Estate of Speake, Matter of

Annotate this Case

Estate of Speake, Matter of
1987 OK 61
743 P.2d 648
58 OBJ 1982
Case Number: 63179
Decided: 07/07/1987
Supreme Court of Oklahoma


Appeal from the District Court, Carter County, Thomas S. Walker, J.


The District Court, Carter County, Thomas S. Walker, Judge, dismissed a post-probate will contest as untimely brought. The Court of Appeals affirmed. Certiorari is granted.


Winford Mike Warren, Hollis, for appellant Pamela Elaine Speake.

Darryl F. Roberts, Messrs. Roberts & Duncan, Ardmore, for appellee Matha Speake.

OPALA, Justice.

[743 P.2d 649]

¶1 The dispositive issue on certiorari is whether the one-year "recommencement-of-actions" provisions in 12 O.S. 1981 § 100 , also known as a "renewal statute," extend the time prescribed in 58 O.S. 1981 § 67 to bring a post-probate will contest for a period of one year from the date the initial, timely-filed contest failed otherwise than on the merits. We answer in the negative.

¶2 The testator's will was admitted to probate on June 24, 1980. His daughter [contestant], a minor when the will was probated, initiated a post-probate contest on August 29, 1983.

¶3 The contestant voluntarily dismissed the proceeding on June 18, 1984 without prejudice. Less than one month later, but more than a year after she had reached the age of majority, she reinstituted the post-probate contest of her father's will. Acting on the executrix' motion the trial court dismissed the proceeding as untimely. It held the provisions of § 100 are inapplicable to a post-probate will challenge because the contest does not qualify as an "action." The affirmance of the trial court's dismissal in an opinion by the Court of Appeals rests on the same legal analysis. Because we are persuaded to affirm on grounds quite different from those found apposite by the Court of Appeals, we grant certiorari to give guidance on the dispositive point [743 P.2d 650] pressed by the contestant's plea for corrective relief.



¶4 The time limits that govern the post-probate contest of a will, 58 O.S. 1981 § 67 , are:

"If no person, within three (3) months after the admission to probate of a will, contests the same or the validity thereof, the probate of the will is conclusive, saving to infants and persons of unsound mind, a period of one (1) year after their respective disabilities are removed." [Emphasis added.]

¶5 Since the one-year period allowed by § 67 had run when the contestant refiled the proceeding after voluntarily dismissing her initial post-probate will contest, she cannot prevail unless the statutory recommencement-of-actions provisions in 12 O.S. 1981 § 100 are held to have extended the time limit prescribed by § 67. Section 100 provides:

"If any action is commenced within due time, and a judgment thereon for the plaintiff is reversed, or if the plaintiff fail in such action otherwise than upon the merits, the plaintiff, or, if he should die, and the cause of action survive, his representatives may commence a new action within one (1) year after the reversal or failure although the time limit for commencing the action shall have expired before the new action is filed." [Emphasis added.]

¶6 A lawsuit timely filed when brought but later dismissed on grounds unrelated to the merits of the controversy falls within the ameliorative relief affordable under the terms of 12 O.S. 1981 § 100 .

¶7 Oklahoma received the recommencement-of-actions provision from the laws of Kansas.

[743 P.2d 651]

¶8 When we adopted § 100, the Kansas Supreme Court had held in Medill v. Snyder

¶9 For the reasons to be discussed later in this opinion, the Medill analysis is equally compelling when examined in the light of other applicable legal doctrines.



¶10 Section 100, which operates generally to extend statutory limitations, is remedial in nature. It serves to lengthen only the period allowed for the commencement of an action or proceeding

¶11 Another principle of law may be invoked to reinforce the result we reach today. Where, as here, there are two statutory provisions - one of which is general and the other special because it clearly includes the matter in controversy and prescribes different rules and procedures from those in a general provision - the special, and not the general statute, must be applied.



¶12 Medill rests on the law's notion that a lapse-of-time provision like that found in § 67 is a condition on the right to wage a contest. The condition goes unfulfilled when a contest is not brought within the specified time. By force of the Medill rationale the right to contest a will is lost upon expiration of the statutorily prescribed interval. Implicit in its teaching is the view that the § 67 time bar is to be regarded as a limitation upon the court's power to exercise its cognizance over a post-probate contest.

A. The right/remedy dichotomy

¶13 The common law recognizes two different time bars that are conceptually distinct: [1] an "ordinary" or "true" statute of limitations that regulates the time to bring an action and [2] a time limit that establishes a condition upon the right or constitutes a substantive element of the claim.

¶14 In short, § 100 does not extend the time to bring a post-probate will contest because the terms of § 67 do not merely provide and bar a remedy; rather, they extinguish the right to challenge a will after its probate.

B. The distinction between a statutory limitation on the time to bring an action and a restriction on one's right to challenge previous judicial action in admitting a will to probate.

¶15 If the time limits in § 67 governed merely the time to bring an action, they could be regarded as an ordinary statute of limitations and be extended by § 100. But if the § 67 time bar must be regarded as limiting the court's power to entertain the contest, then the § 100 recommencement period cannot extend the § 67 time bar. This is so because the power of the court ceases at the expiration of the very period prescribed for its exercise.

¶16 Whether the statutory period for bringing a post-probate will contest constitutes a limitation on the exercise of judicial power or a limitation on bringing an action is to be divined from the legislative intent.

¶17 The contestant's second petition for post-probate contest was correctly dismissed as untimely brought. The opinion by the Court of Appeals is vacated and the trial court's dismissal order is affirmed.

¶18 DOOLIN, C.J., HARGRAVE, V.C.J., and LAVENDER, SIMMS and WILSON, JJ., concur.

¶19 HODGES and KAUGER, JJ., dissent.


1 The testator's daughter alleged in her petition that she had attained the age of majority on October 27, 1982.

2 The one-year extension allowed by 12 O.S. 1981 § 100 to recommence an action is the outgrowth of the ancient common-law rule of "journey's account." Its purpose was to allow a reasonable time for a "journey" to court to sue out a writ. Baker v. Cohn, 266 App.Div. 236, 41 N.Y.S.2d 765, 767 [1943]; Jackson v. Prairie Oil & Gas Co., 115 Kan. 386, 222 P. 1114, 1115 [1924] and Hodges v. Home Ins. Co. of New York, 233 N.C. 289, 63 S.E.2d 819, 820 [1951]. Section 100 is identical in purpose and form to its English prototype, the English Limitation Act of 1623, 21 Jac. I, c. 16, § 4 . See, Gaines v. City of New York, 215 N.Y. 533, 109 N.E. 594, 595-596 [1915].

3 C & C Tile Co. v. Independent Sch. D. No. 7 of Tulsa Cty., Okl., 503 P.2d 554, 559 [1972]. Where a timely commenced action is dismissed without prejudice on the plaintiff's motion before trial on the merits but after the statute of limitations has run, the plaintiff may commence a new action within a year after such dismissal. Powers v. Atchison, Topeka and Santa Fe Railway Co., Okl., 392 P.2d 744, 745 [1964].

4 Amsden v. Johnson, 74 Okl. 295, 158 P. 1148, 1149 [1916].

5 The prestatehood construction placed by the Kansas Supreme Court on a statute adopted by Oklahoma becomes codified with the statute and thus has the same effect as though it had been expressly carried into the body of the legislative law. Atlantic Richfield Co. v. State, Okl., 659 P.2d 930, 934 [1983]; Horath v. Pierce, Okl., 506 P.2d 548, 554 [1973]; Brook v. James A. Cullimore & Co., Okl., 436 P.2d 32, 34 [1967]; In re Fletcher's Estate, Okl., 308 P.2d 304, 311 [1957] and Harness v. Myers, 143 Okl. 147, 288 P. 285, 288 [1930].

6 Medill v. Snyder, 71 Kan. 590, 81 P.2d 216 [1905].

7 The court in Medill v. Snyder, supra note 6 at 217, observed that the purpose of the law [§ 67] is "to protect devisees, legatees, executors, and trustees in their property rights, to foil efforts on the part of designing persons to foment annoying and embarrassing litigation, and generally to prevent the questioning of wills after time has removed witnesses and obscured the circumstances of their execution." This is so because, according to Medill, statutes authorizing post-probate contests are distinguishable from a true statute of limitations whose time may be extended by the renewal provisions. The former [1] concerns itself primarily with the creation and regulation of jurisdiction and procedure, [2] makes the probate of a will conclusive and forever binding, [3] establishes the title to real and personal property under probated wills and [4] creates indisputable evidence of such title. This, the court opined, went beyond merely providing a remedy to one who may desire to be placed in the role of a contestant. The Medill teaching was applied to other post-probate will contests. See Kunze v. Kunze, 145 Kan. 72, 64 P.2d 568, 571 [1937]; Rishel v. McPherson County, 122 Kan. 741, 253 P. 586, 592 [1927] and Ferrier v. Ferrier, 108 Kan. 130, 193 P. 1071 [1920]. A commitment to the Medill principle stands reaffirmed in more recent decisions. See Lakeview Village, Inc. v. Bd. of Cty. Com'rs., 232 Kan. 711, 659 P.2d 187 [1983] (taxpayer's action for recovery of taxes paid under protest) and Hodge v. Hodge, 191 Kan. 390, 381 P.2d 329 [1963] (vacation of divorce decree). The underlying principles of Medill are discussed in Annot., 79 ALR2d 1309, 1323-1326, § 5[a]. In Alakiotis v. Lancione, 12 Ohio Misc. 257, 232 N.E.2d 663, 666 [1966], the court reached the same conclusion as in Medill and cited with approval to the text of the annotation at 79 ALR2d 1309. More recently Lancione was followed in Barnes v. Anderson, 17 Ohio App.2d 142, 478 N.E.2d 248 [1984].

8 Pinson v. Robertson, 197 Okl. 419, 172 P.2d 625, 627 [1946] and Williams v. Okla. Nat. Stockyards Co., Okl., 577 P.2d 906 [1978].

9 Pinson v. Robertson, supra note 8, 172 P.2d at 627.

10 Preferred Risk Mutual Insurance Co. v. O'Brien, Okl., 440 P.2d 698 [1968].

11 12 O.S. 1981 § 176 , now repealed, was replaced by 12 O.S.Supp. 1984 §§ 2004 and 2005 . See, Wall v. Snider, 93 Okl. 97, 219 P. 671, 672 [1923].

12 Gassin v. McJunkin, 173 Okl. 210, 48 P.2d 321, 326 [1935] and Oberlander v. Eddington, Okl., 391 P.2d 889, 893 [1964].

13 Austin v. Curry, Okl., 651 P.2d 1320 [1982].

14 See 51 O.S.Supp. 1984 § 151 and Johns v. Wynnewood School Bd. of Educ., Okl., 656 P.2d 248 [1982].

15 Mayweather v. Wallace, 195 Okl. 587, 159 P.2d 529 [1945].

16 Pinson v. Robertson, supra note 8, 172 P.2d at 627.

17 See American Bank of Oklahoma v. Adams, Okl., 514 P.2d 1191, 1193 [1973]; Wall v. Snider, supra note 11, 219 P.2d at 672; Busby v. Eaves, 205 Okl. 346, 237 P.2d 445, 447 [1951]; Gassin v. McJunkin, supra note 12, 48 P.2d at 326 and Oberlander v. Eddington, supra note 12, 391 P.2d at 893.

18 City of Tulsa v. Smittle, Okl., 702 P.2d 367, 371 [1985] and Ind. Sch. Dist. No. 1 v. Bd. of Cty. Com'rs, Okl., 674 P.2d 547, 550 [1983].

19 Hiskett v. Wells, Okl., 351 P.2d 300, 304 [1959].

20 Lapse of time that brings about the extinguishment of rights is a legal concept which comes to us from the Roman-law doctrine known as prescription. It affords a mode of acquiring property. Opala, Praescriptio Temporis and Its Relation to Prescriptive Easements in the Anglo-American Law, 7 Tulsa L.Rev. 107, 108-110 [1971]. Limitations did not operate at common law to confer a right but merely to bar the demandant's remedy.

21 Oklahoma jurisprudence abounds in time limits that extinguish the challenger's right and limit the court's power to act, as well as destroy the remedy.

[1] In Stolfa v. Gaines, 140 Okl. 292, 283 P. 563, 567-570 [1930], the court recognized that the provisions of 60 O.S. 1981 § 333 , which confer title by prescription upon one who has occupied land adversely for the prescriptive period, abrogate the common law. The latter system did not permit an adverse occupant to claim title but only to interpose a defense to the demandant's action for possession. [2] In State ex rel. Cent. State Griffin Mem. Hosp. v. Reed, Okl., 493 P.2d 815, 817-818 [1972], we held that the common-law doctrine of nullum tempus occurrit regi or nullum tempus occurrit reipublicae - under which statutory limitations, unless expressly made applicable to the state, do not run against the sovereign - does not confer upon the State an exemption from compliance with the four-month time limit during which creditors are required to file their claims against a decedent's estate. Under the Reed rationale the statutory time limit on claims operates to destroy the creditors' rights rather than to affect merely their remedy against the estate of a deceased debtor.

[3] A so-called "statute of creation" in which a time limit for the commencement of an action is annexed to a newly created liability as an indispensible condition or as an inherent element of the right so created. Saak v. Hicks, Okl., 321 P.2d 425, 429 [1958]; Hiskett v. Wells, supra note 19, 351 P.2d at 304; Phillips Petroleum Co. v. United States Fidel. & G. Co., Okl., 442 P.2d 303, 305 [1968] and Trinity Broadcasting Corp. v. Leeco Oil Co., Okl., 692 P.2d 1364, 1367 [1984].

22 State ex rel. Cent. State Griffin Mem. Hosp. v. Reed, supra, 493 P.2d note 21.

23 Mayweather v. Wallace, supra, 159 P.2d note 15; In Re Estate of Redwine, Okl., 445 P.2d 275, 278 [1968]; Battle v. Mason, Okl., 293 P.2d 324, 328 [1955]; Cooper v. Newcomb, 73 Okl. 53, 174 P. 1029, 1031 [1918].

24 The contestant cites Williams v. Okla. Nat. Stockyards Co., supra note 8, and argues that 12 O.S. 1981 § 100 should apply both to special proceedings as well as to actions. We agree. Williams, which is distinguishable from this case, can bring no comfort to this contestant. The one-year extension invoked in Williams was sought to enlarge the time for the commencement of an action after a previously brought special proceeding had failed otherwise than on the merits. In this case contestant incorrectly argues that § 100 also extends the time to challenge judicial action - a will's prior probate.


This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.