Sims v. Billings

• Decision Date: 24 January 1933
• Docket Number: 21313.
• Citation: Sims v. Billings, 18 P.2d 1084, 162 Okla. 51, 1933 OK 34 (Okla. 1933)
• Parties: SIMS et al. v. BILLINGS et al.
• Court: Oklahoma Supreme Court

18 P.2d 1084

162 Okla. 51, 1933 OK 34

SIMS et al. v. BILLINGS et al.

No. 21313.

Supreme Court of Oklahoma

January 24, 1933

Rehearing Denied Feb. 14, 1933.

Syllabus by the Court.

1. Where a duly appointed and qualified administratrix with will annexed files in the county court having jurisdiction an application for the appointment of a successor and that court appoints a successor, the order of appointment is, in legal effect, an acceptance of the resignation of the administratrix with will annexed.

2. The power of appointment of an administrator with will annexed is not dependent on the filing of a final account by a former administratrix with will annexed.

3. The widow of a testator who named no executrix is entitled to preference in the appointment as administratrix with will annexed, and either she or some competent person whom she may request is entitled to the appointment without notice of the application for the appointment.

4. An election by a widow to take under the provisions of the will will not be enforced where it appears that it was not the result of intelligent and discriminating choice with full knowledge of the facts and where no interested person has changed his position in reliance upon the election to such an extent as to make it inequitable to permit the withdrawal thereof.

5. Under section 11224, C. O. S. 1921, the husband and wife while married, each becomes the forced heir of the other to the extent of one-third of the property owned by the other which interest cannot be bequeathed by the owner from such heir.

6. A county court, after determining that the deceased died testate prior to the amendment to section 11224, C. O. S 1921 (the will disposing of his entire estate), leaving surviving him a widow and other heirs, and that the widow has elected to take under the law rather than under the provisions of the will, is without authority of law to distribute more than one-third of the estate to the widow to the exclusion of the devisees and legatees named in the will.

7. Where the record in a case affirmative discloses the facts to be such that such court is without power in such case to make the order or decree it assumes to make, the same is void, and therefore subject to collateral attack for want of jurisdiction to the extent, at least, that such court is without power to make the same.

8. The provisions of subdivision 2, section 11301, C. O. S. 1921 are applicable "when any person having title to any estate not otherwise limited by marriage contract, dies without disposing of the estate by will, * * *" but they are not applicable where the estate has been disposed of by will.

9. Where the widow of a testator elects to take under the law rather than under the provisions of the will, a devise and bequest to her in the will lapses and, if not disposed of by other provisions of the will, passes under the laws of succession as though the testator had died leaving no widow surviving him.

Appeal from District Court, of Woods County; Arthur G. Sutton, Judge.

Action by Chris Sims and another against John Billings and others. From a judgment in favor of defendants, the plaintiffs appeal.

Reversed and cause remanded with directions.

RILEY, C.J., dissenting.

R. M. Chase and Mauntel & Spellman, all of Alva, for plaintiffs in error.

Hadwiger & Hadwiger and E. W. Snoddy, all of Alva, for defendants in error.

ANDREWS J.

This is an appeal from a judgment of the district court of Woods county, Okl., by the plaintiffs in error, who...