MacKey v. Atoka , 34 Okla. 572 ( 1912 )

It is conceded by counsel for both parties that there is but one question in this case for the consideration of this court, and that is: Will an appeal lie from the county court to the district court, on an order dismissing a petition praying for the revocation of the probate of a will? We think an appeal will lie in such case. Section 16 of article 7 of the Constitution of Oklahoma (Williams' Ann. Const. Okla. [201]), reads as follows:

"Sec. 16. Until otherwise provided by law, in all cases arising under the probate jurisdiction of the county court, appeals may be taken from the judgments of the county court to the district court of the county in the same manner as is now provided by the laws of the territory of Oklahoma for appeals from probate court to the district court, and in all cases appealed from the county court to the district court, the cause shall be tried de novo in the district court upon questions of both law and fact."

At the time of the adoption of the Constitution, the law of the territory of Oklahoma governing appeals from the probate court was found in section 317, c. 22, art. 13, Wilson's Rev. Ann. St. 1903 (section 5451, Comp. Laws 1909), which reads as follows:

"An appeal may be taken to the district court from a judgment, decree or order of the county court: (1) Granting, or refusing, or revoking letters testamentary or of administration, or of guardianship. (2) Admitting or refusing to admit, a will to probate. (3) Against or in favor of the validity of a will or revoking the probate thereof. (4) Against or in favor of setting apart property, or making an allowance for a widow or child. (5) Against or in favor of directing the partition, sale or conveyance of real property. (6) Settling an account of an executor, or administrator or guardian. (7) Refusing, allowing or directing the distribution or partition of an estate, or any part thereof or the payment of a debt, claim, legacy or distributive share; or from any other judgment, decree or order of the county court, or of the judge thereof affecting a substantial right."

Counsel for defendants in error relies on subdivision 3 of section 5451, supra, as supporting his contention, and citesEstate of Sbarboro, Deceased, 70 Cal. 147, 11 P. 563, in support thereof. But a comparison of section 963 of the Code of Civil Procedure of California, from whence subdivision 3,supra, came, with section 5457, Comp. Laws 1909, discloses a dissimilarity that renders the contention of counsel untenable. Section 963 of the California Code of Civil Procedure, prior to its amendment in 1901, provided by the third subdivision thereof for appeals from the probate court "from a judgment or order granting or refusing to grant, revoking or refusing to revoke, letters testamentary, or of administration or of guardianship." The amendment of 1901 added the words "or refusing to revoke" probate of will. Under the original provision of the California statute, no appeal would lie, while under the amendment all question of right of appeal is removed. But section 963 of the California Code of Civil Procedure and the California decisions thereunder do not control on this subject in this state, for the reason that out statute regulating appeals is much broader than the California statute, and provides for appeals in subdivision 8 thereof "from any other judgment, decree, or order of the probate court, or the judge thereof, affecting a substantial right." If the allegations of the petition for the revocation of the will, as filed by Mackey, are true, then the ruling of the county court in dismissing the petition undoubtedly deprives him of a substantial right, and the appeal should not have been dismissed. Appeals are favored by the law, and should not be denied any person when he brings himself within the provisions of the statute.

For the error in dismissing the appeal from the county court, the judgment of the district court of Latimer county should be reversed, and the cause remanded, with instructions to reinstate the action, and to proceed with the hearing in conformity with the views herein expressed.

By the Court: It is so ordered.