Powell v. Morrow

1958 OK 57, 322 P.2d 650

• Court: Supreme Court of Oklahoma
• Decided: March 4, 1958
• Docket: No. 37809
• Status: Published

Opinion

PER CURIAM.

Plaintiff in error filed his petition in the county court of Lincoln county seeking, as a creditor, the appointment of an administrator for the estate of the deceased, Nancy C. Powell. The petition alleged that deceased died intestate on or about January 25, 1954, in Agra, Lincoln County, Oklahoma ; that the “ * * * deceased left estate, real and personal, in said county, and the value and character of said property, so far as known to your petitioner, are as follows, to-wit:” (an undivided interest in a described tract) ; that the estate does not exceed $2500; that Maggie A. Morrow is a daughter of deceased; that 'deceased died intestate and that petitioner is a creditor and entitled to Letters of Administration. Notice of the application was given defendant in error, and she filed objections in which she alleged that deceased owned no interest' in the described property and that she had the prior right to appointment as administrator. The county court denied the application, and plaintiff in error appealed.

The trial in the district court was de novo. Plaintiff in error attempted to testify concerning the property owned by deceased and did introduce in evidence a deed which disclosed that the deceased had conveyed the property described, in the petition, reserving only a life estate. He was then asked:

- “Q. Do you know whether she had. a bank account? A. Yes, she did.”

Thereupon defendant in error objected to any testimony concerning property not specifically pleaded in .the petition for appointment of an administrator. From the colloquy of court and counsel, it appears that the court’s ruling sustaining- the objection was predicated upon the theory that testimony concerning other property was' not embraced within the issues presented by the appeal from the county court. In response to counsel’s question, the court indicated such would be his ruling on any further offer of proof. At the conclusion of the hearing the court sustained the action of the county court and denied the petition. Plaintiff in error appeals and urges that the court erred in its ruling on the admissibility of the evidence concerning assets of the deceased. We agree.

The petition contains all essential allegations necessary to jurisdiction, including the general allegation that the deceased “left estate, real and personal, in said county.” This allegation is sufficient to authorize the proof of any estate of the deceased within the county, and the specific description of one tract of real estate does not limit the inquiry on the existence of assets subject to administration. The statutes do not require that all property be specifically listed. In view of the deed which disclosed that the deceased owned nothing more than a life estate in the described property, proof of other assets was required in order to justify the necessity of an administrator. Otherwise, plaintiff in error would have been confronted by our decisions, In re Carter’s Estate (Morrissey v. Carter), 113 Okl. 182, 240 P. 727, and Wolf v. Gills, 96 Okl. 6, 219 P. 350, holding administration' unnecessary on a creditor’s appiícátíón'’ where there are no assets. Furthermore, the offer was not objectionable as a-change of issues from those presented iir the county court. The testimony would have been within the issues presented by-the’petitic/h, as we have noted; and, in''addition, it’ap-' pears from the “Notice di Appehh’ íh!>ttíé' county court that proof of these assets was presented to the court át the'hearing there!

Even though it appears that plaintiff in! error, as a creditor, is ' p.robably. not the person entitled to appointment as a.dminis-tratqr, in view of the daughter’s request and statutory preference, he isj'heyer&eX less entitled to the appointment’ of ⅞⅛⅛⅞” ministrator for the estate if théfd'áí’S'assets subject to administration.

In view of these considerations^ ⅜⅛ ,ju$g-> ment is reversed with dineqtjcj,ns, ,to, grant plaintiff in error a new trial., -<;m

' WELCH, C. J„ and^g^'pfe LEY, WILLIAMS, LILE, JJ., concur. ,> ¡r. ,⅛,

The Court acknoMédge’S' th&’áid^of' -the Supreme Court Commission" iá 'the-¡píep'atóH tion of this opinibiny- After '"⅞-- feiltSiSW opinion was written1 !b‘y- Cóitobaíssiokélt James H. Neasiethe'eaüsmwías'&ssignedtokí, Justice of this Court for exafíiiña!tioh;,ándi report to the, CoujrL , .Therpaft.ey upoti. rei. port and con§ideratiofn,jifi. cpnferepcej- the foregoing, .ppjnipr^. w_a,sr..gd9pj;ed. ,⅛ ,⅜⅞, court. .