Opinion
No. 66757.
February 2, 1988.
Appeal from the District Court, Tulsa County, David E. Winslow, J.
Certiorari to the Court of Appeals, Division 4.
On appeal from the District Court, Tulsa County, David E. Winslow, Judge, the Court of Appeals, Division 4, reversed and remanded, with instructions, a trial court's order admitting a will to probate.
CERTIORARI GRANTED; OPINION OF THE COURT OF APPEALS VACATED; CAUSE REMANDED TO THE COURT OF APPEALS, DIVISION 4, FOR RECONSIDERATION OF THE RECORD WITH DIRECTIONS.
R. Scott Savage, James R. Miller, Messrs. Moyers, Martin, Santee, Imel Tetrick, Tulsa, for appellants.
Dennis J. Downing, Charles Whitebook, Tulsa, for appellee.
MEMORANDUM OPINION ON CERTIORARI
Upon examination of appellee's petition and the appellants' answer, certiorari is granted, the opinion of the Court of Appeals is vacated, and this cause is remanded to the Court of Appeals, Division 4, with directions that it conduct another review of the record in this appeal and:
1) exclude from consideration any evidentiary material which, though on file in the office of the trial court's clerk, was not offered for admission in the trial proceedings that culminated in the decision under appellate scrutiny.
If deposition testimony on file in the office of the trial court's clerk was not offered during any trial proceedings, or if it was offered, rejected, re-offered for the record, and then found, on review, to have been correctly excluded, that deposition may not be considered as part of the evidence in the case. Only that deposition testimony which was offered and properly admitted during the trial or hearings, or that which, though refused admission, was retendered by proffer and then found on appeal to have been improperly excluded may be deemed to form a part of the evidentiary record to be reviewed. The court's opinion in Revelle v. Johnston, Okla.App., 635 P.2d 1330, 1332 [1981], is hereby overruled insofar as its language is in discord with the rule pronounced in this memorandum opinion; and
See Frey v. Independence Fire and Cas. Co., Okla., 698 P.2d 17, 20 [1985]; Eckel v. Adair, Okla., 698 P.2d 921, 924 [1985]; State ex rel. Department of Highways v. Lehman, Okla., 462 P.2d 649, 650 [1969]; In re Hess' Estate, Okla., 379 P.2d 851, 859 [1963]; and Owens v. Luckett, 192 Okla. 685, 139 P.2d 806, 807 [1943].
2) refrain from ordering the admission to probate of any prior testamentary instrument executed by the decedent, which was not propounded for probate in the trial court proceedings under review.
On review of a probate matter the appellate court cannot assume greater jurisdiction over the case than that which the trial court was itself able to exercise. Bryan v. Seiffert, 185 Okla. 496, 94 P.2d 526, 531-532 [1939] and Spain v. Kernell, Okla., 672 P.2d 1162, 1165 [1983].
CERTIORARI GRANTED; OPINION OF THE COURT OF APPEALS VACATED; CAUSE REMANDED TO THE COURT OF APPEALS, DIVISION 4, FOR RECONSIDERATION OF THE RECORD WITH DIRECTIONS.
HARGRAVE, V.C.J., and SIMMS, ALMA WILSON, KAUGER and SUMMERS, JJ., concur.
HODGES and LAVENDER, JJ., dissent.