In Re Mo-Se-Che-He's Estate , 202 Okla. 382 ( 1949 )

JOHNSON, J.

Mo-se-che-he died about June, 1934. Thereafter the county court of Osage county appointed W. C. Tucker and Leah Duncan joint administrators of her estate. They acted as joint administrators until the death of W. C. Tucker on March 22, 1947. Thereafter, certain parties claiming to be heirs of Mo-se-che-he petitioned the county court for the appointment of H. P. White as co-administrator to succeed W. C. Tucker, deceased. Albert Fierro, otherwise known as Jack Rogers, surviving husband of deceased, and Leah Duncan, the surviving administra-trix, filed a plea to the jurisdiction of the county court, asserting “that; Leah Duncan is new the duly qualified and acting administratrix .of said estate, and this court is without jurisdiction to issue Letters of Administration to any other person.”

Tne plea to jurisdiction was denied, and the county court entered an order appointing H. P. White co-administrator as successor to said W. C. Tucker. Leah Duncan appealed to the district court from this order. Thereafter, H. P. White filed a. motion in the district court to dismiss the appeal from the county court upon the grounds: (1) “The appellant, Leah Duncan, has filed no appeal bond in the county court or in the district court”; (2) “That said appeal, or attempted appeal, is net m the ‘interest of,’ or for the benefit of the estate of said Mo-se-che-he, deceased, but is detrimental to the interests of said estate. . .”; and (3) “That written notice of appeal was not served on the Superintendent of the Osage Indian Agency, a jurisdictional requirement.”

Leah Duncan responded to said motion to dismiss, alleging among .other things that due service was had upon the Superintendent of the Indian Agency and that acknowledgment thereof in writing was endorsed on said notice by said superintendent.

Upon hearing the said motion and response thereto, the district court found and held that Leah Duncan served a copy of her notice of appeal on the Superintendent of the Osage Indian Agency; it further found that no appeal bond was filed by appellant but that appellant contends that she had a right to appeal from the order complained of without giving bond other than that given as administratrix in qualifying as such. The district court further found: “that the appeal, or attempted appeal . . . was not taken in the interest of the estate, but wholly in the interest personally of the appellant.” The district court then held: “that the appellate jurisdiction of this court has not been invoked, and that this court is without jurisdiction to try this case on appeal, and the appeal, or attempted appeal, is hereby dismissed at the cost of the appellant.”

After unsuccessful motion for a new trial, Leah Duncan appeals to this court by petition in error and case-made.

Defendant in error filed a motion to dismiss the appeal in this court upon the grounds that the appeal is in the personal interest of the appellant only and is not in the interest of the estate or in order to preserve or protect the estate; that no appeal bond was given or filed for want of which the district court acquired no jurisdiction, and in turn this court acquired no jurisdiction; and “that the appeal is frivolous and without merit and should be dismissed for that reason alone.”

October 26, 1948, this court, by order, denied the motion to dismiss the appeal. Defendant in error had renewed the motion, and both sides had briefed the question, and upon further consideration we think the motion to dismiss should be denied.

It is conceded that no separate appeal bond was filed in the county court or in the district court. Plaintiff in error contends that the original bond given by the two original joint administrators is still effective as to her, and that since the matter was heard in the county court she has given an amended bond which provides:

“It is further provided that this bond is executed in compliance with Sec. 174, Title 58, of Oklahoma Statutes of 1941, and shall be considered amendatory of a joint bond executed by W. C. Tucker and Leah Duncan as administrators of the estate of Mo-se-che-he, deceased, on the 8th day of October, 1935, and this bond as amendatory of the bond executed on the 8th day of October, 1935, shall constitute a separate bond of the principal as provided by Sec. 174, Title 58 of Oklahoma Statutes of 1934, and the obligation hereof shall relate back to the date of the execution of said bond on the 8th day of October, 1935, and become effective as of said date of the 8th day of October, 1935, as though this bond had been executed on that date.”

The bond as administratrix filed by Leah Duncan was sufficient to enable her to qualify as administratrix, and two questions remain for determination. First, does the county court have jurisdiction where one of two administrators to whom letters of administration are granted dies, leaving one administrator (administratrix) surviving, to appoint a successor to such deceased administrator? and, second, if such power does not exist in the county court, may the surviving administrator appeal to the district court from an order of the county court making such appointment without giving an appeal bond as provided for under the provisions of 58 O.S.A. §740 and 58 O.S.A. §985.

Any power the county courts of this state have is governed by statute. 58 O. S. A. §1 provides:

“The county court has probate jurisdiction, and the judge thereof power, which must be exercised in the cases and in the manner prescribed by statute; . . .

“2. To grant letters testamentary of administration and of guardianship, and to revoke the same.”

We have statutory authority for the appointment of more than one administrator, but no specific statutory provision exists authorizing the appointment of another or successor administrator in a case such as here. 58 O. S. A. §220 provides:

“In case any one of several executors or administrators, to whom letters are granted, dies, becomes lunatic, is convicted of an infamous crime or otherwise becomes incapable of executing the trust, or in case the letters testamentary or of administration are revoked or annulled, with respect to any one executor or administrator, the remaining executor or administrator must proceed to complete the execution of the will or administration.”

58 O. S. A. §221 provides:

“If all such executors or administrators die or become incapable, or the power and authority of all of them are revoked, the proper court must issue letters of administration, with the will annexed or otherwise, to the widow or next in kin, or others, in the same order and manner as is directed in relation to original letters of administration. The administrators so appointed must give bond in the like penalty, with like sureties and conditions as hereinbefore required of administrators, and shall have the like power and authority.”

Obviously, this is not a case prescribed by statute in which any power is conferred upon the county court. Section 220, supra, provides: “The remaining administrator ‘must’ . . . complete . . . the administration.” Section 221, supra, provides: “If ‘all’ such . . . administrators die . . . the proper court must issue letters of administration . . . in the same order and manner as . . . original letters of administration. The administrator so appointed must give bond . . . as . . . required of administrators and shall have the like power and authority.” The county court, once having appointed an administrator or administrators of an estate, must thereafter proceed “in the cases and in the manner prescribed by the statute.”

By force of the statute, section 220, supra, Leah Duncan, upon the death of V*. C. Tucker, became the sole ad-ministratrix of the estate. Until the office became vacant by her resignation or otherwise, the county court was without power to make a second grant of letters of administration. 21 Am. Jur. 450, §127.

The office of administrator here not being vacant, the county court was without power to appoint another administrator, and its action in so doing was erroneous. An appeal from such order, the effect of which is to place the one illegally appointed in possession of the assets of the estate, is an appeal in the interest of the estate.

Reversed and remanded, with directions to enter an order vacating the appointment of H. P. White as co-administrator and sustaining the plea of plaintiff in error.

WELCH, CORN, LUTTRELL, and HALLEY, JJ., concur. DAVISON, C.J., and GIBSON and O’NEAL, JJ., dissent.