Washington and Lee University v. District Court of Oklahoma County, Probate Div.

• Decision Date: 02 November 1971
• Docket Number: No. 45027,45027
• Citation: 492 P.2d 320,1971 OK 137
• Parties: WASHINGTON AND LEE UNIVERSITY and The Oklahoma Children's Memorial Hospital, Petitioners, v. The DISTRICT COURT OF OKLAHOMA COUNTY, PROBATE DIVISION, and Honorable Carl Traub, Associate District Judge, Probate Division, Respondents.
• Court: Oklahoma Supreme Court

Page 320

492 P.2d 320

WASHINGTON AND LEE UNIVERSITY and The Oklahoma Children's Memorial Hospital, Petitioners, v. The DISTRICT COURT OF OKLAHOMA COUNTY, PROBATE DIVISION, and Honorable Carl Traub, Associate District Judge Probate Division, Respondents.

No. 45027.

Supreme Court of Oklahoma.

Nov. 2, 1971.

Rehearing Denied Jan. 11, 1972.

Syllabus by the Court

1. 58 O.S.1961, § 29, provides that any person interested may appear and contest the will. The term 'any person interested' as used therein, means any person having such a direct pecuniary interest in the devolution of the testator's estate that his interest would be impaired or defeated if the will were admitted to probate, or his interest would be benefitted if the will were denied admission to probate.

2. A surviving spouse of a testator is not a 'person interested' as those words are used in 58 O.S.1961, § 29, if her interest in her husband's estate would not be impaired or defeated if the will were admitted to probate, or her interest would not be benefitted if the will were denied admission to probate.

Original proceeding for this Court to assume original jurisdiction and issue writ of prohibition directing the respondent from further proceeding in a will contest filed by the surviving spouse of the testator. Original jurisdiction assumed; and writ of prohibition granted.

John H. Cantrell, Lee B. Thompson, Ralph G. Thompson, Cantrell, Douglass, Thompson & Wilson, Oklahoma City, David Swank, The University of Oklahoma, Norman, for petitioners.

O. R. Cargill, Jr., Oklahoma City, Conner, Little & Conner, Leslie L. Conner, James M. Little, Leslie L. Conner, Jr., Oklahoma City, for respondents.

IRWIN, Justice:

The Last Will and Testament of James Enoch Piersol, Jr., deceased, was offered for probate and Rachel Virginia Piersol, his surviving widow, filed her petition contesting its admission. Washington and Lee University and the Oklahoma Children's Memorial Hospital, residual beneficiaries under the will, filed pleadings which placed in issue the right of the surviving widow to contest its admission. The specific issue presented was whether or not the surviving widow was a 'person interested' as those words are used in 58 O.S.1961, § 29, which provides that 'any person interested' may appear and contest a will.

The trial court (respondent), in effect, determined that the surviving widow was a 'person interested' and had the right to contest the admission of the will to probate and set the contest for hearing. In this original proceeding, Petitioners seek a writ prohibiting the respondent (the trial court) from further proceeding in the will contest.

There is pending in the district court a separate action commenced by the surviving widow wherein she seeks to set aside an alleged antenuptial agreement entered into by her and the testator. The final adjudication of that case will be material in the distribution of testator's estate in the probate proceedings for the following reasons:

(1) If the surviving widow is successful in setting aside the alleged antenuptial agreement, she will have the right by virtue of 84 O.S.1961, § 44, (forced heir statute) to elect to take under the laws of succession or under the will. In re Rettenmeyer's Estate, Okl., 345 P.2d 872 (1959).

(2) If the surviving widow is not successful in setting aside the alleged antenuptial agreement, the antenuptial agreement will be enforceable because § 44, supra, expressly authorizes antenuptial agreements between persons contemplating marriage which determine the prospective rights of each in the property of both parties during and after marriage. In re Cobb's Estate, Okl., 305 P.2d 1028 (1956). Since it would be enforceable, the surviving widow would have no right of election to take under the will or under the laws of succession. In re Blaydes' Estate, 202 Okl. 558, 216 P.2d 277 (1950); and Rettenmeyer's Estate, supra.

Although the final adjudication of the surviving widow's action to set aside the antenuptial agreement will be material in the distribution of testator's estate, this does not necessarily mean that such pending action or its final adjudication is material or pertinent in determining whether or not the surviving widow is entitled to contest her husband's will.

The surviving widow, in her petition contesting the will, alleged that the testator was incompetent to make a will and was under undue influence and duress at the time of making the will. In an amended petition she alleged that the testator did not intend to dispose of her rightful inheritance of an undivided one-third interest in his estate. In her brief the surviving widow states that her husband's will leaves her nothing and that under the terms of the alleged antenuptial agreement she shall not have any interest in any of the separate property of her husband 'wherever the same may be located or situated, and waives all right to participate in his estate, including what he now owns and what he may hereafter acquire by gift, inheritance, purchase or otherwise.'

If the surviving widow is successful in setting aside the antenuptial agreement, she would have the right of election as a 'forced heir' but the record does not indicate that she would receive a greater interest in her husband's estate if the will were denied admission to probate, or receive a lesser interest if the will were admitted to probate. This analysis is grounded on the proposition that if the will is denied admission to probate, the surviving widow's distributive interest in her husband's estate would be determined by the laws of succession; and if the will is admitted to probate, she could exercise her right of election and her distributive interest would also be determined by the laws of succession.

If the surviving wife is not successful in setting aside the antenuptial agreement, she would not receive a greater interest in her husband's estate if the will were denied admission to probate, or receive a lesser interest if the will were admitted to probate. This analysis is grounded on the proposition that she would have no right of election because the antenuptial agreement would be enforceable whether her husband's will were admitted to probate or denied admission to probate.

Stated in another way, whether the surviving widow is or is not successful in setting aside the antenuptial agreement, the record does not indicate that she would receive a lesser interest in her husband's estate if the will were admitted to probate, or be benefitted if the will were denied admission to probate. Therefore, the fundamental issue presented is: Is a surviving widow entitled to contest the will of her deceased husband if her interest in her deceased husband's estate would not be impaired or defeated if the will were admitted to probate, or her interest would not be benefitted if the will were denied admission to probate?

In Mantz v. Gill, 147 Okl. 199, 296 P. 441 (1931), we held that a surviving husband of a common-law marriage has the right to appear and contest the will of his deceased wife. An examination of that decision and the record discloses that the primary issue presented was whether or not the relationship of the contestant and the decedent had ripened into a common-law marriage. Whether the contestant (the husband) constituted a 'person interested' in his deceased wife's estate within the meaning of § 29, supra, was never placed in issue.

In McCoy v. Lewis, 166 Okl. 245, 27 P.2d 350 (1933), we affirmed the judgment of the trial court which denied the right of a surviving sister, nephews and nieces of a decedent to contest decedent's will on the grounds that under § 29, supra, the only person who may contest the admission of a will to probate is one having an interest in the estate of the decedent. In McCoy, the contestants would not have been entitled to an...