IN THE MATTER OF THE ESTATE OF MARGARET J. STOLBA: DANIEL W. LOWTHER, Personal Representative of the Estate of Margaret J. Stolba, Deceased, Appellant,
MARK S. STOLBA, Appellee.
Mandate Issued: 08/07/2019
FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA HONORABLE
KURT G. GLASSCO, TRIAL JUDGE
Abraham, Louis Abraham III P.C., Tulsa, Oklahoma, for
H. Ferris, Blake M. Feamster, MOYERS MARTIN, LLP, Tulsa,
Oklahoma, for Appellee
THOMAS THORNBRUGH, JUDGE
Daniel W. Lowther, as personal representative of the estate
of Margaret J. Stolba, deceased (Decedent), appeals a
decision by the district court finding that a restriction on
the alienation of property in the Decedent's will was
invalid, and distributing the subject property to
Decedent's will was admitted for probate in December
2012. It was evidently composed by Decedent without legal
assistance. Among its provisions was this:
The home stead will remain in trust, Not to be sold or split.
All four of you have got to get along. Work it out, you
should be able to have fun doing things there. Everyone
should behave themselves. (sic)
January 2017, probate was still open, and one of
Decedent's sons, Mark S. Stolba, filed an application to
distribute the remaining property in the form of the
homestead  because either 1) the
"trust" failed for lack of required elements, or 2)
the homestead provision created an unenforceable perpetuity
or restriction on alienation.
In October 2017, the district court entered a decree of
distribution, distributing the homestead to Decedent's
four children, per the rules of intestate succession.
Representative Daniel Lowther filed a motion for new trial,
which was denied. He now appeals.
Probate proceedings are of equitable cognizance. In re
Estate of Holcomb, 2002 OK 90, ¶ 8, 63 P.3d 9. We
will not disturb the trial court's decision unless it is
"found to be clearly contrary to the weight of the
evidence or to some governing principle of law." In
re Estate of Maheras, 1995 OK 40, ¶ 7, 897 P.2d
268. This matter involves questions of statutory
interpretation. We are required to review questions of law,
such as the construction of statutes, under a de
novo standard of review. In re Estate of
Jackson, 2008 OK 83, ¶ 9, 194 P.3d 1269.
Appellant states the following questions on appeal, which we
1. Whether the trial court erred in granting Appellee's
application for distribution in that Appellee did not contest
the validity of the admitted will within 90 days and by the
operation of 58 O.S. § 67, the probate is conclusive and
the trial court did not have jurisdiction to hear and decide
the application for distribution.
2. Whether the trial court erred in granting Appellee's
application for distribution in that he did not contest the
validity of the admitted will within 90 days and by the
operation of 58 O.S. § 67, the application for
distribution was time barred.
3. Whether the trial court erred in granting Appellee's
application for distribution in that the application was not
a sworn petition as required by 58 O.S. § 61.4.
4. Whether the trial court erred in granting Appellee's
application for distribution in that no citations were served
on the executors, legatees, devisees and heirs within the
state as required by 58 O.S. § 62.
5. Whether the trial court erred in granting Appellee's
application for distribution in that the order admitting the
will to probate establishes the will as valid and was never
6. Whether the trial court erred in granting Appellee's
application for distribution in that the testamentary trust
in the admitted will contained a power to sell, exchange or
otherwise convey the real or personal property vested in
Appellant, and by the operation of 60 O.S. § 175.47 the
Rule Against ...