Van Duyne's Estate, In re

• Citation: 205 Okla. 440,239 P.2d 387
• Decision Date: 06 November 1951
• Docket Number: No. 34286,34286
• Parties: In re VAN DUYNE'S ESTATE. NELSON v. VAN DUYNE.
• Court: Supreme Court of Oklahoma

Page 387

239 P.2d 387

205 Okla. 440

In re VAN DUYNE'S ESTATE NELSON v. VAN DUYNE.

No. 34286.

Supreme Court of Oklahoma.

Nov. 6, 1951.

Syllabus by the Court.

1. In order to make a specific legacy effective the property bequeathed must be in existence and owned by the testator at the time of his death. A conveyance of real property after the execution of a will disposing thereof operates as an implied revocation and an ademption of the devise.

2. Where the doctrine of ademption by alienation has been invoked or is applicable, a devise does not pass the proceeds of a sale made during the testator's lifetime of the subject-matter of such devise.

3. An order settling the final accounts of an executor and determining the amount in his hands for distribution, fixes the character of the fund; and an objection that part of it does not belong to the estate cannot be urged on an appeal from the order of distribution, as probate court has no jurisdiction to determine the rights of those claiming adversely to the estate.

4. On appeal from the county court in probate proceedings, the district court has appellate jurisdiction only, and can pass upon only such issues as were presented and tried in the county court.

5. Record and evidence examined, and held sufficient to sustain the judgment.

Lloyd R. Lowry, Weatherford, Geo. M. Nicholson, Oklahoma City, for plaintiff in error.

Milton Keen, Clinton, for defendant in error.

JOHNSON, Justice.

This is an appeal by plaintiff in error, Frank James Nelson, from a portion of an order for the distribution of the estate of Jennie E. Van Duyne, deceased, wherein the district court of Custer County, Oklahoma, in a probate proceedings appealed from the county court, reversed in part, the order of distribution of the county court.

On August 9, 1949, Walter J. Van Duyne petitioned the county court for probate of the will of Jennie E. Van Duyne describing the assets of her estate as money on deposit in the Security State Bank at Weatherford, Oklahoma, of approximately $6,700 and asserting that deceased left a will, the pertinent parts of which provided:

'3. I give and devise to my son, Frank James Nelson, the house and lots which is now my home, being Lots 8 & 9, in Block 56, in the original town of Weatherford, said county and state, but not the contents of said house, nor the furniture nor the personal effects.

* * *

* * *

'6. All the rest and residue of my property, real and personal, of every kind and wherever situated, * * * I devise and bequeath to my son, Walter J. Van Duyne, absolutely free and clear of any conditions or restrictions whatever. I have perfect confidence that my said son, Walter J. Van Duyne, will properly share my personal effects with my son, Frank James Nelson; but I make no requirements nor restrictions on this whatsoever.

'7. I hereby appoint and designate my son, Walter J. Van Duyne, sole executor without bond of this my last will and testament.'

Thereafter an inventory was filed stating that the assets of the estate, inter alia, consisted of $6,762.84, which belonged to the deceased at the time of her death.

Thereafter, the executor, Walter J. Van Duyne, filed his final account, listing as assets of the estate, a one-third mineral rights in SW 1/4 of Section 34-13-14, Custer County, Oklahoma and $6,676.51. In the final account he stated: 'That said Will of said Jennie E. Van Duyne provided that Lots 8 & 9, in Block 56, in the original Town of Weatherford, in Custer County, Oklahoma, be devised and given to her son, Frank James Nelson. That after the execution of said Will, and before her death, the said Jennie E. Van Duyne sold and conveyed said Lots 8 & 9, above described, to other parties not connected with said estate; and that thereby, said devise to said Frank James Nelson adeemed. That said Lots 8 & 9 never came into the hands of this executor, and were not, and are not a part of said real estate.'

In the petition for distribution, the executor said: '* * * That as stated in said Final Account, the gift and devise to said Frank James Nelson has adeemed. That under the terms and provisions of said Will, all of the rest and residue of the property and money belonging to the estate of decedent, and now in the hands of said executor is given, bequeathed, and devised to said Walter J. Van Duyne, * * *.'

Thereafter Frank James Nelson filed verified objections to the proposed distribution, in which he alleged:

'1. That he is the son of Testratrix, Jennie E. Van Duyne, and a beneficiary under her will, he having been devised certain realty, namely:

'All of lots 8 & 9 in Block 56, Original Town of Weatherford, Custer County, State of Oklahoma.

'2. That Executor, Walter J. Van Duyne, also a son of testatrix and a beneficiary under her said will, claims in his petition for distribution that the above described real property, having been conveyed by testatrix prior to her death, constitutes ademption of the devise above set out, and that subject matter of said devise in its changed form should be distributed to him as the residuary legatee.

'3. That said described real property was conveyed by said Jennie E. Van Duyne, testatrix, during her lifetime, at the suggestion of the devisee thereof, Frank James Nelson aforesaid, after conference with the said executor, Walter J. Van Duyne, who readily consented thereto, and that said property was sold for the purpose of providing room, board and nursing and medical service for said testatrix during her last illness, it being understood by all parties concerned that the remainder of the proceeds of the sale of said property, upon the death of said testatrix, would go to said Frank James Nelson.

'4. That of the proceeds of the sale of said property there remains in the bank a balance of $6,000.00, that said balance represents a part of the proceeds of the sale of the property and is the same subject matter in a changed form of the property devised by said will to said Frank James Nelson and properly belongs to him.

'Wherefore Frank James Nelson, the objector herein, prays that the court decree to him the said bank balance of $6,000.00.'

The cause upon this issue was submitted to the county court which found and ordered that the proceeds from the sale of lots 8 and 9 in Block 56 in the town of Weatherford belonged to Frank James Nelson and ordered the payment thereof to him.

The executor appealed from that order on the grounds:

'(1) That the devise and gift to Frank James Nelson contained in said Will is a special devise and gift, and that the same was revoked and adeemed by the sale, disposal and alienation of said property by testatrix during her lifetime.

'(2) That distribution of said money should be made under said residuary clause of said Will to Walter J. Van Duyne.

'(3) That distribution of said money to said Frank James Nelson is contrary to law.

'(4) That refusal to distribute said money to said Walter J. Van Duyne is contrary to law.'

Upon trial in the district court the parties stipulated:

'* * * it is hereby agreed and stipulated by and between the parties, Frank James Nelson and Walter J. Van Duyne, and their attorneys, as follows:

'1. The relationship between testatrix, Jennie E. Van Duyne, and her two sons, Frank James Nelson and Walter J. Van Duyne, or between her and either of them, did not change between the time of making her will and the date of her death.

'2. That Jennie E. Van Duyne died in August of 1948, and at the time of her death, had a cash deposit in the Security State Bank of Weatherford, Oklahoma, of $6,767.51, and held a one-third royalty interest in 160 acres of land in Custer County, Oklahoma, and owned no other property whatsoever.

'3. That decedent left as her sole and only heirs, the following and no others, to-wit: Frank James Nelson, her son by her first marriage; and Walter J. Van Duyne, her son by her second and last marriage. Both husbands of decedent had preceded her in death, and she was widowed and unmarried and single at the time of her death.

'4. That decedent left a valid Will, which was proved, and admitted to probate herein on the 21st day of August, 1948, and which Will has never been contested by any person or persons at any time.

'5. That the only devise, gift, bequest or benefit to the said Frank James Nelson contained in said Will, and the only mention thereof, is contained in Numbered Paragraph 3 of said Will, and is in exact words as follows, to-wit: '3. I give and devise to my son, Frank James Nelson, the house and lots which is now my home, being Lots 8 & 9, in Block 56, in the original town of Weatherford, said county and state, but not the contents of said house, nor the furniture nor the personal effects.'

'6. That the residuary clause in said Will is contained in Numbered Paragraph 6 of said Will, and is in exact words as follows, to-wit: '6. All the rest and residue of my property, real and personal, of every kind and wherever situated, whether vested or contengent at the time of my death, I devise and bequeath to my son, Walter J. Van Duyne, absolutely free and clear of any conditions or restrictions whatever. I have perfect confidence that my said son, Walter J. Van Duyne, will properly share my personal effects with my son Frank James Nelson; but I make no requirement nor restriction on this whatsoever.'

'7. That after the execution of said Will (executed on April 10, 1946), and less than thirty days before her death, the said Jennie E. Van Duyne executed her deed and conveyed her entire interest in and to said Lots 8 & 9, in Block 56, in the original town of Weatherford, to a person not interested in this estate. That at the time of her death, the decedent, Jennie E. Van Duyne had no interest whatsoever in or to said Lots 8 & 9, above described.

'8. The amount of money now remaining in the hands of the Executor, and which money is now on deposit in the Security State Bank at Weatherford,...