Williams v. Mulvihill

• Decision Date: 26 January 1993
• Docket Number: No. 79453,79453
• Parties: Barbara A. WILLIAMS, Appellant, v. Melinda McCaul MULVIHILL, Personal Representative of the Estate of Dwight J. Wilson, Deceased, Appellee.
• Court: Oklahoma Supreme Court

Page 1097

846 P.2d 1097

1993 OK 5

Barbara A. WILLIAMS, Appellant, v. Melinda McCaul MULVIHILL, Personal Representative of the Estate of Dwight J. Wilson, Deceased, Appellee.

No. 79453.

Supreme Court of Oklahoma.

Jan. 26, 1993.

On Certiorari to review a certified interlocutory order of the district court, Kingfisher County; Robert C. Lovell, Judge.

In this proceeding for certiorari review of a certified interlocutory order, appellant sought to recast the case into an appeal from final mid-probate order and to suspend--without posting a bond required by the trial court--the effectiveness of the nisi prius declaration that appellant's purchase of an oil and gas lease from decedent's estate is a nullity.

PROCEEDING ORDERED RECAST INTO AN APPEAL FROM MID-PROBATE JUDGMENT; ORDER REQUIRING WILLIAMS TO POST A $100,000.00 BOND IS VACATED WITH DIRECTIONS TO RECONSIDER THE STAY MOTION IN A MANNER NOT INCONSISTENT WITH THIS PRONOUNCEMENT'S DIRECTIONS.

Robert G. Shoemaker, Kerr, Irvine, Rhodes & Ables, Oklahoma City, for appellant.

Henry A. Meyer, III, Hieronymus, Hodgden & Meyer, Harold G. Lowrey, Woodward, for appellee.

OPALA, Justice.

Two questions are dispositive of appellant's [Williams'] quest for predecisional procedural relief: (1) Shall this proceeding for certiorari to review a certified interlocutory order in probate be recast into an appeal from mid-probate judgment? ¹ and (2) Shall this court vacate or modify the trial court's requirement for a $100,000.00 bond to suspend the clerk's disbursement of the oil and gas proceeds now on deposit in his office? ²

We answer both questions in the affirmative. The decision before us is a true "judgment" within the meaning of § 721(10) ³--i.e., an end-of-the-line disposition of all issues litigated and litigable in probate between Williams qua purchaser from the estate and its executrix. ⁴ It is hence at once reviewable as final. ⁵ Since it does not appear likely that the estate's loss from delayed disbursement of the proceeds in custodia legis ⁶ would aggregate

$100,000.00, the penal sum set by the trial court appears excessive. The order requiring an undertaking in that amount must be vacated; if Williams still desires to postpone the funds' disbursement pending appeal, she must post a bond conditioned on payment of damages for delay ⁷ in some reasonable penal sum to be determined by the trial judge.

I

A. CRITICAL FACTS

Williams' husband [husband] and Melinda McCaul Mulvihill [Mulvihill] were co-executors of decedent's will. For $6,600.00 the husband assigned to Williams on March 25, 1986 an estate asset--an oil and gas lease in Woodward County. Although a facsimile of Mulvihill's signature appears on the recorded assignment, the parties stipulated that she never signed the document. Neither a return nor a confirmation of the sale in question had ever been filed in the probate case.

Mulvihill first brought suit to quiet the estate's title in the Woodward County lease. That action was still pending when the husband resigned as co-executor, leaving Mulvihill as the estate's only fiduciary. She then sought in probate an order declaring the undocumented and unconfirmed sale to Williams a nullity; later she dismissed her quiet title action.

B. THE PROCEEDINGS IN PROBATE

Mulvihill urged below that as co-executor she did not authorize the husband's sale of the oil and gas lease to Williams. She contended the transfer was prohibited by the terms of 58 O.S.1981 § 496, ⁸ which bar an executor's wife from purchasing the estate's assets. ⁹ Williams, a stranger to the estate, urged that Mulvihill had known about the sale for a long time and her attempt to set it aside was time-barred. ¹⁰

The trial judge settled the statute of limitations question in the estate's favor and declared the assignment's transfer to Williams a nullity. ¹¹ He then (1) ordered Williams to give an accounting of the collected oil and gas proceeds, (2) found that Natural Gas Pipeline Company of America was holding some proceeds from the purchased assignment, (3) ordered an accounting and payment into court of funds held by the pipeline company and (4) required Williams to give a $100,000.00 bond to stay his decision declaring the sale to her a nullity.

Williams brought an appeal by filing a timely petition in error. ¹² She later changed her quest for relief to one for certiorari review of a certified interlocutory

                order. 13  She now seeks leave to recast the proceeding into an appeal from final mid-probate judgment--the corrective process she had commenced originally.  She also requests relief from the nisi prius requirement that she give an undertaking.  Mulvihill admits the order before us is reviewable as final, but objects vigorously to any stay sans the $100,000.00 bond
                

II

A.

BECAUSE WILLIAMS IS A STRANGER TO THE ESTATE, THE ONLY

IN-PROBATE ISSUE LITIGATED OR LITIGABLE BETWEEN HER AND THE

ESTATE IS THE ESTATE'S RIGHT TO THE OIL AND GAS LEASE AND

HER INTEREST, IF ANY, IN THE LEASE ASSIGNMENT

Probate is a statutory proceeding. ¹⁴ Before the Judicial Article of the Oklahoma Constitution ¹⁵ and the present § 91.1 ¹⁶ became effective on January 13, 1969, the remedial track for probate had its point of inception in the since-defunct county court. ¹⁷ Although probate now begins in district court, interdocket remedial boundaries survive. The mainstream probate issues and procedural stages remain the same. These are confined to: (1) ascertaining whether decedent died testate or intestate, (2) if testate, what testamentary disposition, if any, may be admitted to probate, (3) the administration of the estate's assets and (4) the final account and distribution. ¹⁸

Probate judicature is limited in scope. Its remedial range extends to accommodate only some disputes that may arise in the course of an administration between a total stranger to the estate and its executor. A purchaser's clouded title in an asset secured from the estate without return or confirmation of sale lies within the permissible scope of probate inquiry. William's claim to the estate's lease asset derived from a judicial act in probate which remained unconsummated when challenged by the executrix' quest for the transfer's vacation. In pre-confirmation stages the cloud over ownership of the lease was hence litigable in probate. ¹⁹

The trial judge decided that (a) Mulvihill's quest for vacation of the purchased assignment was not time-barred and (b) the estate's sale to Williams was a nullity. ²⁰ He also ordered Williams to render an in-probate accounting to be conducted under the provisions of 58 O.S.1991 § 295. ²¹ Section 295's remedial range reaches no farther than to facilitate discovery of estate assets. Although the accounting phase ²² may still remain inconclusive, its pendency does not adversely affect the finality status of the order tendered here for our review. The cited section is no authority for an in-probate judgment against a stranger like Williams for the recovery of unaccounted-for money or for the return of property acquired at an infirm or questionable sale. ²³ Rather, the estate's recapture of income--generated by the now-vacated assignment and collected by Williams before the assignment's purchase came to be contested--presents an extra-probate controversy. ²⁴ When the trial judge upheld the estate's claim to the clouded, yet-unconfirmed assignment and declared the purchaser's acquired interest a nullity, the only contest between Williams and Mulvihill that could be litigated and was litigable in probate stood completely terminated.

B.

THE NISI PRIUS DECLARATION THAT THE SALE TO WILLIAMS IS A

NULLITY IS A TRUE "JUDGMENT" IN PROBATE WHICH RESOLVES

ISSUES SEPARATE FROM THE PROBATE'S MAINSTREAM; IT IS ON A

FINALITY FOOTING EQUAL TO THAT OF A DECREE OF DISTRIBUTION

Only parties interested in the estate may seek corrective relief from the final decree of distribution. ²⁵ Williams is neither a fiduciary, an heir, nor a beneficiary under the will. Her only interest in this probate consists of a claim to the The trial judge's refusal to validate Williams' purchase and his vacation of the "returnless" and unconfirmed transfer by assignment from the estate did indeed give birth to a true adverse judgment within the meaning of § 721(10). ²⁹ In Bowdry v. Stitzel-Weller Distillery ³⁰ the highest bidder on some personal property at an estate sale sought appellate review of the trial court's confirmation of the sale made to a lower bidder. We there recognized the order confirming the sale to the lower bidder as a "judgment" governed by § 721(10). ³¹ The same recognition must be accorded today to the judgment here for review; it is clearly a classic § 721(10) judgment.

                purchased assignment.  The probate order she tenders for corrective relief (a) declares that the sale made to her is a nullity, (b) extinguishes William's inchoate title and (c) severs her only legal nexus with the estate and its assets.   If we were to conclude that the sale's vacation constitutes an interlocutory order appealable by right, governed by 58 O.S.1991 § 721(5), 26 Williams would have to be afforded another appeal from a later end-of-the-line (terminal) disposition in probate. 27  This would lead to an absurdity.  Williams has no interest in the estate that would allow her to challenge the final accounting or provide her another chance for review.  Her appeal, if at all, must lie from this mid-probate order which has all the attributes of a true "judgment." 28  It resolves a controversy that is separate and apart from the probate's mainstream
                

The intimation to be gleaned from some extant case law to the effect that the only final order in probate is the decree of distribution cannot pass muster under a careful re-examination of § 721(10). To the extent that Rule 1.10, Rules of Appellate Procedure in Civil Cases, ³² and extant jurisprudence--such as Estate of Griffin ³³--may suggest that a decree of distribution constitutes the only...