Sparks v. Steele
| Decision Date | 26 September 1972 |
| Docket Number | R,No. 24,No. 45860,24,45860 |
| Citation | 501 P.2d 1106,1972 OK 127 |
| Parties | Betty SPARKS, Petitioner, v. The Honorable Charles E. STEELE, Associate District Judge of Okmulgee County, Judicial Districtespondent. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
The language 'in the discretion of the court,' contained in 58 O.S.1971 § 125, was intended only to negate any idea that the provision, in the same statute, that letters of administration 'must' be granted to the guardian of a minor entitled to administration gives such a guardian a preference over others in the same priority-classification as the minor, which, under 58 O.S.1971 § 124, the minor would not have if an adult.
Petitioner, as guardian of the person and estate of minor child of decedent who left no spouse and no other child surviving him, asks this court to assume jurisdiction and to issue a writ commanding the respondent judge to revoke the appointment of the decedent's father as administrator and to appoint her as administratrix of the decedent's estate as prayed for by her in a petition filed pursuant to, and in accordance with, 58 O.S.1971, § 129. Jurisdiction assumed, and writ granted.
Ernest W. Smith, Henryetta, for petitioner.
Stipe, Gossett & Stipe, McAlester, Bailey, Ash & Romine by Edwin W. Ash, Okmulgee, for respondent.
In this original proceeding, the petitioner, Betty Sparks, as the guardian of the person and estate of Sherri Lynn Sparks, a minor and only child of Johnny Lee Sparks, deceased, asks this court to assume jurisdiction, and to prohibit the respondent, Charles E. Steele, as Associate District Judge of Okmulgee County, Oklahoma, from proceeding further in the administration of the estate of Johnny Lee Sparks, deceased, with Raymond Sparks, father of the decedent, as the administrator, and commanding him to vacate the appointment of Raymond Sparks as administrator of the estate and appoint her as administratrix. We assume jurisdiction, and, for the reasons set forth herein, grant the relief sought by the petitioner.
Johnny Lee Sparks died, intestate, in and while a resident of Okmulgee County, Oklahoma, on March 16, 1972, as the result of injuries sustained when a car he was driving was struck by a Frisco train in Henryetta in that county. He was survived by one child, Sherri Lynn Sparks, then five years of age, and his mother and father. He had been divorced from the child's mother, on October 23, 1970, and, as a result of the decree, the child had been, and then was, living with her mother, the petitioner herein, at 1023 East 63rd Street, in Tulsa, Oklahoma. Since the divorce, he had been living with his parents near Henryetta, in Okmulgee County.
On May 18, 1972, the father filed in the District Court of Okmulgee County, his application for appointment as administrator of the estate, stating that the estate consisted of a claim for wrongful death against the railroad and an individual, and that the heirs at law were Sherri Lynn Sparks, daughter, 5 1/2 years of age, whose residence was 1023 East 63rd Street, Tulsa, Oklahoma, and Raymond Sparks, father, and Alice Sparks, mother, both residing on Route 3, Henryetta, Oklahoma.
On the same day, the respondent judge found that the applicant was the father of the decedent and should be appointed administrator 'instanter,' Raymond Sparks executed the prescribed oath as administrator, and letters of administration were issued to Raymond Sparks by the respondent judge.
On June 9, 1972, within thirty days after the appointment of Raymond Sparks as administrator, Betty Sparks, as guardian of Sherri Lynn Sparks, the minor daughter of the decedent, filed in the same cause her petition contesting the appointment of Raymond Sparks, theretofore made, and asking that she be appointed as administratrix. A certified copy, attached to that petition, shows that she had executed the prescribed oath, and that letters of guardianship, as guardian of the person and estate of Sherri Lynn Sparks, a minor, had been issued to her by the District Court of Tulsa County, Oklahoma, on June 2, 1972.
A certified copy of an order attached to her petition in this court shows that her above-mentioned petition came on for hearing before the respondent judge, on June 20, 1972, with her appearing in person and by attorney and Raymond Sparks, who had theretofore been appointed as administrator, appearing in person and by counsel; that the court heard the testimony of witnesses, examined the records and exhibits introduced in evidence, found that her petition and contest should be denied, and ordered that Raymond Sparks continue as administrator and that the petition of Betty Sparks for appointment as administratrix be denied.
Raymond Sparks, Administrator of the Estate of Johnny Lee Sparks, Deceased, commenced an action in the District Court of Creek County, Oklahoma, against the St. Louis & San Francisco Railroad Corporation and Marion M. McPherson as engineer of the train involved in the collision with the decedent's car, for damages arising out of his injuries and death. A first cause of action, for the benefit of the estate and all of the heirs of the decedent (listed therein as the father, mother and minor daughter), prays for $100,000.00 for decedent's conscious pain and suffering, hospital and doctor bills of $40.00, funeral bill of $1,636.50, and $239.00 for a monument. A second cause of action, for the express benefit of the father and mother, alleges pecuniary loss to them, and prays for judgment, in the amount of $47,388.00. A third cause of action, for the express benefit of the minor daughter, alleges pecuniary loss to her of $200.00 per month during her minority, and prays for judgment in the amount of $30,000.00.
The petitioner alleges in this court in substance and effect, that, in denying her petition for appointment as administratrix, filed in conformity with 58 O.S.1971 § 129, within thirty days after the appointment of Raymond Sparks as administrator, the respondent judge assumed judicial power not granted by law; and that her remedy by appeal to this court from that order is not equally adequate with the relief sought herein because, in the absence of the order prayed for herein, the damage action would be tried, or settled, without due consideration for the rights and interests of her ward, a minor and sole heir-at-law of the decedent, before such an appeal could be determined by this court.
58 O.S.1971 § 122 provides:
'Administration of the estate of a person dying intestate must be granted to some one or more of the persons hereinafter mentioned, and they are respectively entitled thereto in the following order:
'If the decedent was a member of a partnership at the time of his decease, the surviving partner must in no case be appointed administrator of his estate.'
58 O.S.1971 § 126 provides, in part:
'No person is competent to serve as administrator or administrarix, who, when appointed, is:
'1. Under the age of majority.
'* * *.'
58 O.S.1971 § 125 provides:
'If any person entitled to administration is a minor, letters must be granted to his or her guardian, or any other person entitled to letters of administration, in the discretion of the court.'
58 O.S.1971 § 127 prescribes the requisites of a petition for letters of administration, and 58 O.S.1971 § 128 prescribes the notice to be given of a hearing on such a petition. Section 128 concludes with a proviso that: 'if the petition asks for the appointment of some person entitled under the law to appointment, and there shall accompany such petition a...
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Powell v. Dicksion (In re Estate of Dicksion), 107,295.
... ... 29 .Title 58 O.S.2001 122, see note 2, supra. 30 .Title 58 O.S.2001 122, see note 2, supra. In Sparks v. Steele, 1972 OK 127, 501 P.2d 1106 the Court noted that [t]he right to appointment as administrator is a matter of statutory law, so appointment ... ...
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Murg v. Barnsdall Nursing Home
... ... We have held that persons allowed to challenge a petition for letters of administration include the guardian of the decedent's minor child. Sparks v. Steele, 1972 OK 127, 501 P.2d 1106. In Sparks, the guardian of the decedent's minor child argued that unless she were appointed, a wrongful ... ...
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Murg v. Barnsdall Nursing Home
... ... We have held that persons allowed to challenge a petition for letters of administration include the guardian of the decedent's minor child. Sparks v. Steele, 1972 OK 127, 501 P.2d 1106. In Sparks, the guardian of the decedent's minor child argued that unless she were appointed, a wrongful ... ...
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Stewart v. Judge of 15th Judicial Dist.
... ... is sometimes stated: 'the availability of another remedy does not prevent granting of prohibition if other remedy is not equally adequate;' Sparks v. Steele, 501 P.2d 1106 (Okl.1972) ... As previously mentioned, examination of the application and petition for the writ indicates ... ...