Estate of Walker, Matter of

Estate of Walker, Matter of
1985 OK 2
695 P.2d 1
Case Number: 58977, 60873, 61209
Decided: 01/15/1985
Supreme Court of Oklahoma

IN THE MATTER OF THE ESTATE OF LAWRENCE WALKER, DECEASED. GLADYS NADINE WALKER, APPELLEE,
v.
DONALD RAY WALKER AND LOWELL WAYNE WALKER, APPELLANTS.

Appeal from the District Court of Blaine County; Larry D. Smith, Trial Judge.

¶0 Appellee, widow of deceased, presented application to the trial court for removal of appellants, children of deceased, as co-executors of deceased's estate. Upon hearing, trial court found cause for removal of both appellants and entered judgment to that effect. Appellants challenge this ruling.

Miller, Dollarhide, Dawson & Shaw by John W. Gile, Oklahoma City, for appellee.

Ross N. Johnson, Oklahoma City, for appellants.

LAVENDER, Justice:

¶1 Three separate petitions in error have been filed on behalf of appellants in this case.

¶2 The sole issue remaining for consideration in this appeal deals with the propriety of the order of the trial court removing appellants as co-executors of the estate of Lawrence Walker.

¶3 Appellants, the two sons of Lawrence Walker, had been named as co-executors in their father's will. This will had been admitted to probate on Lawrence Walker's death,

¶4 The authorities cited by appellants, in support of their argument that the trial court's order revoking their letters and removing them as co-executors was erroneous, deal solely with the question of the initial issuance of letters testamentary to those named in a deceased's will.

¶5 Title 58 O.S. 1981 § 231 , provides:

Any executor or administrator may, at any time, by writing, filed in the district court, resign his appointment, having first settled his account and delivered up all the estate to the person whom the court shall appoint to receive the same. If, however, by reason of any delays in such settlement and delivering up of the estate, or for any other cause, the circumstances of the estate or the rights of those interested therein require it, the court may at any time before the settlement of accounts and delivering up of the estate is completed, revoke the letters of such executor or administrator, and appoint in his stead an administrator, either special or general, in the same manner as directed in relation to original letters of administration. The liability of the outgoing executor or administrator, or of the sureties on his bond, shall not be in any manner discharged, released or affected by such appointment or resignation.

¶6 The terms of this statute place the removal of an executor at the discretion of the trial court on a showing that the circumstances of the estate or the rights of these interested require it.

¶7 The evidence before the trial court, at the time the order for removal was entered,

¶8 As to the second co-executor, the evidence supporting his removal by the trial court is mainly based on the fact that he took no action to remedy the situations which resulted from the conflicts caused by his brother's insolvency and indebtedness to the estate. However, the evidence also established that the lawsuits being brought were initiated without seeking guidance or approval of the trial court in which the estate was admitted to probate.

¶9 From this evidence the trial court determined that the removal of both co-executors was required to protect the estate. Our review of the record does not establish that the decision of the trial court was against the weight of the evidence. The order of the trial court is accordingly affirmed.

¶10 SIMMS, C.J., DOOLIN, V.C.J., and HODGES, HARGRAVE, WILSON and KAUGER, JJ., concur.

¶11 OPALA, J., concurs in part, dissents in part.

¶12 BARNES, J., dissents.

Footnotes:

1 These petitions in error have been given case numbers 58,977, 60,873 and 61,209.

2 See 12 O.S. 1981, Chap. 15, App. 2, Rule 1.28.

3 See McCorkle v. Great Atlantic Ins. Co., 637 P.2d 583 (Okla. 1981).

4 Corrugated Culvert Co. v. Akers Tp., 52 Okl. 612, 153 P. 623 (1915); 12 O.S. 1981, Chap. 15, App. 1, Rule 1.

5 Lawrence Walker died on March 20, 1982.

6 In re Estate of Pipkin, 348 P.2d 330 (Okla. 1959); Hadwiger v. Melkus, 338 P.2d 1098, (Okla. 1959); 58 O.S. 1981 §§ 101 , 102 and 107.

7 See 58 O.S. 1981 §§ 234 and 545, which mandate removal and revocation by the trial court on the finding of certain circumstances.

8 Batchelder v. Knecttle, 179 Okl. 484, 66 P.2d 919 (1937).

9 See In re Estates of Kjorvestad, 304 N.W.2d 83 (N.D. 1981) (trial court in probate proceedings does not operate in a vacuum, and may take judicial notice of prior proceedings in the same case.)

10 See Estate of Bonin, 457 A.2d 1123, 1125 (Me. 1983).

11 See In re Estate of Quinlan, 441 Pa. 266, 273 A.2d 340 (1971). This case was decided under Pennsylvania statute setting out grounds for removal of executor, including insolvency. However, the reasoning of the Pennsylvania Legislature in including insolvency as a ground for removal would also support the trial court's exercise of discretion in removing a co-executor in Oklahoma on the same ground. That is, insolvency of an executor may prejudice the administration of an estate.

12 Fountain v. Cabe, 242 Ga. 787, 251 S.E.2d 529 (1979).