Culbertson v. McCann

Annotate this Case

Culbertson v. McCann
1983 OK 57
664 P.2d 388
Case Number: 58770
Decided: 05/17/1983
Modified: 05/19/1983
Supreme Court of Oklahoma

MARTHA JO McDONALD CULBERTSON, MARY LAUNDBLADE, WILLIAM McDONALD, ROBERT McDONALD, BAYLASS MORRIS McDONALD, JR., JAMES McDONALD, GEORGE McDONALD, MICHAEL McDONALD, MARY SUE JEFFRIES, COLLEEN McDONALD AND BRIAN McDONALD, PLAINTIFFS,
v.
GEORGE H. McCANN AND M. KATHRYN WOOD, DEFENDANTS.

Certified Questions From a Federal Court.

¶0 Action by heirs against executor and his sister for fraudulent conveyance of real property by executor to his sister and breach of executor's fiduciary duty. The United States District Court for the Western District of Oklahoma, Fred Daugherty, Judge, certified four questions of law upon which there is no controlling Oklahoma precedent.

CERTIFIED QUESTIONS ANSWERED.

S. Paul Hammons, John J. Breathwit, Andrews, Davis, Legg, Bixler, Milsten & Murrah, Oklahoma City, for plaintiffs.

Robert W. Nelson, Ramey & Nelson, Yukon, for defendant, George H. McCann.

Michael C. Stewart, William J. Bergner, Stewart & Elder, Oklahoma City, for defendant, M. Kathryn Wood.

OPALA, Justice:

[664 P.2d 389]

¶1 Certified to us under the Uniform Certification of Questions of Law Act, 20 O.S. 1981 § 1601 et seq., are the following first-impression questions:

"1. Does 58 Okla. Stat. § 496 prohibit an Executor from selling property of the estate which he represents to his sister, where the sale is otherwise not subject to objection?

2. If the answer to question 1 above is in the affirmative, would such a sale be a fraudulent sale on its face without the need for any evidence of fraud in the sale?

3. 58 Okla. Stat. § 492 provides that an Executor who fraudulently sells any real estate of a decedent is liable in `. . . double the value of the land sold, as liquidated damages, to be recovered in an action by the person having an estate of inheritance therein.' When a Plaintiff does not seek to set aside the sale but seeks only money damages, should the Executor be given credit for the amount of money received by the estate from such fraudulent sale?

4. May an heir of an estate who recovers `liquidated damages' from an Executor pursuant to 58 Okla. Stat. § 492 also recover punitive damages?"

¶2 We hold (a) 58 O.S. 1981 § 496 does not prohibit an executor from selling property of the estate which he represents to his sister, where the sale is otherwise not subject to objection; (b) when a plaintiff does not seek to set aside the sale but seeks only money damages, the executor should be given credit for the amount received by the estate from such fraudulent sale and (c) an heir who recovers "liquidated damages" from an executor pursuant to 58 O.S. 1981 § 492 may not also recover punitive damages.

FACTS

¶3 The defendants are George H. McCann [Executor], executor of the estate of James S. McDonald [Decedent], and M. Kathryn Wood [Sister], sister of the executor. Their mother was the sister of the decedent. The dispute centers around the sale of certain real property in the estate by the executor to Claude Ellison [Ellison] who received an executor's deed. Shortly thereafter, Ellison and his wife conveyed the property to the executor's sister.

I.

SCOPE OF § 496

¶4 There is no Oklahoma law on whether 58 O.S. 1981 § 496 ,

¶5 The executor and the sister argue, on the contrary, that the standard to be applied in evaluating the fairness of the sale is whether there is a conflict between the personal interest of the executor and his fiduciary duty to the estate. They contend that the cases prohibiting a sale to a spouse are in apposite because, unlike spouses, siblings have no equitable interest in each other's property and are not forced heirs of each other. They do not share the intimate relationship enjoyed by husband and wife. They also contend that 58 O.S. 1981 § 496 is clear on its face and that there is no need to resort to the trust statutes for its interpretation. Executors and trustees are two distinct legal creatures and the statutes governing each are not in pari materia.

¶6 A transaction falling under § 496 is not always void, but rather voidable at the discretion of the court if it finds the transaction is not covered by a judicial exception to § 496.

¶7 Oklahoma, consistent with the general rule, prohibits an executor or guardian from selling property of the estate, either directly or indirectly, to a spouse.

¶8 The heirs argue that the same affection and intimacy of relation exists between siblings and that therefore a sale by an executor to his sister is presumptively fraudulent. We can find no authority for such a proposition and we do not think it comports with sound policy. Unlike spouses, siblings are [664 P.2d 391] not forced heirs of one another.

¶9 A survey of cases and authorities, both from other jurisdictions and from our own, indicates that when an executor sells to some close relative, other than the spouse, that circumstance does not, without more, void the transfer.

¶10 In Plant v. Schrock,

¶11 California's self-dealing statute is substantially the same as Oklahoma's.

¶12 The heirs stress that the trust statutes - 60 O.S. 1981 § 175.11

¶13 We find this argument unpersuasive. Although trustees and executors are both fiduciaries, they are separate and distinct legal creatures, with different powers and different duties.

¶14 Generally, statutes relating to the same class of persons or things or which have a common purpose should be viewed as in pari materia.

¶15 We reject the heirs' argument and adopt the general rule that near-relationship between the executor and the purchaser will not, alone, void the transfer. It is a circumstance to be carefully considered with all the other circumstances in the case.

II.

OFFSET OF MONEY RECEIVED BY EXECUTOR

¶16 The terms of 58 O.S. 1981 § 492 provide that an executor who fraudulently sells any real estate of a decedent is liable in ". . . double the value of the land sold, as liquidated damages, to be recovered in an action by the person having an estate of inheritance therein." When a plaintiff does not seek to set aside the sale but seeks only money damages, in computing the damages to be awarded under the statute the executor should be given credit for the amount of money received by the estate from the sales.

¶17 In Shawnee National Bank v. Van Zant,

¶18 If the heirs here sought to set aside the conveyance, they would be compelled to refund all of the purchase money distributed through the estate or used to pay necessary expenses of the estate. An heir is required to do equity as a condition precedent to relief. If he repudiates a sale, he must offer to restore whatever benefits he may have received from the sale.

¶19 The form of relief a plaintiff chooses should not dispense with the requirement that he do equity. To the extent the estate actually received money from the sale of the property, the executor should receive credit.

III.

DAMAGES UNDER § 492

¶20 The heirs contend that 58 O.S. 1981 § 492 is remedial in nature and that, under appropriate circumstances, they are entitled to recover punitive damages in addition to the "liquidated damages" provided for by statute.

¶21 The executor argues that the statute is penal in nature and that therefore punitive damages are not otherwise allowable. Both submit that the issue turns on whether the statute is penal or remedial.

¶22 Because of the different shades of meaning attributed to the words "penal" and "remedial" and because, in any case, a statute can be both penal and remedial, we decline to decide this question in those terms.

¶23 In Weihe v. Statham,

¶24 The court in Hochwender noted that only two sections in the probate code impose double liability. One is § 792 - exactly like Oklahoma's § 492 - which casts liability upon the executor for double the value of the land sold "as liquidated damages." Referring to Weihe v. Statham, the court noted that while § 759 (similar to our § 491) of the probate code makes a surety liable for actual damages from neglect or misconduct, § 792 imposed liability on the executor only, without specifically including the surety.

¶25 The other California statute imposing double liability is § 612 - exactly like Oklahoma's § 292. That section provides for double liability against any person who embezzles property of the decedent prior to the granting of letters of administration,

"Not only does this appear to be the intention of the legislature as expressed in these statutes, but there are good reasons why this should have been done. The bond being conditioned that the executor will faithfully perform his trust, it is logical and reasonable to impose liability upon the surety for his accounting for what comes into his hands, to secure the return of any assets of the estate which he takes or conceals, and for any actual damage caused by his neglect or his misconduct. But something going beyond this, imposing double liability, is in the nature of a penalty imposed upon the wrongdoer as a punishment for his act, and possibly as a warning to others, whether it is called a penalty or liquidated damages. Such double liability has only been imposed in those cases involving actual fraud as distinguished from neglect or misconduct. While such a punishment may well be imposed on the guilty party it would hardly be logical to impose it upon his bondsman who is not at fault, who is himself a victim of the same fraud, and who is already obligated to return the amount wrongfully taken."

¶26 Similarly, public policy prohibits insurance protection for punitive damages. In Dayton Hudson Corp. v. American Mutual [664 P.2d 396] Liability Insurance Company,47 we noted that because punitive damages are to punish and deter, insurance against them would contravene this policy.

¶27 We find that this legislative distinction is more significant than the use of the term "liquidated damages". Even in contract law, the use of the term is not determinative.48 Oklahoma allows for liquidated damages where it would be extremely difficult to determine the amount of actual damage.49 The legislature certainly could not, as the heirs argue, have been using the term in the vernacular, since in § 492 the amount of "liquidated damages" depends upon the amount of actual damages. Where, as here, the amount of actual damage is uncertain, this court held a provision for liquidated damages is in fact a penalty.50

¶28 The specific exclusion of the surety's liability from the two double damage statutes indicates that the legislature recognized that the double liability imposed is in the nature of a penalty.

¶29 BARNES, C.J., and IRWIN, HODGES, LAVENDER, DOOLIN, HARGRAVE and WILSON, JJ., concur.

Footnotes:

1 The federal court noted that certain disputed facts remain unresolved: (1) whether the executor knew his sale to Ellison was actually a sale to his sister; (2) whether the executor had any personal interest in the sale or purchase of the property; (3) whether the sale by the executor was for adequate consideration and (4) whether the sale to Ellison and/or the sister was in fact fraudulent.

2 The terms of 58 O.S. 1981 § 496 provide: "No executor or administrator must directly or indirectly, purchase any property of the estate he represents, nor must he be interested in any sale." 58 O.S. 1981 § 833 makes this section applicable to guardians' sales.

3 The terms of 60 O.S. 1981 § 175.11 provide in part: "No trustee shall directly or indirectly buy or sell any property for the trust from or to itself or an affiliate, . . . from or to himself, a relative, employer, partner, or other business associate. . .". For the purposes of the Oklahoma Trust Act, "relative" is defined in 60 O.S. 1981 § 175.3 (D) as: "a spouse, ancestor, descendant, brother, or sister, by blood or adoption."

4 58 O.S. 1981 § 496 .

5 Matter of Estate of Gaylord, Okl., 552 P.2d 392, 397, 6 A.L.R. 4th 778 [1976]. Oklahoma case law creates exceptions to § 496. An exception has been permitted where the testator expressly gave an executor the option to purchase an interest in the estate, when no conflict arose between his personal interests and fiduciary duties. Lanie v. Lanie, Okl., 499 P.2d 401, 404 [1972]. An administrator was permitted to purchase real property at a judicial sale where he had no part in procuring the sale and exercised no control over the price or terms of the sale. Turner v. Kirkwood, 49 F.2d 590, 595 [10th Cir. 1931]; Mauch v. Mauch, Okl., 486 P.2d 708, 712 [1971]. More recently, this court permitted an executor to sell stock, which was an asset of the estate, to a corporation in which he had a controlling interest pursuant to the corporation's exercise of a contractual right of first refusal. The court determined that no fraud was involved and the price was equitable. Estate of Gaylord, supra.

6 Crume v. Rivers, 178 Okl. 363, 61 P.2d 862, 864 [1936]; Gay v. Williams, 102 Okl. 37, 226 P. 88 [1924]; Brooks v. Tucker, 83 Okl. 255, 201 P. 643, 644 [1921]; Winsted v. Shank, 68 Okl. 269, 173 P. 1041 [1918]; Langley v. Ford, 68 Okl. 83, 171 P. 471, 473 [1918]; Chastain v. Pender, 52 Okl. 133, 152 P. 833 [1915]; Burton v. Compton, 50 Okl. 365, 150 P. 1080, 1081-1082 [1915].

7 84 O.S. 1981 § 213 .

8 Burton v. Compton, supra note 6; Chastain v. Pender, supra note 6.

9 84 O.S. 1981 § 213 .

10 See generally Scott on Trusts, Vol. 2, § 170.6 at p. 867; see Annot. in 131 A.L.R. 990.

11 Setaro v. Pernigotti, 105 Conn. 685, 136 A. 571, 572 [1927] (sale to daughter); In Re Ettlinger's Estate, 87 Cal. App. 2d 494, 197 P.2d 163, 166 [1948] (sale of heir's interest to mother and aunt); In Re Denlinger's Estate, 98 Cal. App. 2d 130, 219 P.2d 495, 496 [1950] (sale to daughter and son-in-law); In Re Minch's Will, 71 N.E.2d 144, 146-147 [Ohio App. 1946] (sale to father, mother and mother's cousin); Robinson v. Ham, 215 N.C. 24, 200 S.E. 903, 905 [1939] (loan to uncle and father); Pettigrew v. Gamache, 104 N.H. 530, 191 A.2d 92 [1963] (sale to son); Oliphant v. Carr, 103 N.J. Eq. 165, 142 A. 430 [1928], aff'd, 106 N.J. Eq. 283, 151 A. 907 [1930] (sale to daughter); Grandy v. Robinson, 180 Or. 315, 175 P.2d 463, 467-468 [1946] (lease to son-in-law); Cain v. McGeenty, 41 Minn. 194, 42 N.W. 933 [1889] (sale to son); Earney v. Clay, 516 S.W.2d 59, 64-65 [Mo. App. 1974] (sale to parents); Anderson v. Bean, 272 Mass. 432, 172 N.E. 647, 653-654, 72 A.L.R. 959 [1930]; Cf. Turner v. Turner, 34 Okl. 284, 125 P. 730, 734 [1912] (sale to brother and to self upheld as necessary to protect interests already owned).

12 Pevehouse v. Adams, 52 Okl. 495, 153 P. 65, 66 [1915] (sale to children for grossly inadequate price); Plant v. Schrock, 102 Okl. 97, 227 P. 439, 441 [1924] (sale through third party to sister-in-law for no consideration for purpose of procuring loan); Prentice v. Townsend, 143 A.D. 151, 127 N.Y.S. 1006, 1007 [1911] (sale to brother who immediately reconveyed to executor); Carter v. Burr, 46 N.Y.S. 134, 18 A. 463, 464 [N.J. 1889] (sale to self for son for inadequate consideration); In Re Istocin's Estate, 126 Pa.Super. 158, 190 A. 382, 386 [Pa. 1937] (sale to brother/agent who reconveyed to executor); Miller v. Rich, 204 Ill. 444, 68 N.E. 488, 491 [1903] (sale to son who conveyed to mother who reconveyed to husband/administrator for inadequate consideration furnished by administrator); Thiel v. Cruikshank, 96 Mich. App. 7, 292 N.W.2d 150, 151-152 [1980] (sale of 1/2 interest for inadequate consideration to son and simultaneous acquisition of 1/2 interest by executor, with subsequent resale of combined interests to third party whereby executor personally benefited); Shaw v. Tackaberry, 29 Ont.L.Rep. 490, 15 D.L.R. 475 [1913] (sale through agent to sister in satisfaction of executor's own debt); Buckingham v. Wesson, 54 Miss. 526 [1877] (sale to son for executor's own use).

13 Supra note 12.

14 Cal.Probate Code § 583 [West 1981].

15 Supra note 11; see also In Re Ettlinger's Estate, supra note 11.

16 28 Cal. 2d 602, 170 P.2d 873 [1946].

17 As in Oklahoma, a sale to a spouse is prohibited in California as a violation of the statute. Strudthoff v. Yates, supra note 16.

18 In Re Denlinger's Estate, supra note 15.

19 In Re Denlinger's Estate, supra note 15 at 496.

20 See text of 60 O.S. 1981 § 175.11 in footnote 3.

21 See text of 58 O.S. 1981 § 496 in footnote 2.

22 The Restatement clearly states that an executor is not a trustee. Restatement (Second) of Trusts § 6 at pp. 18-21 [1959]. See also A. Scott, Scott on Trusts, Vol. 1 § 6 at pp. 56-63 [3d ed. 1967]; G. Bogert, The Law of Trusts and Trustees, § 12 at pp. 42-58 [2d ed. 1967]; Note, 52 Marquette L.Rev. 303 [1968].

23 Restatement (Second) of Trusts § 6 at page 19 [1959]; A. Scott, Scott on Trusts, supra note 22 at 58, see also, G. Bogert, The Law of Trusts and Trustees, supra note 22 at 47.

24 A. Scott, Scott on Trusts, supra note 22 at 56. See also G. Bogert, The Law of Trusts and Trustees, supra note 22.

25 In Re Cook's Trust, 192 Okl. 291, 135 P.2d 492, 494 [1943]; Mahoney v. McBirney, 184 Okl. 75, 84 P.2d 600, 601 [1938].

26 DeGraffenried v. Iowa Land Trust Co., 20 Okl. 687, 95 P. 624, 639 [1908]; State v. Phillips Petroleum Co., 189 Okl. 629, 118 P.2d 621, 625 [1941].

27 See e.g. Tooahnippah v. Hickel, 397 U.S. 598, 606, 90 S. Ct. 1316, 1321, 25 L. Ed. 2d 600 [1970].

28 Some jurisdictions hold that in transactions involving a near-relative, the burden of proof of loyalty rests with the fiduciary. See In Re Minch's Will, supra note 11; In Re Segal's Estate, 170 Misc. 673, 11 N.Y.S.2d 306, 310 [Surr.Ct. 1939]; In Re Equitable Office Bldg. Corp., 83 F. Supp. 531, 565 [S.D.N.Y. 1949], rev'd on other grounds, 175 F.2d 218 [2d Cir. 1949]. We are not called upon to decide that point today.

29 See supra note 5 and cases cited therein.

30 84 Okl. 107, 202 P. 285 [1921], overruled on other grounds; Hembree v. Magnolia Petroleum Co., 176 Okl. 524, 56 P.2d 851 [1935].

31 The terms of 58 O.S. 1981 § 292 provide: "If any person, before the granting of letters testamentary or of administration, embezzles or alienates any of the monies, goods, chattels or effects of a decedent, he is chargeable therewith, and liable to an action by the executor or administrator of the estate, for double the value of the property so embezzled or alienated, to be recovered for the benefit of the estate."

32 Shawnee National Bank v. Van Zant, supra note 30, 202 P. at 290, quoting Rutherford v. Thompson, 14 Or. 236, 12 P. 382 [1886].

33 Chastain v. Pender, supra note 6; Hammert v. McKnight, 132 Okl. 14, 269 P. 289, 291 [1928].

34 In support of their proposition the heirs cite Shawnee Nat'l Bank v. Van Zant, supra note 30, and Hembree v. Magnolia Petroleum Co., supra note 30. In Van Zant, the heirs brought suit under Section 6324, R.L. 1910 (now 58 O.S. 1981 § 292 , cited in full supra note 31) which provided for double damages in case of embezzlement. The court there stated that the statute did not give the administrator a new right of action nor create a new remedy because the administrator could sue for conversion irrespective of the statute. Therefore, the court stated that the statute was remedial and merely increased the quantum of damages recoverable for wrongful conversion. The heirs argue by analogy that § 492 is also remedial. We do not find the Van Zant case persuasive. Although this court did there state that § 292 is remedial, that does not preclude the damages from also being a penalty. In fact, later in Nichols & Shepard Co. v. Dunnington, 118 Okl. 231, 247 P. 353, 355 [1926] we called the § 292 double damages "a penalty". Additionally, the rationale in Van Zant is particularly suspect. The court there relied on the California case of Beckham [sic] v. McKay, 14 Cal. 251 [1859], construing a California statute exactly like § 292. (The correct name of the statute in concern is now Cal.Prob.Code § 612, the case is Beckman v. McKay, 14 Cal. 251 [1859]). The court cited Beckman as holding that the California statute was remedial. The Beckman case held just the opposite - 14 Cal. at 253 - that the statute was penal. Another California case, Jahns v. Nolting, 29 Cal. 508, 513 [1866] held thereafter that the statute was remedial. Later in Hochwender v. Carter, 45 Cal. App. 2d 435, 114 P.2d 401, 402 [1941], the California Court of Appeals held that the statute imposed a penalty. This court's treatment of § 292 has been similarly confusing. Because § 292 has been subject to this checkered interpretation, we see no benefit in attempting to analogize it to § 492.

See text of 58 O.S. 1981 § 492 in footnote 37.

35 For a discussion of the penal/remedial distinction in the international-law sense, see Tulsa Ready-Mix Concrete Co. v. McMichael Concrete Co., Okl., 495 P.2d 1279, 1282 [1972]; Huntington v. Attrill, 146 U.S. 657, 13 S. Ct. 224, 227-228, 36 L. Ed. 1123 [1892]. This court has repeatedly recognized that a statute may be penal in some aspects and remedial in others. Tulsa Ready-Mix Concrete Co. v. McMichael Concrete Co., supra; Franklin Drilling Co. v. Jackson, 202 Okl. 687, 217 P.2d 816, 818-819 [1950]; Watkinson v. Adams, 187 Okl. 432, 103 P.2d 498, 500 [1939]. The distinction is not helpful here.

36 67 Cal. 245, 7 P. 673 [1885].

37 The California Statute, Section 1572 of the Code of Civil Procedure (now Cal.Prob.Code § 792) provides in full: "Any executor or administrator who fraudulently sells any real estate of a decedent contrary to, or otherwise than under, the provisions of this chapter, is liable in double the value of the land sold, as liquidated damages, to be recovered in an action by the person having an estate of inheritance therein."

Section 492 of the Oklahoma Probate Code (58 O.S. 1981 § 492 ) provides exactly the same: "Any executor or administrator who fraudulently sells any real estate of a decedent, contrary to or otherwise than under the provisions of this chapter, is liable in double the value of the land sold, as liquidated damages, to be recovered in an action by the person having an estate of inheritance therein."

38 58 O.S. 1981 § 491 provides in full: "If there is any neglect or misconduct in the proceedings of the executor or administrator in relation to any sale, by which any person interested in the estate suffers damage, the party aggrieved may recover the same in an action upon the bond of the executor or administrator or otherwise." Section 1571 of the California Code of Civil Procedure (now Cal.Prob.Code § 759) is exactly the same.

39 Supra note 34.

40 Cal.Prob.Code § 610 [West 1981].

41 Cal.Prob.Code § 955 [West 1981].

42 Cal.Prob.Code § 759 [West 1981].

43 58 O.S. 1981 § 288 (liability for failure to file an inventory); 58 O.S. 1981 § 598 (liability for failure to give notice to creditors); 58 O.S. 1981 § 491 (liability for actual damages caused by neglect or misconduct in the sale of property).

44 See footnote 31 for text of 58 O.S. 1981 § 292 .

45 Hochwender v. Carter, supra note 34, 114 P.2d at 402.

46 Hochwender v. Carter, supra note 34, 114 P.2d at 402.

47 Okl., 621 P.2d 1155, 1158 [1980].

48 Mid-Continent Life Ins. Co. v. Goforth, 193 Okl. 314, 143 P.2d 154, 159 [1943].

49 Waggoner v. Johnston, Okl., 408 P.2d 761, 769 [1965].

50 Mid-Continent Life Ins. Co. v. Goforth, supra note 48.

51 While a provision for double damages does not automatically render a statute penal, in most cases where this court has examined a statute providing for multiple damages, we have determined that they are in the nature of a penalty. See Nichols & Shepard Co. v. Dunnington, supra note 34 at 355; Crow v. Davidson, 186 Okl. 84, 96 P.2d 70, 72 [1939]; State v. Board of Education of Ind. School Dist. No. 74, 206 Okl. 699, 246 P.2d 368, 373 [1952]; Western Union Telegraph Co. v. Coyle, 24 Okl. 740, 104 P. 367, 369 [1909].

52 See Dayton Hudson Corp. v. American Mutual Liability Ins. Co., supra note 47, 621 P.2d at 1160.

53 Other jurisdictions recognize the concept of punitive liquidated damages. See generally Stringer v. Griffin Grocery Co., 149 S.W.2d 158, 161 [Tex. App. 1941]; Duke v. Helena-Glendale Ferry Co., 203 Ark. 865, 159 S.W.2d 74, 77 [1942]; Whatley v. Love, 13 So. 2d 719, 722 [La. App. 1943]; Jeansonne v. Marath, 61 So. 2d 598, 600 [La. App. 1952].