18 P.2d 1084 | Okla. | 1933
This is an appeal from a judgment of the district court of Woods county, Okla., by the plaintiffs in error, who were the plaintiffs in that court, that judgment *52 being in favor of the defendants in error, who were the defendants in that court.
The land involved in this action is the same and the issues presented on this appeal are substantially the same as those in Re Appeal of Sims' Estate, this day decided,
All the proceedings had in the administration of the estate of J.H. Sims, deceased, are involved herein and substantially the same evidence was presented in this case as in the case of In re J.H. Sims' Estate, supra. A restatement of the facts here is unnecessary. There is no order consolidating the two cases, but as the questions involved are almost identical, reference is here made to the statement of facts in that case, and the two cases may well be considered together.
In that case all the proceedings had in the administration of J.H. Sims' estate were held to be regular and in conformity with law, save and except that part of the decree of distribution made in the county court which purported to decree title in fee simple to the lands involved in Mag Hyatt or Maggie Sims and her heirs forever. Under the record we so hold in this case.
In that case we held that the decree of distribution was void on its face. We so hold here. Since that decree was void on its face, proceedings herein may be maintained. However, the plaintiffs are not entitled to the relief prayed for, for they are not the owners of all of the real estate claimed by them herein. They are the owners of only that portion of the real estate which this court directed to be distributed to them in Re J.H. Sims' Estate, supra. It will require a determination by the county court in the probate proceedings to determine what that interest is.
The judgment of the trial court is reversed and the cause is remanded to that court, with directions to grant the plaintiffs a new trial and to proceed further not inconsistent herewith.
CULLISON, V. C. J., and SWINDALL, OSBORN, BAYLESS, BUSBY, and WELCH, JJ., concur. RILEY, C. J., dissents. McNEILL, J., absent.
Note. — See under (3) annotation in 1 A. L. R. 1245; 11 R. G. L. 35. (5) R. G. L. Perm. Supp. p. 2402. (9) annotation in 22 A. L. R. 439; 68 A. L. R. 507; 9 R. C. L. 601; R. C. L. Perm. Supp. p. 2513.