Summary
In Sims v. Billings, 162 Okla. 51, 18 P.2d 1084, and Sims' Estate, 162 Okla. 35, 18 P.2d 1077, it was held that where one left a will and did not name the executor, the surviving spouse had the right to nominate the administrator with will annexed. Under section 1135, supra, the guardian does not have the right of nomination in the stead of the surviving spouse.
Summary of this case from In re Johnson's EstateOpinion
No. 21313
Opinion Filed January 24, 1933. Rehearing Denied February 14, 1933.
(Syllabus.)
1. Executors and Administrators — Appointment of Administratrix With Will Annexed — Appointment of Successor as Agreed Effective as Acceptance of Resignation.
Where a duly appointed and qualified administratrix with will annexed files in the county court having jurisdiction an application for the appointment of a successor and that court appoints a successor, the order of appointment is, in legal effect, an acceptance of the resignation of the administratrix with will annexed.
2. Same — Power of Appointment of Successor not Dependent on. Filing of Final Account.
The power of appointment of an administrator with will annexed is not dependent on the filing of a final account by a former administratrix with will annexed.
3. Same — Preference Given Widow in Appointment — Notice of Application Unnecessary.
The widow of a testator who named no executrix is entitled to preference in the appointment as administratrix with will annexed, and either she or some competent person whom she may request is entitled to the appointment without notice of the application for the appointment.
4. Wills — Election by Widow to Take Under Will — Right to Revoke Election.
An election by a widow to take under the provisions of the will will not be enforced where it appears that it was not the result of intelligent and discriminating choice with full knowledge of the facts and where no interested person has changed his position in reliance upon the election to such an extent as to make it inequitable to permit the withdrawal thereof.
5. Descent and Distribution — Statutory Rights of Surviving Spouse as Forced Heir.
Under section 11224, C. O. S. 1921, the husband and wife, while married, each becomes the forced heir of the other to the extent of one-third of the property owned by the other, which interest cannot be bequeathed by the owner from such heir.
6. Same — Wills — Election by Widow to Take Under Law — County Court Held Without Authority to Distribute to Her More Than One-Third of Estate.
A county court, after determining that the deceased died testate prior to the amendment to section 11224, C. O. S. 1921 (the will disposing of his entire estate), leaving surviving him a widow and other heirs, and that the widow has elected to take under the law rather than under the provisions of the will, is without authority of law to distribute more than one-third of the estate to the widow to the exclusion of the devisees and legatees named in the will.
7. Same — Invalidity of Decree — Collateral Attack.
Where the record in a case affirmatively discloses the facts to be such that such court is without power in such case to make the order or decree it assumes to make, the same is void, and therefore subject to collateral attack for want of jurisdiction to the extent, at least, that such court is without power to make the same.
8. Same — Descent and Distribution — Statute not Applicable Where Estate Disposed of by Will.
The provisions of subdivision 2, section 11301, C. O. S. 1921, are applicable "when any person having title to any estate not otherwise limited by marriage contract dies without disposing of the estate by will, * * *" but they are not applicable where the estate has been disposed of by will.
9. Same — Election by Widow to Take Under Law Rather Than Under Will — Effect Upon Bequests to Her.
Where the widow of a testator elects to take under the law rather than under the provisions of the will, a devise and bequest to her in the will lapses and, if not disposed of by other provisions of the will passes under the laws of succession as though the testator had died leaving no widow surviving him.
Appeal from District Court, Woods County; Arthur G. Sutton, Judge.
Action by Chris Sims and another against John Billings and others. Judgment for defendants, and plaintiffs appeal. Reversed and remanded, with directions.
R.M. Chase and Mauntel Spellman for plaintiffs in error.
Hadwiger Hadwiger and E.W. Snoddy, for defendants in error.
This is an appeal from a judgment of the district court of Woods county, Okla., by the plaintiffs in error, who were the plaintiffs in that court, that judgment being in favor of the defendants in error, who were the defendants in that court.
The land involved in this action is the same and the issues presented on this appeal are substantially the same as those in Re Appeal of Sims' Estate, this day decided, 162 Okla. 35, 18 P.2d 1077, this action being one to quiet title to the real estate, while that one was on appeal from an order denying a prayer to vacate an order.
All the proceedings had in the administration of the estate of J.H. Sims, deceased, are involved herein and substantially the same evidence was presented in this case as in the case of In re J.H. Sims' Estate, supra. A restatement of the facts here is unnecessary. There is no order consolidating the two cases, but as the questions involved are almost identical, reference is here made to the statement of facts in that case, and the two cases may well be considered together.
In that case all the proceedings had in the administration of J.H. Sims' estate were held to be regular and in conformity with law, save and except that part of the decree of distribution made in the county court which purported to decree title in fee simple to the lands involved in Mag Hyatt or Maggie Sims and her heirs forever. Under the record we so hold in this case.
In that case we held that the decree of distribution was void on its face. We so hold here. Since that decree was void on its face, proceedings herein may be maintained. However, the plaintiffs are not entitled to the relief prayed for, for they are not the owners of all of the real estate claimed by them herein. They are the owners of only that portion of the real estate which this court directed to be distributed to them in Re J.H. Sims' Estate, supra. It will require a determination by the county court in the probate proceedings to determine what that interest is.
The judgment of the trial court is reversed and the cause is remanded to that court, with directions to grant the plaintiffs a new trial and to proceed further not inconsistent herewith.
CULLISON, V. C. J., and SWINDALL, OSBORN, BAYLESS, BUSBY, and WELCH, JJ., concur. RILEY, C. J., dissents. McNEILL, J., absent.
Note. — See under (3) annotation in 1 A. L. R. 1245; 11 R. G. L. 35. (5) R. G. L. Perm. Supp. p. 2402. (9) annotation in 22 A. L. R. 439; 68 A. L. R. 507; 9 R. C. L. 601; R. C. L. Perm. Supp. p. 2513.