Syllabus
by the Court.
1.
Where the probate court, having jurisdiction of the probate
of a will, admits such will to probate, and such order and
judgment become final, it cannot be attacked collaterally in
the district court in a suit in ejectment brought by the
heirs to dispossess the devisee under the will of real estate
devised to him by the terms of such will.
2. It
is not necessary that the attestation clause of witnesses be
attached to the will, in order to make the will valid. In its
absence it can be shown by competent evidence that the will
was attested as required by law. If the will was signed by
witnesses, the absence of the attestation clause simply
changes the mode of proof that the will was witnessed as
required by law.
Error
from district court, Logan county; before Justice John H
Burford.
Action
by Rosetta Ward and others against the board of county
commissioners of Logan county and others. Judgment for
defendants, and plaintiffs bring error. Affirmed.
BEAUCHAMP
J.
The
facts in this case are substantially as follows: On the 29th
of November, 1899, John T. Hart made and executed his last
will and testament, by which will he bequeathed all of his
estate, both real and personal, to the county commissioners
of Logan county, Okl.,--said estate to be used for the
benefit of the dependent orphans of said Logan county; and by
the terms of the will he intrusted to one Albert Ploeger the
care of said estate until the said commissioners could take
charge thereof. About a week after the execution of said will
the testator died. On the 2d day of December, 1899, Albert
Ploeger filed his petition for the probate of said will in
the probate court of Logan county, alleging the
jurisdictional facts, and asked that a day be fixed for the
hearing of said petition. Thereupon the court set the 6th day
of January, 1900, for the hearing of said petition, and
notices were duly given and published. On the 6th day of
January, 1900, the heirs of said John T. Hart, plaintiffs in
error herein, filed their objections to the probate of said
will for the following reasons, to wit: "First. That
said John T. Hart was incompetent to make a last will and
testament on or about the 29th day of November, 1899. Second.
That said paper purporting to be the last will and testament
of the said John T. Hart was unduly executed, in this: (a)
That said paper was not signed by the testator in the
presence of the witnesses thereto; (b) that Albert Ploeger
was not a qualified witness, being named as executor and
trustee therein; (c) that the signatures of said witnesses
were not attached to said paper at the request of the said
John T. Hart, and in his presence and in the presence of each
other. Third. That the party named in said paper purporting
to be the last will and testament of the said John T. Hart
as devisee, is not capable in law to take property of any
kind or character by will, and is not authorized by law to
take property by will from any person or persons. Fourth.
That said paper purporting to be the last will and testament
of said John T. Hart is void for uncertainty, and the objects
stated are not set forth with sufficient certainty to enable
any one to execute the trust; that there is a fatal
uncertainty as to the charitable scheme attempted to be
provided for in said paper."
Thereupon
a hearing was had upon said petition, pursuant to the notices
given, and after said hearing the following order was made by
the probate court, omitting the caption:
"Be
it remembered that on the day of the date hereof, at a
regular term of the said probate court, pursuant to notice
duly given, the last will and testament of John T. Hart,
late of Seward township, in said Logan county, deceased,
bearing date the 29th day of November, 1899, and being the
annexed written instrument, was duly proved before the
probate court in and for the county of Logan, and territory
aforesaid, and was duly allowed and admitted to probate by
said court, according to law, as and for the last will and
testament of said John T. Hart, deceased, which said last
will and testament, and the examination taken thereon, are
duly filed and recorded in the records of this court. In
witness whereof, the judge of the probate court of said
county has hereunto set his hand and the seal of the said
court at the city of Guthrie, in said county, this 6th day
of February, A. D. 1900."
Thereafter,
and on the same day, the heirs, plaintiffs in error, filed
their motion for a new trial, which motion was on said 6th
day of February, 1900, overruled, and the probate court made
the following order, omitting the caption:
"On
reading and filing the affidavit of F. H. Greer, publisher
of the Guthrie State Capital, a newspaper published in
Logan county, and territory of Oklahoma, showing due
publication of a notice of hearing of the petition and
proofs of the execution of the last will and testament of
John T. Hart, late of Logan county, territory of Oklahoma,
deceased, as required by the order of this court dated
December 2, A. D. 1899. The executor, Albert Ploeger, and
the board of county commissioners appeared by John
Devereux, deputy county attorney, and the heirs of the said
John T. Hart appeared by Geo. S. Green, their attorney, and
upon the proof of the execution of the paper propounded as
the last will and testament of John T. Hart, late of Logan
county, territory of Oklahoma, deceased, bearing date the
29th day of November, A. D. 1899; and it appearing from the
evidence of the subscribing witnesses and other witnesses,
who were produced and sworn and examined in open court,
that at the time of the execution of the same the testator
was of full age, of sound mind and memory, and was not
acting under duress, menace, fraud, or undue influence, and
that said will was executed in all particulars as required
by law, to all of which findings of the court the heirs of
the said John T. Hart then and there excepted and objected,
it was thereupon ordered, adjudged, and decreed that said
instrument so propounded, to wit:
"Seward,
Oklahoma Ty., Nov. 29, 1899.
I. John
T. Hart, being of sound mind, make this may last will and
testament. After all my legal debts have been paid, I will
and bequeath all of my estate, both real and personal, to the
county commissioners of Logan county, Okla. Ty.; said estate
to be used for the benefit of the dependent orphans of Logan
county, Okla. Ty. I further intrust to Albert Ploeger the
care of said estate until the aforesaid Co. commissioners can
take charge. [Signed] John T. Hart.
"'This
will was drawn by Dr. A. L. Houseworth in the presence of the
following witnesses: [Signed] Albert Ploeger. [Signed] James
W. Jeffries.'
"Indorsed
on the back: 'Last will of John T. Hart, deceased. Filed
Dec. 2, 1899. J. C. Foster, Probate Judge.'
-Be
allowed, and probate thereof be granted as and for the last
will and testament of John T. Hart, deceased, and that the
same, together with the proofs thereof, be recorded, and that
the same be, and hereby is, established as a valid will,
passing both real and personal estate, and that letters
testamentary issue to Albert Ploeger, the person named
therein as executor, on his filing the oath of office as
required by law, and executing a bond to the territory of
Oklahoma in the penal sum of one thousand dollars ($1,000),
with two or more as sureties, to be approved by the judge of
the court. To all of which the said heirs of the said John T.
Hart excepted at the time, and thereupon on the same day
filed a motion for a new trial and rehearing upon the
probating of said paper purporting to be the last will and
testament of the said John T. Hart, which said motion was by
the court overruled, and to which the said heirs excepted at
the time. For good cause shown, thirty (30) days was given to
the heirs of the said John T. Hart to make and serve a
case-made for the supreme court; five (5) days given to the
executor, Albert Ploeger, and the board of county
commissioners, to suggest amendments thereto; and said
case-made to be settled and signed by the judge of this court
upon five days' notice in writing by either party. Done
in open court this 6th day of February, A. D. 1900. J. C.
Foster, Probate Judge, Logan County."
Thereafter
an appeal was taken by the heirs of said John T. Hart from
said order to this court, which appeal was afterward
dismissed, for what cause is not shown. Thereafter the heirs
of said John T. Hart filed their petition in ejectment
against the board of county commissioners, Albert Ploeger
and the tenant of the board of county commissioners on the
land in question, devised by said will. The board of county
commissioners filed their answer to said petition, and, as a
second defense, pleaded as follows: "For a second
defense: First. That the defendants, the board of county
commissioners of Logan county are the owners of said land,
and claim title thereto, under and by virtue of the last will
and testament of John T. Hart, decreased, a copy of which
will is hereto attached, and made a part hereof. Second. That
the defendant Albert Ploeger is the executor named in said
will, and has no interest in said action except as such
executor. Third. That the defendant William L. Clark has no
claim to said land, except that he is in the possession of
said land as tenant of the said board of county commissioners
of Logan county. Fourth. That the plaintiffs have no claim to
said land except as heirs at law of John T. Hart. Fifth. That
heretofore, to wit, on the ___ day of...
