Wyche v. Wyche , 1961 Okla. LEXIS 439 ( 1961 )

DAVISON, Justice

(dissenting).

I am unable to agree with the majority-opinion. Plaintiff in error, being the wife of deceased, was entitled to letters oí administration of his estate under the provisions of Title 58 O.S. § 122. Under this section of the statute it was compulsory on the part of the court to appoint her when she applied for the letters, unless she was precluded from such appointment by reason of the exceptions contained in Title 58 O.S. § 126.

The above is true regardless of the fact that the majority opinion refers to the fact of the pending divorce action, the ante-nuptial agreement, together with the other supporting arguments.

The judgment of the trial court simply stated that “the issues are adjudged against Emma Doris Wyche.” If this judgment was based on the fact that because of the antenuptial agreement or the pending divorce case or the other matters enumerated in the majority opinion, it was erroneous.

If the judgment was based on actual evidence pertaining to the incompetency of the widow, I am of the opinion that such judgment would be against the clear weight of the evidence.

A number of disinterested witnesses testified that Mrs. Wyche was intelligent, agreeable, competent and a good business woman. A majority of the witnesses who testified against Mrs. Wyche had a pecuniary interest in the estate.

Mr. Lemonds, who was appointed the administrator of the estate, stated on cross-examination that the estate would not be difficult to administer. That the ranch was in the Soil Bank and that the ranch could be handled by Mrs. Wyche.

The other property consisted of rental property which had fixed tenants where the rents could be easily collected.

The burden of proof was on the defendant in error to show that plaintiff in error was incompetent to serve as administrator. In my opinion he failed to meet this burden.

I, therefore, respectfully dissent.