Probate Jurisdiction of County Courts--Verity Accorded Orders and Decrees.

County courts, under the Constitution, have original and general jurisdiction of all matters concerning probate and settlement of the estates of deceased persons. Their orders and decrees in such matters are entitled to the same verity as the orders and decrees of any court of record.

9. Executors and Administrators--Sale of Real Estate--Statutory Procedure Mandatory.

The authority of the county court to order a sale of real estate is limited by, and is derived from, the statute, and therefore can be exercised only for the purposes mentioned and in the manner prescribed by statute.

10. Same--Petition for Sale--Proof of Service of Order to Show Cause.

Jurisdiction to order the sale of realty by an administrator is invoked by filing the petition for a sale, and is not included in the general jurisdiction of the administration; and the court is without authority to hear the petition under section 1279, O. S. 1931, until satisfactory proof has been made of service of the order to show cause in compliance with section 1278, O. S. 1931.

11. Same--Sale Invalidated by Failure to Give Heirs Notice of Proceedings.

Failure to give the heirs notice of proceedings for the sale of real estate by the administrator and an opportunity to be heard in opposition thereto, makes the order for sale void.

12. Constitutional Law--Hearing Required, by law of the land.

In judicial proceedings the law of the land requires a hearing before condemnation, and judgment before dispossession.

13. Same--Judgment Rendered Without Jurisdiction or Notice to Party not Due Process.

No judgment of the court is due process of law, if rendered without jurisdiction in the court, or without notice to the party.

14. Executors and Administrators--Right of Minor Heirs by General Guardian Who Was Also Surety on Bond of Mother as Administratrix to Sue to Recover Land Sold by Administratrix.

Minor plaintiffs may, by their general guardian, who is also surety on the bond of their mother as administratrix of the estate of their deceased father, commence an action in ejectment, and to cancel of record in the office of the court clerk a certified copy of the order authorizing the administratrix to sell the land involved in the action, and the deed of the administratrix executed pursuant to said order, as a cloud upon the title of said minors.

15. Same--Limitation of Actions by Minor Heirs.

Under section 99, O. S. 1931, minor children of a deceased person by their general guardian may commence an action for the recovery of real property sold by administratrix upon order or judgment of a court directing such sale, within five years after the date of recording of the deed made in pursuance of the sale; or may, under section 100, O. S. 19-31, bring an action within two years after the disability is removed.

16. Same.

Under section 1311, O. S. 1931, any minor heir claiming under descent may, by his general guardian, commence an action for the recovery of any estate sold by an administrator within three years next after the sale, or may, under section 1312, commence an action at any time within three years after the removal of the disability.

Appeal from District Court, Oklahoma County; Tom G. Chambers, Judge.

Action by Kenneth Lee Banes et al. against Annie Corley Seal et al. Judgment for plaintiffs, and defendants appeal. Affirmed.

John B. Harrison and Hall & Thompson, for plaintiff in error.

Carter Smith, for defendant in error.

Geo. S. Ramsey, Christy Russell, and John S. Robinson, amici curiae.


¶1 Wilbert A. Banes died intestate in Kiowa county, Okla., August 14, 1921, married, and survived by his widow, Ruth Banes, and two minor children, Kenneth Lee Banes and Maxine Banes. At the time of his death he owned the real estate in Oklahoma county, Okla., involved in this action, which consists of certain platted lots outside of the corporate limits of Oklahoma City, Okla. Thereafter, and on January 17, 1922, the widow filed in the county court of Tulsa county, Okla., her verified petition for letters of administration upon the estate of the decedent. She was appointed administratrix of said estate and letters of administration were issued to her. Thereafter, and on September 28, 1922, acting upon purported authority granted her by said court, she sold the property hereafter mentioned to, C. B. Montgomery, who in turn deeded it to A. W. Corley, who thereafter died testate devising the property to his widow, now Annie Corley Seal, who is the record owner at this time. Kenneth Lee Banes and Maxine Banes, minor children of the deceased, by Oscar Cobb, their guardian, commenced an action in the district court of Oklahoma county, Okla., on May 21, 1930, against Annie Corley Seal, C. W. Seal, her husband, F. E. Harper and Roy J. Turner, defendants, alleging the appointment and qualification of the administratrix, that she filed a petition to sell the real estate involved to pay debts; and further alleging that such special proceeding in the administration proceedings to sell the real estate, and the deed of the administratrix, was void as to them, for the reason that the record and proceedings showed upon the face thereof that said minors resided in Tulsa county, Okla., and were residing there at the time said administration proceedings were commenced, and at the time the petition was filed praying for an order to sell real estate, and the order to show cause was issued; and that said notice to show cause was not personally served on all persons interested in the estate, and that they did not have a general guardian at said time, and that notice was not personally served upon them, as required by law; that they were adverse parties in said special proceeding, and that the sale as to their interest in said real estate was void; and claiming to own an undivided two-thirds interest in the property. The defendants all relied upon the validity of the administration proceedings and asserted their title based thereon. Upon issues being joined the cause was tried and judgment rendered on the pleadings in favor of the minors as to two-thirds of the property. The defendants appealed. The parties will be referred to herein as plaintiffs and defendants as they appeared in the trial court.

¶2 The plaintiffs contend that the administration proceedings upon the estate of the deceased father were void upon three grounds: (1) the decedent was a citizen and resident of Oklahoma county, Okla., at the time of his death and did not own or have any estate in Tulsa county, and, therefore, the county court of Tulsa county had no jurisdiction to administer upon his estate; (2) the real estate involved was the statutory family homestead at the time of the death of the decedent and was not subject to sale for the payment of debts of the decedent; and (3) that the minor plaintiffs, who were residing with their mother in Tulsa county, Okla., during...

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