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1926 OK 186
253 P. 990
124 Okla. 46
Case Number: 15529
Decided: 03/02/1926
Supreme Court of Oklahoma

DANIEL et al.


¶0 2. Judgment -- Jurisdiction to Vacate -- Fraud. The district court has power to vacate and annul orders and judgments of other courts in a proceeding brought for that purpose for fraud of the parties, inducing and entering into such order, where fraud is extraneous to the issues involved in the proceeding attacked. One species of such extraneous fraud is that which prevents the other party from having a fair opportunity to present his case, and it is immaterial, when a judgment is attacked on this ground, whether the attack is denominated a direct or collateral attack.
3. Wills--District Court May Construe. In an action in the district court in partition and within the rule last above, attacking an order of the county court purporting to construe a will which is admitted to probate, the district court has the incidental jurisdiction to construe the will and determine the rights of pretermitted children.
4. Executors and Administrators--Bond for Legacy Jurisdictional. Under section 1354, et seq. C. O. S. 1921, providing that an heir, devisee or legatee may obtain a legacy or share in an estate to which he is entitled, on giving bond with security for payment of his share of the debts, the giving of such bond is jurisdictional, since there is no statute in this state authorizing the court to dispense with such bond. An order made accordingly, without the giving of such bond, is void.
5. Courts--Co-ordinate Jurisdiction -- First Acquired--Exclusive. Where the district court under the foregoing rules, acquires jurisdiction of the parties and subject-matter pending in such county court, its jurisdiction is exclusive of the jurisdiction of the county court to render any subsequent orders involving the same subject-matter and issues, since the court which first acquires jurisdiction retains the same, and may not be interfered with by such other court of co-ordinate jurisdiction.
6. Wills--Pretermitted Children--Intention to Omit, How Determined. Formal wills being required to be in writing, the intention of the testator to omit his children who are not mentioned in the will, must be determined from the language of the will itself, aided by attendant circumstances excluding evidence of oral declarations by the testator at variance with or in amplification of the language of his written testament.
7. Same--Declarations of Testator--Inadmissible. Under the last paragraph, if the declarations of the testator are in corroboration or amplification of the will, they are immaterial; if in derogation thereof, they are incompetent.
8. Same--Declarations of Third Person as to Advancements Inadmissible. Under section 11313, C. O. S. 1921, providing that all gifts are advancements, if so expressed in the gift or grant, or charged as such by the decedent, the testimony of a third person that certain gifts by decedent were advancements is incompetent.
9. Deeds--Acknowledgment -- Impeachment--Proof. The evidence to impeach the certificate of acknowledgment of the deed in this case is clear, cogent, and convincing, and such as produces a conviction amounting to a moral certainty that the certificate is false.
10. Judgment Sustained. The judgment is not against the clear weight of the evidence, and is affirmed.

J. B. Dudley, Reuben M. Roddie, O. F. Mason, Q. P. McGhee, and N. C. Barry, for plaintiffs in error.
Shannon & Shannon and Burford, Miley, Hoffman & Burford, for defendants in error.


¶1 In 1919, John L. Courtney executed his will in favor of his wife, in which he made no mention of any of his children or grandchildren. He died April 12, 1920. After providing for the payment of his debts, the will provides:

"All the rest and residue of my property, real and personal, of every kind and wherever situated, whether vested or contingent at the time of my death, I devise and bequeath to my beloved wife, Ann E. Courtney, absolutely, free and clear of any condition or restriction whatever."

¶2 Ann E. Courtney, his wife, sole beneficiary, was nominated as executrix. On April 12, 1922, four of his children, as plaintiffs, instituted this action in the district court of Ottawa county against the other child and four grandchildren, taking by right of representation, and the widow mother, plaintiff in error, Ann E. Courtney, and Q. P. McGhee and Frank R. Burns, attorneys, and certain other defendants, raising the issue of their omission from said will, and praying partition in the aliquot parts set out, etc. On September 5, 1923, they filed their amended petition. In their first cause of action, they alleged that said will had been admitted to probate on May 14, 1920; that the omission of plaintiffs and defendants, children and grandchildren, from said will, was not intentional, and that therefore the will was void as to them; that the other defendants claimed some interest in the property by reason of certain transactions had with the deceased, said attorneys having acquired title to certain real estate from the widow, since his death. In the second cause, they charged that the defendant Q. P. McGhee held the legal title to certain real estate, under oral agreement with Mr. Courtney in his lifetime, by which his heirs owned an undivided one-half interest therein. The third cause had to do with the personal property of the estate and sought, on the ground of fraud, cancellation of an order of the county court of June 3, 1921, setting aside all of the same to the widow. A demurrer was sustained to this cause, but the issue therein was raised by answer of defendants, setting up said order of June 3rd, and claiming thereunder, to which plaintiffs replied, setting up the same grounds for cancellation, as in this cause three. The fourth cause attacked, as fraudulent and void, an order of the county court of December 5, 1922, approving the final report of Ann E. Courtney and purporting to assign the entire estate to her. The fifth cause alleged said widow and McGhee had dissipated a large part of the personal property, praying for receiver. The sixth cause charged that a recorded purported warranty deed from John L. Courtney and Ann E. Courtney to the latter, conveying the greater portion of the real estate to her, was forged, praying its cancellation. They sought cancellation of said orders distributing and assigning the estate to the widow, and asked that her distributive share be charged with the amounts unlawfully disposed of. In addition to general denial, the matters and things alleged by defendants will appear otherwise in this opinion. Judgment was for plaintiffs substantially according to their prayer -- finding that the omission to mention the children and grandchildren in said will was not intentional; that they and said widow were the only heirs, decreeing partition accordingly; ordering accounting by said widow, and charging her interest with the property disposed of by her; canceling said order of June 3, 1921, as false, fraudulent, and void, and also said decree of December 5, 1922, and said deed. Ann E. Courtney and Q. P. McGhee appeal. They argue first that the district court was without jurisdiction, and that this action is a collateral attack upon the judgment of the county court. The said contention is that the judgment is not supported by the evidence and is against the weight thereof. Our duty is to consider and weigh the evidence and apply the equitable rule as to the quantum thereof.

1. It is well settled that in a proceeding to probate a will, the only issue triable is the factum of the will, or devisavit vel non. In re Allen's Will,

2, 3. From Elrod et al. v. Adair,

4. As shown by the inventory filed by the widow, deceased owned 1,075 acres of land in Oklahoma, estimated value, $ 70,000, subject to about $ 26,000 mortgage indebtedness, and town property, estimated value. $ 15,000. As shown by the order of June 3, 1921, purporting to assign same to the widow, the personal property consisted of notes due the estate, aggregating $ 3,929.93; Liberty Bonds, $ 20,050, appraised at $ 17,042.50; cash on hand at death of Mr. Courtney, $ 7,000: Baby Bonds, about $ 3,000, and balance due on a certain contract, $ 4,500. The personal property assigned and turned over to the widow aggregated $ 34,972.43.

¶3 Section 1354, C. O. S. 1921, et seq., provides that after four months from the issuing of letters testamentary, any heir, devisee, or legatee may obtain a legacy or share in the estate to which he is entitled, on giving bond with security for the payment of his share of the debts of the estate; that the same notice must be given as for the settlement cf an account of an executor; that any person interested in the estate may resist the application. In an administration proceeding, an order confirming sale of real estate that has not been appraised within a year, or that has been sold for less than 90 per cent. of its appraised value, is void for want of jurisdiction. Section 1280, C. O. S. 1921; Glory v. Bagby et al.,

5. Notwithstanding the issues had been joined in the instant case in the district court prior to November 10, 1922, by original petition of plaintiffs and answers of defendants involving the construction of said will, on which depended the rights of said pretermitted children and grandchildren, and attacking said order of June 3, 1921, said widow, through her attorney, Mr. McGhee, on November 10, 1922, filed her final account and petition for assignment of all of said estate to her under said will. Proceedings were had for procuring, and they did procure, from Mr. Burns as such special county judge, a purported final decree dated December 5, 1922, approving and settling the final account of the administratrix, and assigning the entire estate to her. Messrs. McGhee and Burns were then defendants in the instant action in the district court, and had filed their answers to the original petition. They held property of the estate acquired from the widow since the death of Courtney. They knew the disposition of the estate was involved and had joined in that issue. Nevertheless, McGhee, as attorney for the widow, and Burns, as special judge, thereafter conducted the proceedings for decree so distributing the estate to the widow. The amended petition of plaintiffs attacking also this decree was not filed until September, 1923. The final report of the widow was largely in blank--its substance being that all debts had been paid and the widow was entitled to all the estate under the will.

¶4 Much evidence was adduced pro and con as to the fraud in procuring said decree of December 5th. We do not deem it necessary to review or weigh the evidence on this branch of the case. Since the district court acquired jurisdiction in this case filed in April, 1922, prior to the said proceedings in November and December of that year, we hold also that the final decree distributing the entire estate to the widow, dated December 5, 1922, and approving her accounts, was void. Irrespective of fraud in connection therewith, acquisition first by the district court, of jurisdiction of the very matters attempted to be adjudicated, was exclusive of such action by the county court.

"Where two actions between the same parties, on the same subject, and to test the same rights, are brought in different courts having concurrent jurisdiction, the court which first acquires jurisdiction, its power being adequate to the administration of complete justice, retains its jurisdiction and may dispose of the whole controversy, and no court of co-ordinate power is at liberty to interfere with its action. This rule rests upon comity and the necessity of avoiding conflict in the execution of judgments by independent courts, and is a necessary one because any other rule would unavoidably lead to perpetual collision and be productive of most calamitous results." 15 C. J. 1134.

¶5 The rule prevails in this jurisdiction. Cromwell v. Hamilton,

6, 7. Section 11255, C. O. S. 1921, is:

"When any testator omits to provide in his will for any of his children, or for the issue of any deceased child, unless it appears that such omission was intentional, such child, or the issue of such child, must have the same share in the estate of the testator, as if he had died intestate, and succeeds thereto as provided in the preceding section."

¶6 The latest announcement of this court, construing said statute, is Riley et al. v. Collier et al.,

"Formal wills being required to be in writing, the intention of the testator to omit certain children of a deceased son, who are not mentioned in the will, must be determined from the language of the will itself, aided by attendant circumstances, excluding evidence of oral declarations by the testator at variance with or in amplification of the language of his written testament."

¶7 It is contended that the judgment holding the will to be void as to the children and grandchildren is contrary to the evidence. Within its four corners, or by its language, the will does not show any intention so to pretermit. The court heard the attendant circumstances, and also admitted certain evidence of declarations of deceased concerning the issue of his intention. If such declarations were in corroboration or amplification of the will, they were immaterial; if in derogation thereof, they were incompetent under the rule herein.

8. The first circumstance relied upon by defendants is the fact that on the same day on which said will was executed, Mr. Courtney, joined by his wife, executed a deed to her, conveying practically all of his real estate. If this deed were genuine it had been of probative value on this issue. The court found the same to have been forged, and, since such finding is not clearly against the weight of the evidence, as hereinafter discussed, same cannot be considered in this behalf. The next circumstance is the admitted fact that, prior to the date of his will, Mr. Courtney gave each of his five children $ 1,500, and also to some of them he gave certain parcels of real estate. He gave nothing to his grandchildren, the children of his deceased daughter. These gifts, it seems from the record, were not nearly equal in value to the shares the children would take under the law. The force of these facts, as attending circumstances to show that Mr, Courtney intended pretermission, is destroyed by section 11313 of the Statutes, C. O. S. 1921, providing that:

"All gifts and grants are made as advancements, if expressed in the gift or grant to be so made, or if charged in writing by the decedent as an advancement, or acknowledged in writing as such by the child, or other successor or heir."

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