11 P.2d 170 | Okla. | 1932
This is an appeal by Minnie B. Widener from a judgment of the district court of Payne county affirming a judgment and order of the county court refusing to set aside and vacate an order approving the final account of the administrator of the estate of James Widener, deceased. Appellant is the surviving widow of deceased.
This controversy has grown out of a claim made by appellant for a widow's allowance. The county court originally denied her application for an allowance. She appealed from this order to the district court and was allowed the sum of $125 per month for the first 12 months following the death of her husband, and $100 per month thereafter until the estate was finally settled. The heirs of deceased appealed from this judgment to the Supreme Court, which appeal resulted in an affirmance of the judgment. The opinion was filed by this court February 17, 1925 (In re Widener's Estate,
Pending the latter appeal, the county court rendered judgment settling the account of the administrator and allowed appellant the sum of $5,562.92 as a widow's allowance. This amount was paid by the administrator June 9, 1925. The county court also made a final order distributing the estate to the heirs of deceased, except as to the certificate of deposit involved in the appeal. On May 7, 1928, appellant filed her motion in the county court to vacate and set aside the decree of distribution in so far as it distributed the real estate of deceased, and prayed that she be allowed an additional sum of $100 a month on the widow's allowance from June 9, 1925, until the final disposition of the estate. The court denied the motion. An appeal was taken by her to the district court, which court likewise denied her motion. To reverse that judgment, she has appealed to this court.
It is urged by her that the county court was without jurisdiction to settle the accounts of the administrator and make a final order of distribution while the appeal was pending between her and the heirs of deceased as to the ownership of the certificate of deposit, and was without jurisdiction to proceed until the mandate of the Supreme Court affirming the judgment of the district court settling the question of the widow's allowance was spread of record in the district court. She appeared at the hearing on the settlement of the final account of the administrator and claimed the allowance. No question was raised by her as to the jurisdiction of the court at that time. She accepted the benefits of the order and cannot now be heard to complain. She urges, in her reply brief, that estoppel was not pleaded. A sufficient answer to this contention is that no objection was made to the introduction of the evidence on the theory that it was not pleaded and the court had all the facts before it at the time it entered judgment. The mere fact that an appeal was pending on a collateral matter between the heirs and appellant would not deprive the county court of jurisdiction to settle the estate subject to final disposition of the appeal and make a final distribution thereof.
Appellant was a second wife, and, under her marriage settlement agreement, she had no interest in the estate of her deceased husband. She claimed that the $1,400 represented by the certificate of deposit was a gift to her. The sole question presented by that appeal was whether the $1,400 was a gift to her from her husband, or was the property of the deceased husband at his death, and entitled to be listed as part of his estate. Widener v. Miller,
The judgment is affirmed.
LESTER, C. J., CLARK, V. C. J., and RILEY, SWINDALL, ANDREWS, and KORNEGAY, JJ., concur. CULLISON, and McNEILL, JJ., absent.
