In the Matter of the ESTATE OF Edna L. Rogers FLOWERS, Deceased.
Lois L. Flowers HOOPER, Appellee,
v.
Nola CLINKINGBEARD, Lillian Fowler, Ratha Reynolds and Faye Davis Dattuso, Appellants.
Supreme Court of Oklahoma.
Mary S. Robertson, Steven P. Cole, Oklahoma City, for appellants.
Lawrence W. Parish, Joel D. Butterworth, Oklahoma City, for appellee.
*1148 KAUGER, Justice:
Two issues[1] are presented: 1) whether the appellee, Lois L. Flowers Hooper (Hooper/adopted daughter/pretermitted heir), qualifies as a pretermitted heir under
FACTS
On December 2, 1939, Edna L. Rogers Flowers' (Flowers/adoptive mother/deceased/testatrix) and her husband adopted the appellee, Lois L. Flowers Hooper (Hooper/adopted daughter/pretermitted heir) and Hooper's brother, Don L. Flowers (brother/adopted son). Four years later, Flower's husband petitioned the Okfuskee County Court to declare Hooper a delinquent child. At the hearing on the petition on June 30, 1943, Hooper was found delinquent. Hooper's care and custody were committed to the State. The Flowers relinquished all rights as parents of Hooper; and the court's order provides that they were released from all further liabilities and responsibilities as Hooper's parents.[5] The Flowers made no attempt to terminate their rights to their adoрted son. From *1149 1943 until she reached majority, Hooper remained in foster care. Her support was provided by the State of Oklahoma. Between her placement in foster care and 1982, Hooper testified that she visited with her adoptive mother approximately five times. On at least one of these occasions, Flowers traveled to Tulsa to see Hooper. On another, Hooper claims to have lived with her adoptive mother for a short period of time. There were also alleged telephone contacts.
Flowers executed her will on June 27, 1989. She died on May 14, 1990. On May 21, 1990, Debbie Parker, the named personal representative, filed Flowers' will for probate. The appellants, Nola Clinkingbeard, Lillian Fowler, Ratha Reynolds and Fay Davis Dattuso (collectively, beneficiaries/sisters), are Flowers' sisters. They are all named as devisees and/or beneficiaries in Flowers' will.
On June 1, 1990, Hooper filed a petition to receive Flowers' estate as a pretermitted heir pursuant to
I.
THE PASSAGE OF THE UNIFORM ADOPTION ACT (ADOPTION ACT), 10 O.S. 1991 § 60.1 ET SEQ. IN 1957 ABOLISHED ALL PRE-EXISTING DIFFERENCES BETWEEN ADOPTED AND NATURAL CHILDREN. BECAUSE THE CLEAR LANGUAGE OF 10 O.S. 1991 § 1132 PROVIDES THAT TERMINATION OF PARENTAL RIGHTS DOES NOT AFFECT A CHILD'S RIGHT TO INHERIT FROM ITS PARENT, HOOPER QUALIFIES AS A PRETERMITTED HEIR UNDER 84 O.S. 1991 § 132.
Both parties argue that a primary issue in the cause concerns Hooper's status as an adopted child. Clinkingbeard asserts that the trial court had the authority to sever the parental relationship between an adopted child and his/her adoptive parents in 1943. Hooper insists that the trial court lacked authority to terminate the parent-child relationship absent a second adoption. However, this issue is not dispositive.[8] As *1150 the following discussion demonstrates, even if the parental tie was severed in 1943, Hooper qualifies as a pretermitted heir undеr
In 1957, Oklahoma adopted the Uniform Adoption Act (Adoption Act),
In Conville, we recognized the Legislature's authority to provide for the prospective operation of a statute. We also noted that the Legislature did not exercise that authority in the Adoption Act. Instead, it created a system in which all adopted children are treated similarly for the purposes of inheritance and moved Oklahoma into the modern trend of placing adopted children upon the same footing as natural offspring. We will not today step back, through judicial fiat, to a system which treats those children differently based upon their date of adоption. Were we to do so, it would unravel the law established by judicial decision, and result in the creation of an unconstitutional special law[10] and a denial of equal protection under the law.[11]
The findings of Conville were reinforced in Hines v. First Nat'l Bank & Trust Co.,
"Although the Uniform Adoption Act was not enacted until 1957, and the appellant was adopted in 1950, generally the right of an adopted child to inherit is decided by the law in force at the death of the testatrix/testator not the date of the adoption."
The child in Hines, adopted in 1950 seven years before the enactment of the Adoption Act was found to be entitled to inherit from its lineal ancestors although inheritance *1151 would not have been allowed under the prior law.
Hein v. Hein,
The Adoption Act abolished all pre-existing differences between adopted and natural children.[12] The right of an adopted child to inherit is decided by the law in force at the death of the testatrix/testator not the date of the adoption.[13] Flowers died in 1990, after the Adoption Act became law. Under the Adoption Act, the adoption decree establishes the relationship of natural parent and natural child between the adoptive parent and the adopted child for all purposes including the mutual rights of inheritance and succession. Adopted children may not be eliminated as beneficiaries or as devisees absent a clear and explicit expression to do so.[14]
Title
II.
THE EXISTENCE OF AN ORDER TERMINATING THE TESTATRIX'S PARENTAL RIGHTS IS AN EXTRANEOUS FACT RENDERING THE WILL AMBIGUOUS. PAROL EVIDENCE IS ADMISSIBLE TO ASCERTAIN THE ADOPTIVE MOTHER'S INTENT.
The sisters assert that the existence of the order terminating the parental tie between Flowers and Hooper creates an ambiguity in the will which may be explained *1152 by the introduction of parol evidence. Hooper insists that extrinsic evidence may be used only when there is an ambiguity on the face of the will. We disagree.
Both parties rely upon this Court's pronouncement in Matter of Estate of Crump,
The instant cause is similar to Crump in that the entire estate was given to Flowers' sisters in the will. The cause differs in that therе is an extraneous fact making the will ambiguous the termination order, duly filed in a court of record and admitted by the trial court. The very existence of this order raises questions concerning Flowers' intent. If Flowers thought the termination order ended any relationship between she and Hooper, the failure to mention Hooper in the will may well have been intentional. If she believed that some familial relationship continued to exist, did Flowers' stated intent to disinherit her adopted son and his "kin" coupled with the false statement that she had only an adopted son create an ambiguity within the will?[22] The intention of the testator is controlling; when the Court construes a will, it must ascertain and give effect to the testator's intent, unless the intent attempts to effect what the law forbids.[23] Here, the termination order makes the admission of extrinsic evidence necessary to determine intent. We find that the existence of the termination order is an extraneous fact rendering the testatrix's will ambiguous. Parole evidence is admissible to ascertain the adoptive mother's intent.
CONCLUSION
Whether Hooper's legal relationship as a child was severed by the termination order does not affect her status as a pretermitted heir. The law in existence at Flowers' dеath is controlling. Because Flowers died after the passage of the Uniform Adoption Act (Adoption Act),
CERTIORARI PREVIOUSLY GRANTED; COURT OF APPEALS OPINION VACATED; AFFIRMED IN PART; REVERSED IN PART AND REMANDED.
ALMA WILSON, SUMMERS and WATT, JJ., concur.
HODGES, C.J., concurs specially.
LAVENDER, V.C.J., and SIMMS, HARGRAVE and OPALA JJ., dissent.
HODGES, Chief Justice, concurring specially.
The majority holds that parol evidence is admissible to resolve an ambiguity as to the testator's intention in omitting her adopted daughter from the will. While I concur in the finding of an ambiguity, such a finding is not necessary in order to admit extrinsic evidence to determine the testator's intent in omitting the child.
As I stated in my dissent In re Estate of Glomset,
The purpose and legislative intent of [Okla. Stat. tit. 84, § 132] is to protect children unintentionally omitted from the will. It is not to be construed to alter the testamentary intent of the testator by including children he intentionally excluded from his estate.
There is no language in section 132 which prohibits a court from considering extrinsic evidence to determine the intеnt of the testator in omitting a child from a will.
Because I would admit extrinsic evidence even without a finding of ambiguity in the will, I concur specially.
OPALA, Justice, dissenting.
The court pronounces that the testatrix's adopted daughter qualifies as a pretermitted heir and concludes that her pretermitted-heir status would not be affected even if it were shown that her filial bond was terminated by a 1943 county court order. The court's decision rests on three grounds: (1) the right of an adopted child to inherit is measured by the law in force at the decedent's death and not on the date of adoption, and that law, the Uniform Adoption Act,[1] in force at the time of Flowers' death, abolishes all differences between the rights of adopted and natural children; (2) under the provisions of
I must recede from today's pronouncement. I would hold that (a) the 1943 order's severance of the parental tie is facially void and that (b) neither the facial invalidity of the filial bond's extinguishment nor the testatrix's erroneous belief that her parental bond to the adopted daughter had been terminated serves as an extraneous fact that injects ambiguity into the testamentary exclusion of the adopted daughter.
I
THE ANATOMY OF LITIGATION
Appellee Lois Hooper [Hooper] and her brother were adopted in 1939 by Edna Flowers [Flowers] and her husband.[3] Hooper's *1154 adoptive father later brought a proceeding in the juvenile division of the county court to adjudicate her delinquency status.[4] A 1943 order issued in that proceeding not only determines Hooper to be a delinquent child but also severs her filial bond to the adopted parents. Hooper's adoptive mother died in 1990. Her will recites that she has no natural heirs, but one adopted child, a son (who is Hooper's brother).[5] After Flowers' will was admitted to probate, Hooper moved for adjudication of her status as pretermitted heir. The trial court held that she was the decedent's adopted child and entitled to take as a pretermitted heir. The Court of Appeals affirmed.
II
THE 1943 ORDER OF THE COUNTY COURT SITTING AS A JUVENILE COURT IS FACIALLY VOID PROTANTO TO THE EXTENT THAT IT SEVERS HOOPER'S FILIAL BOND WITH FLOWERS
The now-defunct county courts were courts of limited jurisdiction and could only exercise the power specifically conferred by the then-effective Judicial Article[6] and *1155 by those express statutory provisions which were not inconsistent with our fundamental law.[7] Not until 1965 did our lawmaking body vest in the county court the power to sever parental rights in the cоntext of a juvenile case.[8] The power to terminate by judicial decree the natural bond between parent and child was unknown to the common law. One's status as a parent was regarded by the unwritten law of England as indestructible.[9]
Because in 1943 the county court lacked power to terminate parental rights, it was utterly without cognizance to sever a child's bond in a delinquency proceeding. The 1943 order was hence coram non judice[10] to the extent that it extinguishes Flowers' parental status vis-a-vis Hooper.
When a complete absence of jurisdiction appears on the face of the judgment roll,[11] the court's decision is void and subject to vacation on direct or collateral attack.[12] A decision is deemed void only when the face of the record reveals that at least one of the three critical elements of jurisdiction was absent, i.e., (1) jurisdiction over the parties, (2) jurisdiction over the subject matter or (3) jurisdictional power to pronounce the particular decision that was rendered.[13]
Although in 1943 a county court lacked cognizance to terminate a parental bond, it had the power to set aside its adoption orders or decrees under the terms of
*1156 I would hence hold that, insofar as the 1943 juvenile proceeding order severs Flowers' parental status vis-a-vis her adopted daughter, it is facially dehors the county court's cognizance and hence void on the face of the judgment roll for want of subject-matter jurisdiction[16] as well as of the power to render that decision.[17]
III
THE FACIAL INVALIDITY OF THE PARENTAL RENTAL BOND'S SEVERANCE BY THE 1943 ORDER IS NOT AN EXTRANEOUS FACT THAT MAY INJECT AMBIGUITY INTO FLOWERS' TESTAMENTARY INTENT TO EXCLUDE HOOPER, NOR DOES IT RENDER THAT EXCLUSION INEFFICACIOUS
Because Hooper's filial bond remained intact, the critical question to be answered is whether Flowers' will sufficiently demonstrates her intent to exclude Hooper from any bounty.
From the four corners of the will it is obvious that Flowers did not recognize Hooper as her adopted daughter and had no intention of favoring her with a testamentary gift. An ambiguity may arise from a fact or circumstance extraneous to the will which injects uncertainty as to the testatrix's intent to disinherit one's child or issue.[18]The existence of the 1943 order is not an extraneous fact that brings into question or casts a cloud upon Flowers' intent to disinherit Hooper. Neither is that intent clouded by the absence of a valid parental bond's severance. The statement in Flowers' will that she has but one adopted child while a legal inaccuracy, creates no ambiguity. This recitation though contrary to legal reality does not draw into question testatrix's shown intent to exclude Hooper.
In short, the four corners оf the will unequivocally show that Flowers rejected Hooper as an adopted daughter. I would hence hold that the 1943 termination order's invalidity is not an extraneous fact that injects ambiguity as to the testatrix's intended exclusion of Hooper.
IV
AFTER-ENACTED LEGISLATION
The parental bond of Flowers to Hooper remained unextinguished by the facially void 1943 order. Even if that order had been efficacious, the subsequent enactment of
SUMMARY
The 1943 order's severance of the filial bond is void on the face of the county court's judgment roll in the juvenile delinquency case where it was entered. Neither *1157 the facial invalidity of the bond's severance nor the testatrix's erroneous belief that her parental ties to Hooper had been legally terminated serves as an extraneous fact that injects ambiguity into the testatrix's intent to exclude Hooper from any bounty.
I would hence hold that Hooper is not a pretermitted heir.
NOTES
[1] On appeal, Flowers asserted that the testatrix's stated intent to disinherit her adopted son and his "kin" coupled with the false statеment that she had only one adopted child created an ambiguity within the will allowing the admission of extrinsic evidence. This issue is not presented in the petition for certiorari. The question of whether there are ambiguities relating to other issues present in the will at bar is not before us. Matter of Estate of Crump,
[2] Title
"When any testator omits to provide in his will for any of his children, or for the issue of any deceased child unless it appears that such omission was intеntional, such child, or the issue of such child, must have the same share in the estate of the testator, as if he had died intestate, and succeeds thereto as provided in the preceding section."
[3] Title
"The termination of parental rights terminates the parent-child relationship, including the parent's right to the custody of the child and his right to visit the child, his right to control the child's training and education, the necessity for the parent to consent to the adoption of the child and the parent's right to the earnings of the child, and the parent's right to inherit from or through the child. Provided, that nothing herein shall in any way affect the right of the child to inherit from the parent."
Unlike the result reached in termination proceedings, we note that a finding of the deprived status of a child does not deprive parents of the child of their parental rights except in limited circumstances.
[4] Title
[5] The Okfuskee County court's order provides in pertinent part:
"... IT IS THEREFORE the Order of the Court that said child be, and is hereby adjudged a delinquent minor child and is hereby made a ward of the court.
It is further Ordered that said child be, and she is hereby committed temporarily to the care and custody of the Child Welfare Division of the Department of Public Welfare of the State of Oklahoma until further Order of the Court.
It is further ordered that parents, John L. Flowers, and his wife, Edna Louise Flowers, are hereby released from further liabilities and responsibilities as parents of said child, and the care and custody of said child shall henceforth be given to the Child Welfare Division of the State Welfare Department until further Order of the Court...."
[6] Title
[7] The sister's were prevented from questioning Hooper on specifics as to her relationship with Flowers and other family members. They offered proof that Flowers stated that Hooper was not her daughter after the termination proceedings in 1943; and that Flowers told her sister that her safety deposit box contained papers showing that the adoption had been annulled. The sisters would have presented testimony that an envelope was in Flowers' safety deposit box containing the termination papers and that on the envelope, Flowers had made the following notation:
"Feb 26 1977. Donnie If Louise makes claims to any of my estate this will prove she has no rights to any thing Mom, Edna McDowell"
The envelope also contained a notation in the adoptive father's handwriting providing:
"Louise anul papers."
The sisters would have offered testimony that Flowers stated that the papers proved that Hooper was not an adopted daughter and that she did not have a daughter.
[8] Although we do not consider the issue to be dispositive, we do note that in In re Talley's Estate,
[9] Title
[10] The Okla. Const. art. 5, § 46 provides in pertinent part:
"The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing:
... Authorizing the adoption or legitimation of children;
Changing the law of descent or succession ..."
[11] The Okla. Const. art. 2, § 7 provides:
"No person shall be deprived of life, liberty, or property, without due process of law."
U.S. Const. amend. 5 provides in pertinent part:
"No person shall be ... deprived of life, liberty, or property, without due process of law ..."
U.S. Const. amend. 14, § 1 provides in pertinent part:
"... No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
[12] Hines v. First Nat'l Bank & Trust Co.,
[13] Hines v. First Nat'l Bank & Trust Co., see note 12, supra; Conville v. Bakke, see note 12 at 193, supra.
[14] Hines v. First Nat'l Bank & Trust Co., see note 12 at 1081, supra.
[15] Title
[16] Fuller v. Odom,
[17] Fuller v. Odom, see note 16, supra; Northwest Datsun v. Oklahoma Motor Vehicle Comm'n,
[18] Title
[19] Id.
[20] See also, In re Estate of Sharp,
Notes
[21] Matter of Estate of Severns,
[22] We do not determine this issue. See discussion note 1, supra. See also, Matter of Estate of Hester,
[23] Lomon v. Citizens Nat'l Bank,
[24]
[25] Title
[26] Id.
[27] Matter of Estate of Crump, see note 1 at 1098, supra.
[28] The evidence presented by the sisters appears sufficient to establish Flowers intent that Hooper not share in her estate. However, the evidence was presented as an offer of proof. Because Hooper has not had an opportunity to cross examine the witnesses who would testify on behalf of Flowers and because she has not been allowed to present her own supporting evidence on intent, the cause is remanded for a determination of intent by the trier of fact.
[1]
[2] The pertinent terms of
"The termination of parental rights terminates the parent-child relationship, including the parent's right to the custody of the child and his right to visit the child, his right to control the child's training and education, the necessity for the parent to consent to the adoption of the child and the parent's right to the earnings of the child, and the parent's right to inherit from or through the child. Provided, that nothing herein shall in any way affect the right of the child to inherit from the parent."
[3] The petition for adoption (with cоnsent) and decree of adoption, dated December 2, 1939, are of record in the County Court of Okfuskee County. Transcript of August 21, 1990 [Tr.], petitioner's exhibits 1 and 2.
Adoption was viewed in 1939 as a private contract that required approval by the state. Jones v. Loving, Okl.,
[4] The petition and order, dated June 30, 1943, are of record in the County Court of Okfuskee County, sitting as a Juvenile Court. Tr., defendants' exhibits 1 and 2.
[5] The critical provision of Flowers' will states:
"I am a widow, unmarried, and have no heirs of my body but do have an adopted son, Don L. Flowers. I have grandchildren, children of Don L. Flowers. Because of a terrible injustice done to me by my son, Don L. Flowers, I leave him nothing in this my will and do hereby disinherit him and all of his kin and wife and all of my Grandchildren, namely, ... ." (Emphasis supplied.)
[6] Art. 7, §§ 12-17, Okl. Const. (repealed in 1967, eff. Jan. 13, 1969).
The pertinent terms of Art. 7, § 12, Okl. Const. (repealed in 1967), were:
"The County Court, co-extensive with the county, shall have original jurisdiction in all probate matters, and until otherwise provided by law, shall have concurrent jurisdiction with the District Court in civil cases in any amount not exceeding one thousand dollars, exclusive of interest: Provided, That the County Court shall not have jurisdiction in any action for malicious prosecution, or in any action for divorce or alimony, or in any action against officers for misconduct in office, or in actions for slander or libel, or in actions for the specific performance of contrаcts for the sale of real estate, or in any matter wherein the title or boundaries of land may be in dispute or called in question; nor to order or decree the partition or sale of real estate, not arising under its probate jurisdiction. * * *"
It shall have such appellate jurisdiction of the judgments of justices of the peace in civil and criminal cases as may be provided by law, or in this Constitution. The County Court shall have jurisdiction concurrent with justices of the peace in misdemeanor cases and exclusive jurisdiction in all misdemeanor cases of which justices of the peace have not jurisdictiоn. In the absence of the Judge of the District Court from the county, or in case of his disqualification for any reason, the County Court, or Judge thereof, shall have power to issue writs of injunction in matters about to be brought or pending in the District Court; and to issue writs of injunction, mandamus, and all writs necessary to enforce the jurisdiction of the County Courts; and issue writs of habeas corpus in cases where the offense charged is within the jurisdiction of the County Court or any other court or tribunal inferior to said court... ."
The pertinent terms of Art. 7, § 13, Okl. Const. (repealed in 1967) were:
"The County Court shall have the general jurisdiction of a Probate Court. It shall probate wills, appoint guardians of minors, idiots, lunatics, persons non compos mentis, and common drunkards; grant letters testamentary and of administration, settle accounts of executors, administrators, and guardians; transact all business appertaining to the estates of deceased persons, minors, idiots, lunatics, persons non compos mentis, and common drunkards, including the sale, settlement, partition, and distribution of the estates thereof. * * *"
The quoted provisions of the Judicial Article were repealed in 1967; the enactment of what is now Article 7 was proposed by Laws 1967, p. 698, H.J.R. No. 508, and adopted at an electiоn on July 11, 1967. For county court jurisdiction see Cassina v. Jones, Okl.,
[7] Pre-1969 district courts, on the other hand, were courts of general jurisdiction. Art. 7, § 7, Okl. Const. (repealed in 1967, eff. Jan. 13, 1969); Flick v. Crouch, Okl.,
[8] See 10 O.S.Supp. 1965 §§ 471-475, which were repealed upon the enactment of 10 O.S.Supp. 1968 § 1130-1132. The terms of
[9] Davis v. Davis, Okl.,
[10] The Latin phrase "coram non judice" means "[i]n the presence of a person not a judge. When a suit is brought and determined in a court which has no jurisdiction in the matter, then it is said to be coram non judice, and the judgment is void." BLACK'S LAW DICTIONARY, p. 337 (6th Ed. 1990).
[11] The legal effect and validity of a finally adjudicated case are measured by the four corners of its judgment roll. Mayhue v. Mayhue, Okl.,
[12]
[13] Reeves, supra note 11 at 752, Mayhue, supra note 11 at 893 n. 8; Scoufos, supra note 12 at 723; State ex rel. Commissioners of Land Office v. Keller, Okl.,
[14] The vacation-of-judgments provisions in
[15] The law observes the distinction between excess and absence of jurisdiction over a given subject matter. When the authority to deal with a subject does exist, the manner and extent of the power's exercise, even if patently excessive, will stand, absent a direct attack. Bradley v. Fisher,
[16] The county court, a tribunal of limited jurisdiction, was without power to entertain parental termination proceedings of any kind.
[17] The county court was powerless to terminate parental rights when sitting as a juvenile court.
[18] Crump's Estate v. Freeman, Okl.,
[19] In re Bomgardner, Okl.,
[20] Adoptions could be validly vacated in 1943. The then-effective vacation process availed in county courts. See supra note 14; In re Adoption of Davis, supra note 14; In re Hughes, supra note 14.