Wilkerson v. Wilkerson

• Decision Date: 16 October 1934
• Docket Number: Case Number: 23395
• Citation: 169 Okla. 232,36 P.2d 935,1934 OK 566
• Parties: WILKERSON v. WILKERSON et al.
• Court: Oklahoma Supreme Court

1934 OK 566

36 P.2d 935

169 Okla. 232

WILKERSON v. WILKERSON et al.

Case Number: 23395

Supreme Court of Oklahoma

Decided: October 16, 1934

Syllabus

¶0 1. Partition--Action of Commissioners in Partition not Set Aside on Ground of Unequal Allotment Except in Extreme Cases.

The well-settled rule is that the action of commissioners in partition will not be set aside on the ground of unequal allotments except in extreme cases, as where the partition appears to have been made upon wrong principles, or where it is shown by very clear and decided preponderance of evidence that the partition is grossly unequal.

2. Same--Statutory Authority for Court to Direct Particular Allotment.

For good and sufficient reasons appearing to the court, the commissioners may be directed to allot particular portions to any one of the parties.

3. Appeal and Error--Failure to Cite Authorities in Brief--Presumption in Favor of Judgment.

A plausible but not convincing argument in a brief, unsupported by citation of authorities, is not sufficient to overcome the presumption indulged by the Supreme Court in favor of the correctness of the judgment of the trial court.

4. Appeal and Error--Review of Equity Case--Sufficiency of Evidence to Support Findings.

In an equity case this court will not disturb the findings of the trial court on the evidence unless same are clearly against the weight of the evidence.

Appeal from District Court, Jackson County; Frank Mathews, Judge.

Action by Will R. Wilkerson and others against Fletcher T. Wilkerson. Judgment for plaintiffs, and defendant appeals. Affirmed.

P. K. Morrill, for plaintiff in error.

Stansell Whiteside, for defendants in error.

PER CURIAM.

¶1 This action was brought by Will R. Wilkerson et al., who hereinafter will be referred to as plaintiffs, against Fletcher T. Wilkerson, who hereinafter will be referred to as the defendant, and against Mrs. Alice Enos and Carl Wilkerson, who filed their disclaimers in said action.

¶2 The plaintiffs filed their petition alleging that they and the defendants were the children and the sole heirs and legatees of R. J. Wilkerson, deceased, who at the time of his death was the owner in fee simple of 240 acres, describing the same, in Jackson county, Okla. R. J. Wilkerson upon his death left a will wherein he decreed to said plaintiffs and the defendant, Fletcher T. Wilkerson, said real estate, subject to a life estate of the widow of the deceased, Mrs. Elizabeth A. Wilkerson, who departed this life on April 2. 1930; that upon the death of said widow, the said land vested in said plaintiffs and the defendant, as follows:

Will R. Wilkerson, an undivided one-eighth (1/8)

Fletcher T. Wilkerson, an undivided one-eighth (1/8)

Mrs. Edna Howard, an undivided one-sixteenth (1/16)

Mrs. Olive (Ollie) Hunt, an undivided one-sixteenth (1/16)

Mrs. Eva Regian, an undivided one- sixteenth (1/16)

Earl Wilkerson, an undivided one-sixteenth (1/16)

Price Wilkerson, an undivided one-fourth (1/4)

Vance Wilkerson, an undivided one-fourth (1/4)

--and that Carl Wilkerson anti Mrs. Alice Enos had no right, title, or interest in and to said real estate, they having conveyed their interests given them under their father's will to other heirs. The prayer was that said property be partitioned, decreeing that the interest of each be as above set forth, that commissioners be appointed to make partition, and that in the event said property could not be fairly and impartially divided, the property be sold, that the proceeds be partitioned, and that the costs and attorney fees be apportioned among the parties according to their respective interests. A copy of the final decree in the estate of R. J. Wilkerson, deceased, was attached to said petition.

¶3 The defendant, Fletcher Wilkerson, filed his answer admitting the relationship of plaintiffs and defendant in so far as the ownership of said real estate was concerned. He further alleged.

"That said plaintiffs are not entitled to have said land partitioned at this time for the reason that said lands are incapable of being equitably partitioned among said plaintiffs and this defendant, and that no equitable division could be made. that in order to divide said land among plaintiffs and this defendant according to their respective interests, it would be necessary to sell said land and divide the proceeds; that on account of the depressed business conditions now existing, it would be impossible to sell said lands and obtain a fair and equitable price for the same and that a sale of said lands at this time would result in the practical confiscation of plaintiffs' and defendant's interest in the same, and that the court should find that said land is incapable of partition and in equity should not be sold at this time."

¶4 A hearing was had upon the issues joined, all parties being present in person and by their attorneys. Evidence was introduced (but the same is not preserved in the record, and is therefore not before this court), and after argument of counsel, the court found that commissioners should be appointed to make partition. No exception was taken to this order by either side. The order of partition, after confirming the interests of each party, recited:

"That partition of said land be made accordingly, and that if said commissioners find that it is impossible to partition said land equitably between all the heirs, then it is ordered that said commissioners proceed to partition one-eighth (1/8) of said land to Fletcher T. Wilkerson, as the remainder of the heirs can or are willing to own said land in common or that they can agreeably dispose of their interest to one of the above heirs.

"It is further ordered that should said commissioners find that it is impossible to partition one-eighth (1/8) of said land, then they will proceed to appraise and value total of said land, and upon taking the oath prescribed by law, said commissioners shall proceed to make said partition and report the same to this court."

¶5 Thereupon the commissioners made their report, which in part reads as follows:

"We found that partition of said property as to plaintiffs and defendant in their respective portions is impossible without great depreciation to each respective share, but we found that partition could be made as between the plaintiffs and defendant, Fletcher T. Wilkerson, without manifest injury to any of said parties and their respective shares, by giving to the defendant, Fletcher T. Wilkerson, the following described property, to wit:

"Twenty-four and five-thirteenths (24 5/13th) acres, to be taken out of the northwest corner of the northwest quarter (N. W. 1/4) of section 34, township one (1) north, range twenty-one (21) west of Indian Meridian, as his one-eighth interest of said land and that the remaining portion of said property be left in undivided shares to the plaintiffs.

"We also found that in the event the above partition should not be approved by the court, we have valued and appraised said land as follows, to wit:

"Twenty acres (20) of farming land in cultivation on the north side of the west one-half of the southeast quarter of section twenty-one, township one north, range twenty-one W. I. M. $ 800.00

"Sixty acres (60) out of the said eighty above described being in grass land or pasture land, $ 480.00

"One-hundred sixty acres at $ 65 per acre, being the N. W. 1/4 of 34, 1 N. 21, W. I. M.

$ 10,400.00

"Improvements upon the northwest quarter of section thirty-four (34) township one (1) north, range twenty-one (21) west, we appraise at $ 1,000.00

"In making the partition of twenty-four and five-thirteenths acres to be given to the said Fletcher T. Wilkerson, we have taken into consideration the value of the improvements amounting to $ 1,000 and the value of the land as shown above as our appraisement of the entire premises."

¶6 Thereafter the defendant filed the following exceptions to report of commissioners'

"Said defendant would show to the court that the amount of land apportioned him by said commissioners is grossly inadequate to the interest of the defendant and that the setting aside of 24 5/13 acres of land amounts to the practical confiscation of the defendant's interest to the real property Involved herein for the reason that the body of land consisting of only 24 5/13 acres is practically of no value.

"Defendant would further show to the court that a sale ought to be had of the entire tract of land described in said petition, for only in that way can the undivided interest of the plaintiffs and defendant be handled in order to protect the value of all the said interests."

¶7 Then follows the prayer that that part of the commissioners' report setting aside 24 5/13 acres be denied and the entire land be sold upon the appraisement of the commissioners.

¶8 The plaintiffs filed their motion to confirm report of the commissioners, and upon these issues testimony was...