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Bebout v. Ewell

Supreme Court of Oklahoma

March 21, 2017

JOHN RUSSELL BEBOUT and JAMES WILLIAM BEBOUT, Plaintiffs/Appellees,
v.
FRANK D. EWELL and JACK B. EWELL as Co-Personal Representatives of the ESTATE OF BETTY B. EWELL, DECEASED, and WILLIAM ELTON KUYKENDALL, JR., Defendants/Appellants.

         CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION II, ON APPEAL FROM THE DISTRICT COURT OF CANADIAN COUNTY, STATE OF OKLAHOMA, HONORABLE GARY E. MILLER

          A. Gabriel Bass & Colin R. Barrett, Bass Law, Oklahoma City, OK, for Plaintiffs/Appellees

          Douglas D. Wilguess & Heather A. Garrett, Wilguess & Garrett, PLLC, Oklahoma City, OK, for Defendants/Appellants

          Michael W. Thom, Michael W. Thom, Attorney at Law, PC, Bethany, OK, for Defendants/Appellants

          Kraettli Q. Epperson, Mee Mee Hoge & Epperson, Oklahoma City, OK, for Amicus Curiae

          GURICH, V.C.J.

         ¶0 In 1981, an ancillary probate proceeding was filed in the District Court of Canadian County in the Estate of R.V. Bebout to probate mineral interests owned by R.V. Bebout in Canadian County at the time of his death. The Final Order in the Estate of R.V. Bebout, filed in 1982, distributed his mineral interests to his daughter and granddaughter in equal shares pursuant to the terms of his will. In 2014, R.V. Bebout's grandsons, filed this action in Canadian County, alleging that the mineral interest distribution in the Estate of R.V. Bebout was void to the extent it failed to distribute the mineral interests one-quarter each to his grandsons who were pretermitted heirs under the will. Citing this Court's decision in Booth v. McKnight, 2003 OK 49, 70 P.3d 855, the District Court agreed with the grandsons and found the Final Order issued in 1982 in the Estate of R.V. Bebout was void on its face for lack of proper notice to the grandsons. The Court of Civil Appeals affirmed. We conclude that notice to the grandsons was constitutionally sufficient, and thus, the Final Order was not void for lack of proper notice. Grandsons' challenge to the Final Order more than thirty years later is untimely.

         Facts & Procedural History

         ¶1 The facts of this case are largely undisputed. R.V. Bebout died testate on March 30, 1980, as a resident of Tarrant County, Texas. His Last Will and Testament, dated March 8, 1977, was admitted in the Probate Court of Tarrant County, Texas, in the Estate of R.V. Bebout, Deceased, Case No. 80-622. At the time of his death, R.V. Bebout owned mineral interests in Canadian County, Oklahoma. On September 30, 1981, an ancillary Petition for Probate of Foreign Will was filed in the District Court of Canadian County in In the Matter of the Estate of R.V. Bebout, Deceased, Case No. P-81-137.

         ¶2 R.V. Bebout's will provided that his estate was to be distributed in trust to his wife, if she survived him. In the event his wife predeceased him, which she did, his will provided that one-half of his estate was to be distributed to his daughter, Betty Ewell, and one-half to his granddaughter, Betsy Kuykendall. The will made no mention of R.V. Bebout's son, Russell Bebout, who had predeceased him, [1] or R.V. Bebout's grandsons, John Bebout and James Bebout (Grandsons).

         ¶3 An Amended Petition for Probate of Foreign Will was filed on March 4, 1982, in the Canadian County ancillary probate action. Both the original Petition and the Amended Petition set forth the heirs, legatees, and devisees of R.V. Bebout as: Betty Ewell, Daughter; Betsy Kuykendall, Granddaughter; John Bebout, Grandson; James Bebout, Grandson. On April 1, 1982, the Court entered an Order Admitting Will to Probate and issued Letters of Administration to Jerome S. Sepkowitz, appointing him as Administrator of the Estate.

         ¶4 On September 20, 1982, the Administrator filed the Annual or Final Account of Administrator or Executor and Petition for Distribution (Final Account). The Final Account identified the heirs, legatees, and devisees of R.V. Bebout as those same individuals listed in the Petition and Amended Petition. The Final Account identified the mineral interests owned by R.V. Bebout in Canadian County as the assets to be distributed and requested that such be distributed one-half to Betty Ewell and one-half to Betsy Kuykendall, leaving no distribution to the Grandsons.

         ¶5 On that same day, the court entered an Order for Hearing of Final Account and for Distribution and Discharge, setting a hearing for October 14, 1982. The Notice for Hearing of Final Account and for Distribution and Discharge (Notice) was timely mailed to R.V. Bebout's heirs, including his Grandsons. The Notice did not include a copy of the Final Account, but referenced both the Final Account, which had previously been filed with the court, and the Petition "with will annexed, " which had also been previously filed with the court. [2] On October 4, 1982, Proof of Publication of the Notice was filed of record, and on October 14, 1982, the Administrator filed a second Affidavit of Mailing Notices, again confirming that on September 20, 1982, he had mailed Notice to all of R.V. Bebout's heirs. The final hearing was held October 14, 1982. The Grandsons did not appear at the final hearing. On that same day, the court issued its Final Order Allowing Account Decree of Distribution and Discharge (Final Order). The Final Order distributed R.V. Bebout's mineral interests according to the Final Account: one-half to Betty Ewell and one-half to Betsy Kuykendall.

         ¶6 R.V. Bebout's granddaughter, Betsy Kuykendall, died testate on October 7, 1997, and an ancillary probate was administered in the District Court of Canadian County in PB-2013-29. The Final Order in the Betsy Kuykendall probate was issued October 8, 2013, and distributed her one-half interest in R.V. Bebout's minerals to her husband, William Kuykendall, Jr. R.V. Bebout's daughter, Betty Ewell, died testate on November 13, 2013. An ancillary probate was filed on January 17, 2014, in the District Court of Canadian County in PB-2014-6 and remains pending.

         ¶7 On June 25, 2014, some thirty-two years after the issuance of the Final Order in the R.V. Bebout ancillary probate, the Grandsons filed this proceeding in the District Court of Canadian County against Frank D. Ewell and Jack B. Ewell, Co-Personal Representatives of the Estate of Betty Ewell, and William Kuykendall, Jr. (Defendants). The Petition alleged that the mineral interest distribution in the R.V. Bebout Final Order was void on the face of the judgment roll to the extent it failed to distribute the mineral interests one-quarter each to the Grandsons who were pretermitted heirs. The Petition sought to quiet title to the mineral interests in the Grandsons one-quarter each as against any interest claimed by the Defendants through either the R.V. Bebout Final Order or the Betsy Kuykendall Final Order.

         ¶8 The District Court found that the R.V. Bebout Final Order was void for lack of required notice to the Grandsons, citing this Court's decision in Booth v. McKnight, 2003 OK 49, 70 P.3d 855. The Defendants appealed, and the Court of Civil Appeals affirmed. The Defendants timely petitioned this Court for certiorari review, and a writ of certiorari was granted on October 3, 2016.

         Standard of Review

         ¶9 When the material facts of a case are undisputed, an order sustaining summary judgment in favor of a litigant presents solely a legal matter. Sheffer v. Carolina Forge Co., 2013 OK 48, ¶ 10, 306 P.3d 544, 547-48. Questions of law mandate a de novo standard of review, which affords this Court with ...


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