In Matter of Estate of Long

1979 OK CIV APP 75, 601 P.2d 747, 1979 Okla. Civ. App. LEXIS 127
CourtCourt of Civil Appeals of Oklahoma
DecidedSeptember 4, 1979
DocketNo. 51882
StatusPublished

This text of 1979 OK CIV APP 75 (In Matter of Estate of Long) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Matter of Estate of Long, 1979 OK CIV APP 75, 601 P.2d 747, 1979 Okla. Civ. App. LEXIS 127 (Okla. Ct. App. 1979).

Opinion

BOX, Judge:

An appeal by Wanda Long Heard and Juanita Long Vick from an order entered by the district court in the matter of the estate of M. L. Long.

In this action there are two purported wills, two petitions for probate, two will contests, and two groups of relatives aligned against each other. We will refer to one group as the “proponents” and the other as the “contestants.” Mr. Long’s survivors are:

“PROPONENTS”: Imogene Long (widow)
Tara Long Mitchell (daughter)
London Leroy Mitchell (grandson, son of Mrs. Mitchell)
J. Mark Purnell (grandson, son of a predeceased daughter)
“CONTESTANTS”: Wanda Long Heard (daughter)
Juanita Long Vick (daughter)

Mr. Long passed away on May 8, 1977. Unless specified otherwise, all dates in this opinion refer to the year 1977. On May 17 Mrs. Long filed a petition for the probate of a holographic will dated January 24, 1974. Hearing on that petition was set for May 31 before Judge Edwin M. Moore, and notice was mailed to all parties. On May 27 Juanita Vick filed a petition contesting the holographic will and a motion for a continuance. The only appearance at the May 31 hearing was made by Mr. Luke A. Wilkerson, the attorney for the proponents. However, the attorney for the contestants, Mr. John B. Turner, called the court. At the May 31 hearing Judge Moore certified his disqualification, continued the hearing, and transferred the cause to Judge William J. Whistler to be rescheduled and heard. Judge Whistler conducted all matters thereafter.

On June 3 Wanda Heard joined with Juanita Vick in filing a petition for the probate of a later, typewritten will dated August 13, 1974. The hearing on that petition was set for June 21, and notice was mailed to all parties. On June 21 the hearing on the typewritten will was continued until July 6, and notice was again mailed out.

On July 5 all of the proponents except London Leroy Mitchell joined in filing a petition contesting the typewritten will. At the hearing scheduled for July 6, only Mr. Wilkerson appeared. He informed the court that the parties and attorneys had agreed that the hearing on the typewritten will should be continued once more and should be conducted together with the hearing on the holographic will. The court ordered the hearing continued, to be reset with the setting of all other matters by agreement of the parties. On July 26 counsel for the proponents, counsel for the contestants, and the contestant Wanda Heard appeared before the court, and by agree[749]*749ment trial on all matters was set for November 21.

The Journal Entry reflects what took place on the morning of November 21:

AND NOW on this 21st day of November, 1977, at 9:30 o’clock A.M., the above entitled matter comes on for hearing and trial pursuant to the setting of contested matters as set out above, with Imogene Long, Tara Gene Mitchell and Mark Pur-nell appearing by Luke A. Wilkerson, their attorney, with London Leroy Mitchell, appearing in person, and with no other appearances being made. The appearing parties announce ready for trial.
APPEARING counsel then announced that John B. Turner from Tulsa representing Wanda L. Long Heard and Juanita L. Vick had called and left word with the receptionist to the effect that he could not try these matters today; that this was the first and only indication appearing counsel had received from opposing counsel that opposing counsel would not be ready for trial on this date, and that appearing counsel had not agreed to any continuance and objected to any continuance; and that Mr. Turner had requested a call from the Judge.
Mr. Turner was called by the Judge of this Court and concluded thereafter that he should appear and the Court recessed until Mr. Turner could drive from Tulsa. Upon his appearance, he orally moved the Court for a continuance on behalf of his clients, to which opposing counsel objected.
The Court then heard and considered statements and argument of counsel and after being fully advised in the premises, finds that Wanda L. Long Heard was personally present on the 26th day of July, 1977, when these matters were set for trial on this date; that Juanita L. Vick was notified of that fact shortly thereafter; that no written motion for continuance of this hearing has ever been filed nor oral motion made prior to this date; and further finds from all of the statements and argument of counsel that the motion for continuance should be overruled, and it is ordered by the Court that the motion for continuance be and the same is hereby overruled.
THE COURT then directed the parties to proceed with the evidence and by agreement of the parties, evidence was first adduced in behalf of Imogene Long as proponent of the will dated the 24th day of January, 1974, and upon conclusion thereof said proponent rested. The Court then asked for any evidence in behalf of Wanda L. Long Heard or Juanita L. Vick in rebuttal or in support of the instrument propounded by them dated the 13th day of August, 1974. Their counsel stated that they had no evidence or witnesses available at that time and again moved for a continuance until the following day, but the Court has other contested matters set for trial in Claremore, Oklahoma, on the following day and it would be a matter of several weeks before time would be available to hear these matters, and a motion for continuance is again overruled.

The district court then admitted the proponents’ will to probate and denied probate of the contestants’ will.

On November 29 the contestants filed a motion for new trial through their present counsel, Mr. Gary Dean. The motion was set for hearing on January 3, 1978, and notice was mailed to all parties. On the day of the hearing the contestants’ former counsel, Mr. Turner, filed a motion to withdraw, which was granted. The court overruled the contestants’ motion for new trial, and they have lodged this appeal.

On appeal the contestants argue two propositions: (1) that the district court lacked jurisdiction to enter the order appealed from, and (2) that the district court abused its discretion.

Jurisdiction of the District Court

The contestants argue that the district court lacked jurisdiction for two reasons. First, they argue that if a hearing on the probate of a will is continued, it must be continued to a day certain. 58 O.S.1971, § 28 provides:

At the time appointed for the hearing, or at the time to which the hearing may [750]*750have been postponed, the court, unless the parties appear, must require proof that the notice has been given, which being made, the court must hear testimony in proof of the will. If such notice is not proved to have been given, or if from any other cause it is necessary, the hearing may be postponed to a day certain. The appearance in court of parties interested is a waiver of notice.

In Oklahoma district courts have broad powers to continue cases. 12 O.S. 1971, § 667 provides in pertinent part:

The court may, for good cause shown, continue an action at any stage of the proceedings upon terms as may be just; . . ..

Under this general statute, a continuance may be either until a “day certain” or indefinite.

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Cite This Page — Counsel Stack

Bluebook (online)
1979 OK CIV APP 75, 601 P.2d 747, 1979 Okla. Civ. App. LEXIS 127, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-matter-of-estate-of-long-oklacivapp-1979.