Yeldell v. Moore

1954 OK 260, 275 P.2d 281, 1954 Okla. LEXIS 770

• Court: Supreme Court of Oklahoma
• Decided: October 5, 1954
• Docket: 35756
• Status: Published

Opinions

WELCH, Justice.

The plaintiff prayed judgment against the defendants that she be declared the owner of an undivided one-half interest in certain described real estate and that her title thereto be quieted against any claims of the defendants.

A demurrer to the plaintiff’s petition was sustained and, with announcement of the plaintiff that she would not plead further, judgment was entered for the dismissal of the suit.

In appeal, the plaintiff contends the court erred in sustaining the demurrer to the plaintiff’s petition.

The plaintiff relies upon statements in the petition of a substance as follow;s: That the plaintiff is the sister and next of kin of Louella Moore, nee Walk, deceased, and formerly a sister-in-law of J. P. Moore, deceased; that the described real estate was purchased by J. P. Moore and Louella Moore, husband and wife, out of their separate funds and thereupon each owned an interest in the real estate as their separate property; that the legal title to the property was taken in the name of J. P. Moore, but both J. P. Moore and Louella Moore had acknowledged that Louella Moore owned an undivided one-half interest in the property as her separate property; that the said parties agreed between themselves and expressed their mutual intention that in the event of the death of Louella Moore the plaintiff would be the owner of an undivided one-half interest in the property, that Louella Moore executed an holographic will in terms devising ' an interest in the property to the plaintiff, which will was delivered to J. P. Moore; that after the death of Louella Moore the said will was either lost or destroyed by J. P. Moore, and said will has not been probated; that after the death of Louella Moore the said J. P. Moore told the plaintiff of an agreement between himself and Louella Moore that plaintiff was to have her one-half interest in the property and that it was the intention of the said J. P. Moore to see to it that the terms of his said agreement with Louella Moore were carried out; that thereafter J. P. Moore made a will of terms devising to the plaintiff an undivided one-half interest in the property; that thereafter and at a time then unknown to the plaintiff, the said J. P. Moore revoked the aforesaid will; that after the death of J. P. Moore the plaintiff learned that he had left a will in terms devising all right, title and interest in the aforesaid property to the parties herein named as the defendants; that the said last mentioned will is now a subject of probate proceedings in county court.

The plaintiff asserts the foregoing state of facts in pleading show that J. P. Moore held an undivided one-half interest in the real estate in trust for the plaintiff at the time of his death, and accordingly a cause of action is stated in favor of the plaintiff and against the defendants, claimants-of the property under the will of J. P. Moore.

The gravamen of the plaintiff’s suit was to quiet title to an interest in the real estate described in her petition, or more particularly, to establish that an undivided one-half interest in the real estate was held in trust for the plaintiff by J. P. Moore until his death, and to quiet the plaintiff’s title to said one-half interest against the devisees-of J. P. Moore.

Assuming, as urged by the plaintiff, that the facts in pleading are sufficient to show that at one time J. P. Moore, the record owner of the property, was holding a one-half interest in the property in trust for his wife, Louella Moore, and as her separate property, such is immaterial unless there are facts in pleading to show that such trust estate passed to the plaintiff.

It is elementary that to state a cause of action to quiet title to real estate the petition must recite facts to show the plaintiff is the owner of some right, title, or interest in the property. The weakness or nature of the claim of others, who are named as defendants, is a matter of secondary consideration.

With J. P. Moore and Louella Moore the joint owners of the real estate in full agreement that the plaintiff should have an interest in the land, such agreement would not constitute a valid conveyance relating to the real estate or any interest therein, or create a trust in the land in favor of the plaintiff in the absence of a writing signed by the said J. P. Moore and Louella Moore. 16 O.S. 1951 § 4. Nor would their expressed intention of a disposition of the property to take effect upon their death be effectual unless properly declared in writing.

“It is an established rule that intended disposition of property of a testamentary character, and not to take effect in the testator’s lifetime, is inoperative, unless declared in writing in conformity with statutory regulations regarding devises and bequests.” Louthan v. Johnson, 111 Okl. 170, 239 P. 173.

In the plaintiff’s petition certain -unprobated wills are mentioned, but until such wills are duly admitted to probate the plaintiff can have no rights thereunder to enforce. In the instant case the district court is without power to admit the wills to probate and until the said wills are adr mitted to probate they are wholly ineffectual to show title to real estate. See, Smith v. Reneau, 188 Okl. 629, 112 P.2d 160.

The exclusive original jurisdiction of probate matters is in the county court and the jurisdiction of the district court in such matters is appellate only. Okl. Constitution, Art. 7, §§ 12, 13; 58 O.S. 1951 § 1.

We find no facts in pleading to show that plaintiff is the owner of any right, title or interest in the lands, the subject of the plaintiff’s suit. Accordingly, we hold that the demurrer to the plaintiff’s petition was properly sustained.

The judgment for dismissal of the action is affirmed.

. HALLEY, C. J., JOHNSON, V. C. J., and CORN, and DAVISON, JJ., concur. ARNOLD, WILLIAMS and BLACKBIRD, JJ., dissent.