The probate court in Tulsa County ruled that a child was disinherited by a pour over will and a trust.  In September 1997, Ralph and Nancy Murano created the “Murano Revocable Trust” (Trust). The Trust made Ralph and Nancy Murano trustees, and dedicated the benefits of the Trust to themselves during their lifetimes. It appointed new trustees upon the deaths of Ralph and Nancy, and provided for shares to nine beneficiaries, including plaintiff Jeromy Murano (Murano). At the same time, Nancy Murano made a will (Will) bequeathing all residue of her estate to the Trust.

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In January 2013, after Ralph Murano’s death, Nancy Murano made amendments to the Trust, deleting the existing paragraph on beneficiaries, and adding a new paragraph listing only four beneficiaries. Jeromy Murano was not among these amended beneficiaries. Nancy Murano was ill with multiple sclerosis at the time of the amendment, and having considerable difficulty writing. She signed the amendment with a ‘X’ and her initials, although she did later manage to sign a notarized document requesting her attorney to implement the Trust amendment.
After Nancy Murano’s death, Jeromy Murano challenged this Trust amendment, claiming her mark and initials were legally insufficient to amend the Trust. He later added theories that Nancy Murano was not competent at the time of the amendment, and that he was an “omitted child” or pretermitted heir in the Will, and entitled to a share of the Trust property pursuant to 84 O.S. § 132, and In re Estate of Richardson, 2002 OK CIV APP 69, 50 P.3d 584. In November 2014, the probate court issued a declaratory judgment finding that: 1) Murano was not a pretermitted heir, and 2) Nancy Murano’s amendments to the Trust were legally effective to remove Murano as a beneficiary.

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The Court of Appeals held in this published opinion as follows:

This appeal presents two questions of law. The first is whether the holding of In re Estate of Richardson, 2002 OK CIV APP 69,50 P.3d 584, requires property to be distributed to Murano as an “omitted child’ despite the Trust amendments.

Title 84 O.S.2011 § 132 provides:
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 intentional, 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.
In Richardson, the plaintiff sought an omitted child’s share from the estate of his deceased father. The executor moved for summary judgment on the basis that decedent intentionally omitted plaintiff in an amendment to a pour-over trust executed after decedent’s Will. Id., ¶ 1. The trial court granted summary judgment, but Division I of this court reversed, holding that. . . the provisions of a pour-over trust, which have been amended after a will is executed, are not incorporated by reference in the will so that the amended provisions of the trust constitute competent evidence of the testator’s intent to omit an heir as required by Oklahoma’s pretermitted heir statute.
Richardson thus held that an amendment to a trust mentioned in a will is not effective if it removes a child as a beneficiary of the trust unless the will is similarly amended to show a clear intent to omit the child from any distribution.
Richardson appears, however, to be in opposition to Welch v. Crow, 2009 OK 20, ¶ 5, 206 P.3d 599. In that case, an inter vivostrust conveyed property to two children, Jean Ann Morgan and Mary K. Crow. The associated will recognized that decedent hadfour children: Jean Ann Morgan, Mary K. Crow, Jerry Welch, and Martin Welch. Martin Welch was deceased at the time of the will’s execution. There was no language expressly omitting Martin Welch or his children from the will. Martin Welch’s children therefore sued to obtain a share of the trust property as pretermitted heirs.
The Supreme Court reiterated that:
Our recent opinion in In re Estate of Jackson, 2008 OK 83, 194 P.3d 1269, is dispositive of the question. There, we held that § 132 “unambiguously pertains only to wills. It does not encompass a situation where a child is omitted from a trust, and we decline to extend its reach to revocable inter vivos trusts.” In the instant cause, the grandchildren are not entitled to a statutory share in the Trust.
The Supreme Court concluded that only the named beneficiaries of the trust should receive a distribution.
We find no authority indicating that the Supreme Court explicitly disavowed the rule of Richardson in these later cases. The question, therefore, is whether this case falls under the rule of Richardson (child omitted from will) or Welch (child omitted from trust). We find a crucial difference between this case and Richardson. In Richardson, the will did not refer to the son by name or by class. In this case, the will did refer to Murano as a child, and stated that the residue of the estate was to be distributed pursuant to the Trust agreement. The facts in this case are very close to those in Welch, and we find the result ofWelch applicable in this case. We also find this result logical based on broader principles.
A will that bequeaths the contents of a revocable trust in which the settlor is both trustee and beneficiary bequeaths nothing until the settlor’s death. Hence, the intent of the testator is determined by the contents and provisions of the trust at the time it becomes irrevocable. Nancy Murano’s intent shown in the Will was clearly and unambiguously to bequest to her heirs only what she gave them in the Trust instrument, which was subject to change at any time before her death. Murano was not omitted from the Will, but was bequeathed whatever the Trust provided for him. In this case it provided nothing. We find no principle that a worthless bequest renders the recipient an “omitted child.” Rather, we find it logical that making a knowingly worthless bequest shows a clear intent to disinherit.
The second question of law is whether the amendment to the Trust was valid, because it was signed with an ‘X’ and the settlor’s initials. Murano argues that the Trust was a document involving or affecting the transfer of real property subject to 16 O.S. 2011 § 34, which provides that: When real estate is conveyed or encumbered by an instrument in writing by a person who cannot write his or her name, the person shall execute the same by a mark, and the person’s name shall be written near the mark by one of two persons who saw the mark made, who shall write their names on the instrument as witnesses. In case the instrument is acknowledged, then the officer taking the acknowledgment shall, in addition to the other necessary recitals in the acknowledgment, state that the grantor executed the instrument, by inserting in the form of acknowledgment provided in Section 33 of this title by individuals after the words “foregoing instrument” the words “by the person’s mark, in my presence and in the presence of __________ and __________ as witnesses”.
The Trust amendments in this case, signed with a ‘X’ and initials, were witnessed by others, but not attested to in the form required by 12 O.S. § 34. The threshold question, therefore, is whether § 34 applies in this case, i.e., was real estate “conveyed or encumbered” by the Trust amendments? Analyzing reported cases pursuant to § 34, we find no case applying this statute to a trust amendment.1 We must therefore turn to first principles. The Trust at issue was revocable during the life of the settlor and created no immediate or vested future right in the beneficiaries. Inherently, the amendment “conveyed” no property from Nancy Murano to the beneficiaries under those conditions. Nor did the amendments create any encumbrance upon the real estate that did not previously exist.2 We find that the Trust amendment in this case was not a “conveyance or encumbrance” of real property, and was not subject to § 34.

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CONCLUSION: This case is teaching that you need an experienced attorney helping you with your estate planning.

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An experienced attorney, such as Brent D. Coldiron, would have made it clear that there was an intent to disinherit in both the will and the trust.  Why depend on a court to end up with the right decision.  Let your attorney make sure it happens.  Brent D. Coldiron knows the law.  He knows what to do.  You can reach Brent D. Coldiron at (405) 478-5655 or 737-2244.  His offices are at 1800 East Memorial Road, Suite 106, Oklahoma City and 2801 Parklawn Drive, Suite 503, Midwest City.

Oklahoma probate law defines undue influence as that which compels the testator to do that which is against his will, from fear, the desire of peace, or some feeling which he is unable to resist. The influence must be undue, in order to vitiate the will, because influences of one kind or another surround every rational being, and operate necessarily in determining one’s course of conduct under every relation of life. Within due and reasonable limits such influence affords no ground of legal objection.

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Undue influence necessary to set aside a will must be a present restraint, fraud or undue influence, operating upon the testator’s mind in the very act of making the will, and affecting its execution or the disposition it makes, as the undue influence must dominate testator at the time of making the will and contemporaneous threats have this effect.

Influence based on affection for members of a family is not undue influence, as such influence is natural and proper and in a different class from that which a stranger may obtain.

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Undue influence, such as will invalidate a will, must be something which destroys the free agency of the testator at the time when the instrument is made, and which, in effect, substitutes the will of another for that of the testator. It is not sufficient that the testator was influenced by the beneficiaries in the ordinary affairs of life, or that he was surrounded by them and in confidential relations with them at the time of its execution. Mere general influence, not brought to bear on the testamentary act, is not undue influence; but in order to constitute undue influence, it must be used directly to procure the will, and must amount to coercion destroying the free agency of the testator. Mere suspicion that undue influence was brought to bear is not sufficient to justify the setting aside of the will.

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Based on the above summary of how an Oklahoma probate court will consider evidence of undue influence, it requires good proof.  I once had a case where we were able to prove undue influence.  An attorney-in-fact sequestered the will maker in her home.  Then locked the relatives out.  And had the will signed under those circumstances.  The court set the will aside for undue influence.

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Brent Coldiron is a practicing attorney will offices in Edmond/Oklahoma City and Midwest City.  Give him a call if you have questions.  His number is (405) 478-5655 or 737-2244.

Any person who makes a will in Oklahoma is legally presumed to have been legally competent to make the will.

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The will stated as follows:

“Know All Men by These Presents: That I, Emanuel J. Kerchner of Kiowa, in the county of Barber, in the state of Kansas, being in good health (or ill health) and of sound and disposing mind and memory, do make and publish this, my last will and testament, hereby revoking all former wills by me made; and as to my worldly estate and all the property, real, personal or mixed, of which I shall die seized and possessed, or to which I shall be entitled at the time of my decease, I devise, bequeath and dispose thereof in the manner following, to wit:

“First: That all my funeral expenses, and any expense occurring from sickness, be paid in full out of the proceeds of my estate.

“Second: To my grandson, Harry Burns, I bequeath the school land, being the northeast quarter of section thirty-six (36), township twenty-nine (29), range thirteen (13) in the county of Woods, Oklahoma; Provided that he assume and pay all assessments due the government as it becomes due.

“Third: To my son, Nick K. Kerchner, I bequeath one promissory note, the amount being $ 1,470.50, dated April 10, 1917; also one promissory note, being in amount $ 500, dated May 25th, 1918; also any bills I may have paid out for improvement on his school land in Harper county, Okla.

“Fourth: To my daughter, Ninnie Burns, I bequeath the sum of ten dollars ($ 10.00).

“Fifth: To my grandson, Harry Burns, I bequeath the southeast quarter of twenty-five (25), township twenty-nine (29), range thirteen (13) in the county of Woods, Okla., provided, that he pays Nick K. Kerchner the sum of eleven hundred and seventy-three dollars and 50-100 (1,173.50), the same to be paid in two equal payments of five hundred eighty-six and 75-100 dollars ($ 586.75) the first payment one year after my decease, and the second one year thereafter.

“Sixth: All moneys or bonds that I may have are to be equally divided with my son Nick K. Kerchner and my grandson, Harry Burns.

“And lastly, I do nominate and appoint L. E. McClure to be the executor of this, my last will and testament.

“In Witness Whereof. I, the said Emanuel J. Kerchner, have to this, my last will and testament, subscribed my name, this 17th day of April, A. D. 1920.

“Emanuel J. Kerchner, Testator.

“Signed. Published and Declared, by the said Emanuel J. Kerchner as his last will and testament, in the presence of us, who, at his request, and in his presence, and in the presence of each other, have subscribed our names as witnesses thereto; and at the time we know the said Emanuel J. Kerchner to be of sound and disposing mind and memory.

“Witness Our Hands, the day and date above given.

“Z. H. Tibbetts,

“W. H. Harris,

“Witnesses.”

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The question before the probate court was the maker of the will at the time he executed his last will and testament competent to make the will?

The probate court considered the habit and capacity of the will maker to actively transact his ordinary business and make his own contracts.  The appellant court determined that the actual time and place to be when the will was signed was the point in time in which a will maker must be competent.

The opinion of the will maker’s doctor as to his mental condition would be considered by the court.

The probate court said that legal competency to make a will consisted of the following:

“The testator must have sufficient memory to comprehend the conditions of his property and his relations to the objects of his bounty, but the fact that the memory of an old person has failed somewhat does not of itself invalidate his will, as occasional lapse of memory, mere decay or feebleness of memory, or absent-mindedness, ought not to invalidate a will, unless amounting, under our general rule, to a mental incapacity to collect the particulars essential to a just testamentary disposition.  It is a general rule that testamentary capacity consists in the ability to understand the nature of his property, the natural objects of his bounty, and the nature of the testamentary act, and it is sometimes said that it is sufficient if he knows of what his estate consists and the persons to whom he desires to give it.  This rule does not mean that all these things must be known by the testator minutely, but if he knows them in a general way, this is enough. ”

 

The probate court is not to hold being old against anyone who makes a will.  The mere fact that a person is aged person in no way operates against the validity of the will.

A will going to probate carries this strong presumption.  There is a presumption of sanity that the person who made the will was legally competent.  It is for everyone who makes a will.  The burden of proving unsoundness of mind in a will contest rests on the contestant.

 

The court held: An examination of all the testimony convinces us beyond serious doubt that at the time he made this will, Emanuel Kerchner was competent and in possession of his mental faculties to such an extent that he knew well the property which he possessed, the indebtedness due him, his relation to his kindred, his duty toward such kindred. That he knew the diposition which he desired to make of his property and that the will which he executed expressed his intentions.

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The following probate case illustrates how an adopted child was not entitled to inherit an Osage Indian Headright.   This is the dispositive wording in the will: “I hereby give, devise and bequeath the income from the Osage headrights or shares in the mineral interests of the Osage Tribe of Indians owned by me at the time of my death to my two grandchildren, Thos. Rogers and Nancy Rogers Big Elk, during their lives; provided that each of said grandchildren shall receive one half of said income at the time the distribution of said income is payable: and provided further that if either of said grandchildren shall die leaving no surviving child or children then said entire income shall be paid to the surviving grandchild during the life of the said survivor: and provided further that if said grandchildren or either of them should die leaving a child or children surviving them said mineral interests or headrights from which said deceased grandchild or either of them was receiving the income shall immediately vest in said child or children, share and share alike, and in the child or children of any deceased child of my said grandchildren by right of representation: and provided further that if both of said grandchildren shall die without children then said headright shall vest in the heirs of my body, or, in case of the death of any of the heirs of my body, then to the living issue of such deceased heirs by right of representation.”  The adopted child was adopted by a deceased grandchild of the deceased.  The adopted child wanted to step into the grandchild’s shoes and inherit from the grandmother.  The “heirs of my body” language indicated that there was not an intent to include the adopted child.

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To avoid problems like this good attorneys usually include a definition of children which will include adopted children.  Sometimes definitions are limited to children adopted before the age of 21, or earlier.

Good probate, will and trust attorneys may also include in the definition of children whether the child is born inside or outside of wedlock. Sometimes wording is used which intentionally omits any child or person who claims to be a pretermitted (forgotten or unknown) child or descendant of a child who may make a claim to the estate.

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Ware’s estate is an interesting case.

 

IN RE WARE’S ESTATE
1958 OK 263
348 P.2d 176
Case Number: 37784
Decided: 11/05/1958
Supreme Court of Oklahoma

Cite as: 1958 OK 263, 348 P.2d 176
IN THE MATTER OF THE ESTATE OF NANCY WARE, DECEASED. BILLIE JOE YOUNG FLETCHER ROGERS, PLAINTIFF IN ERROR,
v.
NANCY ROGERS RECTOR, INDIVIDUALLY, AND AS ADMINISTRATRIX OF THE ESTATE OF NANCY WARE, DECEASED, DEFENDANTS IN ERROR.

Syllabus by the Court.

¶0 Where a member of the Osage Tribe of Indians willed the income from the Osage Indian headrights she owned, to her two grandchildren, with the provision in paragraph ‘III’ of her will that upon the death of either ‘* * * leaving a child or children surviving * * *’, his or her share ‘* * * shall immediately vest in said child or children, share and share alike, and in the child or children of any deceased child of any said grandchildren by right of representation * * *’, in view of said paragraph, the character of the property involved, and the circumstances in evidence, the judgment of the trial court holding that a certain adopted child of the testatrix’ deceased grandchild was not a beneficiary under said provision, was neither contrary to law nor to the evidence.

Appeal from the District Court of Osage County; Jesse J. Worten, Judge.

In proceedings by the administratrix with the will annexed of the estate of Nancy Ware, deceased Osage Indian allottee, in connection with disposition of said estate, the county court determined that Billie Joe Young Fletcher Rogers, an adopted child of the testatrix’ deceased grandchild, was not entitled to any interest in the headrights left by testatrix. After Rogers had appealed to the district court, which court’s judgment was also against him, he appealed to this court. Affirmed.

Shoemake & Briggs, Pawhuska, Gordon L. Patten, Tulsa, for plaintiff in error.

F.W. Files, Pawhuska, for defendants in error.

BLACKBIRD, Justice.

¶1 This appeal involves a determination of the proper devolution of one-half of the 1 2/3 Osage Indian headrights owned, at the time of her death, by one Nancy Ware, who was enrolled opposite Roll No. 1808, and received an allotment, as a member of the Osage Tribe of Indians. Said allottee died in January, 1933, while a resident of Osage County, and leaving a will executed during the same month of the previous year, but not approved in the Office of the Secretary of the Interior until June 27, 1933.

¶2 Under the terms of said will, and the decree of the county court entered June 11, 1934, in the proceedings to admit same to probate, the testatrix’ grandchildren, Nancy Rogers Big Elk and Thomas Rogers, were paid the income from said Osage headrights in proportions of one-half to each, until the death of the latter in December, 1953, which necessitated a determination as to what disposition was to be made, in accordance with testatrix’ will, of that portion of the headrights from which he had been receiving income. The matter was rendered controversial by the fact that, in 1942, the said Thomas Rogers had adopted, as his son, Billie Joe Young Fletcher Rogers, the son (by a former marriage) of his wife, Grace, whom he married in 1937, more than four years after the testatrix’ death.

¶3 The portion of the testatrix’ will governing the devolution of the headrights involved herein is paragraph “III”, which reads as follows:

“I hereby give, devise and bequeath the income from the Osage headrights or shares in the mineral interests of the Osage Tribe of Indians owned by me at the time of my death to my two grandchildren, Thos. Rogers and Nancy Rogers Big Elk, during their lives; provided that each of said grandchildren shall receive one half of said income at the time the distribution of said income is payable: and provided further that if either of said grandchildren shall die leaving no surviving child or children then said entire income shall be paid to the surviving grandchild during the life of the said survivor: and provided further that if said grandchildren or either of them should die leaving a child or children surviving them said mineral interests or headrights from which said deceased grandchild or either of them was receiving the income shall immediately vest in said child or children, share and share alike, and in the child or children of any deceased child of my said grandchildren by right of representation: and provided further that if both of said grandchildren shall die without children then said headright shall vest in the heirs of my body, or, in case of the death of any of the heirs of my body, then to the living issue of such deceased heirs by right of representation.”

¶4 After her appointment, in 1956, as administratrix with the will annexed of the estate of the testatrix, her deceased grandmother, Nancy Rogers, now Rector, who is one and the same as “Nancy Rogers Big Elk” and is the “surviving grandchild” within the nomenclature of the above quoted will, filed in the probate proceedings pertaining to said estate, a pleading entitled: “Final Account, Petition To Construe Will of Deceased and Judicially Determine the Death of Thos. Rogers, also known as `Thomas L. Rogers, Jr.,’ and For a Decree of Distribution.”

¶5 At the hearing held on said pleading in the county court, the pivotal question was: Whether Billie Joe Young Fletcher Rogers, being an adopted, rather than a natural, child of the testatrix’ deceased grandchild, Thomas Rogers, was a “child” of a grandchild of the testatrix within the meaning of that term, and equivalent expressions, if any, used in the above quoted third paragraph of her will.

¶6 The county court determined the question against the adopted boy, Billie Rogers, and decreed that the income from the headright interest (including that which had accrued since the death of Thomas Rogers) “be paid to Nancy Rogers Rector during her lifetime.” Upon appeal to, and trial de novo by, the district court, herein referred to as the trial court, said court entered a judgment, in accordance with findings of fact and conclusions of law, which, in every material respect, concurred with the county court’s decree. Thereafter, Billie Rogers, hereinafter referred to as appellant, perfected the present appeal to this court. Nancy Rogers Rector appearing here in her capacity as an individual, as well as administratrix, will be hereinafter referred to as appellee.

¶7 In his argument for reversal, the appellant attacks both the trial court’s findings of fact and conclusions of law, but treats particularly of said court’s first three conclusions of law, which were in words and figures as follows:

“1. That the adoption of a child under the Oklahoma law only fixes the status of such adopted child insofar as his adoptive parent is concerned and confers upon such adopted child only the legal consequence of the adopted child for the purpose of inheritance or other rights of such child from his adoptive parent.

“2. That under the law of Oklahoma the right of an adopted child to succeed to property of kindred of the adoptive parent, the claimant, under Title 10 O.S.A. [§§] 51 and 52 , is expressly excluded from taking property limited to the body, or bodies, of the parent by adoption and from lineal or collateral kindred of such adoptive parent by right of representation.

“3. That title 25 O.S.A., Section 7 , has been construed by the Supreme Court of the State of Oklahoma in the case of In re Captain’s Estate, in which the Court said:

“`Since this section refers to the adopted person as a “child” and Section 27, O.S. 1931, 25 Okl.St.Ann. Sec. 7 , states that, “the term children includes children by birth and by adoption”, it is apparent that said section was intended to negative the possible right of the child to inherit from the kindred of the adoptive parents “by right of representation”.'”

¶8 Appellant attributes the claimed errors in the trial court’s judgment to his failure to recognize that the case of In re Captain’s Estate, 191 Okl. 463, 130 P.2d 1002, (which so obviously influenced said judgment) dealt with an intestacy situation where statutes are usually the final arbiter of the descent and distribution, rather than a testacy situation like the present one, where the intention of the testator governs. Pursuing this premise, appellant attempts (without evidence of the testatrix’ intention, other than the words of the will itself) to show that by omitting to preface the terms “child” and “children” with the word “natural” in her will, the testatrix understood said terms as including adopted children (by statute) in Oklahoma, and that her use of other terms such as “living issue” and “heirs of my body” (which appellant concedes do not include adopted children) shows that she recognized the distinction between such terms.

¶9 Generally speaking, of course, statutes do not govern, or even influence, the matter of who may be beneficiaries of estates under wills, as they do the matter of who shall be beneficiaries of estates in intestate succession. Accordingly, a testator or testatrix may, by will, include among the beneficiaries of his or her estate, persons who have neither a natural nor legal claim thereon; and, when such intention is clear, it matters not that such persons would have no claim to any part of the estate under the laws of succession or descent and distribution. It is only where the words of the will leave the testator’s intention in doubt, that such statutes, or those that restrict the devolution of such estates, or those bearing upon the relationship of persons such as the testatrix and the claimant, may be entitled to consideration. But, said statutes are considered – not because they control the devolution of the estate directly – but because they may furnish a clue to arriving at the testator’s intention, in view of the presumption, usually indulged, that he was cognizant of their existence and efficacy, when the will was drafted and executed. Thus, it is only to the extent that such statutes, federal and state, are applicable to appellant’s relationship to the testatrix, or to the devolution of her estate, that they may constitute any foundation, in reason or logic, for his contention that the word “child”, as used in the testatrix’ will, includes him. And, in determining such statutes’ applicability, we may look to cases involving intestate estates, as well as those involving testate estates, where the statutory construction there announced is a general one and does not hinge upon testacy or intestacy. Clearly, In re Captain’s Estate, supra, is such a case. In our opinion in that case we said (at page 1005 of 130 P.2d) that Tit. 10, O.S. 1951, sec. 51 (O.S. 1931, sec. 1711) “relates itself only to the general relationship * * * between parent and child (and) other than the right of inheritance.” Following this statement in that opinion, we demonstrated why decisions from other jurisdictions upholding an adopted child’s right to inherit from kindred of his adoptive parents, are neither controlling nor persuasive. We there noted in sec. 52, (O.S. 1931, sec. 1712) of the same Title, reference to the word “child”, which, under Tit. 25, O.S. 1951, sec. 7 , may mean an adopted child, as well as a natural child, but concluded that “said section (52) was intended to negative the possible right of the child to inherit from the kindred of the adoptive parents `by right of representation’.” In reaching this conclusion we there said (at page 1006 of 130 P.2d):

“The position taken by the appellant that the provision in Section 1712 denying the adopted child the right to inherit from the lineal or collateral kindred of the adoptive parents by right of representation constitutes implied legislative authority for such child to inherit directly in his own right as a natural child from such lineal or collateral kindred, is untenable. This section deals exclusively with the personal rights and duties existing between the adopted child and the adoptive parents. It grants full inheritance rights to the child so far as the property of the parents is concerned, but denies the child the right to take property limited to their bodies and the right to participate as the parents’ representative in any of the estates of their kindred by blood, thus evincing a legislative intent and purpose to keep the property of the family, other than that of the adoptive parents, in the family, and away from the adopted child. Nowhere is there an express provision that the child shall inherit from any one other than the adoptive parents.” (Emphasis ours).

¶10 Here, if there were any doubt from the provisions of paragraph III of the will as a whole, including those containing the terms “heirs of my body” and “right of representation”, that it was the intention of the testatrix to keep the devolution of her headrights in her own blood line, we think it is readily dispelled upon consideration of the inheritance restrictions placed by Congress upon such interests in Osage tribal property. In this connection, see the Act of Congress of June 28, 1906 (34 Stat. 539), as amended by the Act of Congress of March 3, 1921 (41 Stat. 1249-1251), the Act of Congress of April 18, 1912 (37 Stat. 86-88) cited in the Secretary of the Interior’s endorsed approval on the will in question, as authority therefor; and, more particularly Section 7 of the Act of Congress of February 27, 1925 (43 Stat. 1008-11), as amended by the Act of Congress of September 1, 1950 (64 Stat. 572) dealt with in Ware v. Beach, Okl., 322 P.2d 635. The ultimate purpose of the last two Congressional Acts was to prevent heirs, except those of Indian blood, from inheriting from persons having one-half or more Indian blood of the Osage Tribe of Indians “any right, title, or interest to any restricted lands, moneys, or mineral interests of the Osage Tribe; * * *”. Upon inquiry by this court, counsel say that there is no question of federal inheritance restrictions in this case. Assuming, without deciding, that Billie Rogers meets the qualifications imposed by Congress on the inheritance of Osage Indian headrights, the question then arises: How could those who drafted and executed the will in question be certain that any child the testatrix’ grandchild might adopt would meet such qualifications? Therefore, is it not reasonable to assume that in making testamentary disposition of such restricted Indian property it would be done in such manner as to leave no question as to its efficacy? And, would not keeping headrights in the testatrix’ blood line be the best way of being certain that said property would be inherited by heirs who could establish Indian blood (under the Federal Acts, supra) by their enrollment record or by the enrollment record of a lineal Indian ancestor? We think all of these questions must be answered in the affirmative, and, in view of the presumption that the testatrix knew of the inheritance restrictions on such property, such answers furnish substantial insight as to what she intended in her will’s reference to a child or children of a grandchild or grandchildren. Upon consideration of the foregoing, and, in the absence of any evidence to the contrary, it can only be concluded that such references were intended to exclude adopted children. It therefore follows, that the judgment of the trial court must be, and is hereby affirmed.

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The following will was filed for probate. The trial court found that the testator was incompetent. The Supreme Court reversed the trial court and found that the testator was competent.

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Here is an excerpt from the opinion of the court: “An examination of all this testimony convinces us beyond serious doubt that at the time he made this will, Emanuel Kerchner was competent and in possession of his mental faculties to such an extent that he knew well the property which he possessed, the indebtedness due him, his relation to his kindred, his duty toward such kindred. That he knew the diposition which he desired to make of his property and that the will which he executed expressed his intentions. We are particularly impressed with that testimony of George L. Cook, who drew the will; of Dr. W. H. Harris, one of the attesting witnesses, and of L. E. McClure, the executor. It appears that upon the recommendation of a friend, who was in no wise interested, the deceased went to Cook and stated to him that he desired to have his will drawn. Cook had known Emanuel Kerchner for a number of years, but had not been connected with him in any way, and as far as the testimony goes had not attended to any business for him. Emanuel Kerchner came into Cook’s office on the 17th day of April, 1920, by himself. It does not appear that any person came to town with him. He stated plainly and with clearness to Mr. Cook the property which he had and the disposition which he desired to make of it by will. He acted and talked normally, talked with Cook about his relations. Cook took down with pencil the instructions given him as to the provisions of the will, read them over to Kerchner and asked him if they met his approval. He said they were exactly what he wanted; stated that he held a note against Nick Kerchner and desired to give him that note; that Harry Burns had treated him more kindly than his own son. Cook then drew the will on the typewriter, read it over to Kerchner. It was satisfactory. Dr. W. H. Harris, the physician who knew Kerchner well, and had treated him for many years, was called as one witness to the will, and Dr. Tibbets as another witness. Both of those men had offices in the same building where the will was drawn. They were requested by Kerchner to witness the will when he had stated to them that it was his last will and testament. They did so, and Kerchner then took the will and went away.

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¶17 Dr. W. H. Harris, one of the attesting witnesses, had been acquainted with Kerchner for 25 years. Had seen his frequently during that time and had acted as his physician. He testified that his mental condition did not change from the time he first became acquainted with him up to the time he saw him a short time before his death, and Dr. Harris attended him in his last illness. L. E. McClure, the executor and a banker, had known Kerchner since 1912. Kerchner had kept his papers in that bank. Kerchner brought his will to McClure in the bank on the date it was executed, told him that it was his will and he wanted it put away for safekeeping. McClure put the will in Kerchner’s safety box with the rest of his papers and after Kerchner’s death broke the seal on the envelope, brought the will to Alva and turned it over to the county judge. McClure was acquainted with Kerchner in a business way. Deceased Kerchner had kept an account at McClure’s bank for years and always transacted his own business without the assistance of any one. When he brought the will to McClure there was no one with him, He transacted business with the bank just the same afterwards as before the will was deposited there. McClure says that the deceased was entirely capable of carrying on his business, understood the nature of all business transactions, and the value and extent of his property, and that he noticed no difference in the deceased from the time he first became acquainted with him until the last time he saw him, shortly before his death.

¶18 The substance of this testimony as to the normal condition of the mind of Emanuel Kerchner is sustained by the testimony of many witnesses, all of whom had thorough opportunity to judge of his condition during many years and up to the time of the making of his will and up to the time of his death. All this testimony has convinced us that the testator, Kerchner, was at the time of making this will of sound mind, and the testimony introduced by the protestant does not, in our judgment, when considered in its most favorable aspects, reach the point where it raises in our mind any serious doubt as to the competency of the testator. We therefore find that the judgment of the trial court upon this branch of the case was not sustained by sufficient evidence and was against the great weight of the evidence.”

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The will in question is as follows:

“Know All Men by These Presents: That I, Emanuel J. Kerchner of Kiowa, in the county of Barber, in the state of Kansas, being in good health (or ill health) and of sound and disposing mind and memory, do make and publish this, my last will and testament, hereby revoking all former wills by me made; and as to my worldly estate and all the property, real, personal or mixed, of which I shall die seized and possessed, or to which I shall be entitled at the time of my decease, I devise, bequeath and dispose thereof in the manner following, to wit:

“First: That all my funeral expenses, and any expense occurring from sickness, be paid in full out of the proceeds of my estate.

“Second: To my grandson, Harry Burns, I bequeath the school land, being the northeast quarter of section thirty-six (36), township twenty-nine (29), range thirteen (13) in the county of Woods, Oklahoma; Provided that he assume and pay all assessments due the government as it becomes due.

“Third: To my son, Nick K. Kerchner, I bequeath one promissory note, the amount being
$1,470.50, dated April 10, 1917; also one promissory note, being in amount $ 500, dated May 25th, 1918; also any bills I may have paid out for improvement on his school land in Harper county, Okla.

“Fourth: To my daughter, Ninnie Burns, I bequeath the sum of ten dollars ($ 10.00).

“Fifth: To my grandson, Harry Burns, I bequeath the southeast quarter of twenty-five (25), township twenty-nine (29), range thirteen (13) in the county of Woods, Okla., provided, that he pays Nick K. Kerchner the sum of eleven hundred and seventy-three dollars and 50-100 (1,173.50), the same to be paid in two equal payments of five hundred eighty-six and 75-100 dollars ($ 586.75) the first payment one year after my decease, and the second one year thereafter.

“Sixth: All moneys or bonds that I may have are to be equally divided with my son Nick K. Kerchner and my grandson, Harry Burns.

“And lastly, I do nominate and appoint L. E. McClure to be the executor of this, my last will and testament.

“In Witness Whereof. I, the said Emanuel J. Kerchner, have to this, my last will and testament, subscribed my name…”

The Supreme Court reversed the trial court and found that the testator was competent. It is important that the appellant court noted the important badges of competency of an individual to make a will. These are: (1) he knew well the property which he possessed; (2) the indebtedness due him; (3) his relation to his kindred; (4) his duty toward such kindred; (5) he knew the diposition which he desired to make of his property; (6) the will which he executed expressed his intentions.

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The Supreme Court affirmed the following legal principles in reaching its decision:

A testator has a sound mind for testamentary purposes when he can understand and carry in mind, in a general way, the nature and situation of his property and his relations to those who naturally have some claim to his remembrance and to those in whom and the things in which he has been chiefly interested.

The testator must have sufficient memory to comprehend the conditions of his property and his relations to the objects of his bounty, but the fact that the memory of an old person has failed somewhat does not of itself invalidate his will, as occasional lapses of memory, mere decay or feebleness of memory or absent mindedness, ought not to invalidate a will unless amounting under our general rule to a mental incapacity to collect the particulars essential to a just testamentary disposition.

A presumption of sanity goes with everyone, and the burden of proving unsoundness of mind in a will contest rests on the contestant.

From this case certain “Badges of Competency” are evident. First, there is an overall presumption that a will properly executed (you need an attorney to make sure this is done correctly) was competently executed. There is a presumption of sanity, or competency. The burden to prove that someone was not competent is on the objector to the will.

Second, no one has to be perfect mentally to make a valid will. A good enough memory is OK. It does not have to perfect. Forgetfulness is allowed. Did the will maker understand what he or she owned. Who his or her relatives were and who would be his or her natural objects of his love and affection.

It is good enough to know in a general way what is owned, and the relationship with the natural objects of bounty or close family and friends. The Supreme Court stated these five “Badges of Competency” as follows: (1) To know in a general way the property owned; (2) To know in a general way his or her own business affairs; (3) To remember his or her relationship with close family and friends; (4) To understand that he or she has a duty toward close family; (5) To know and understand what he or she wanted to happen with the estate after death.

Brent has been helping his clients since 1976.  He knows his way around the courtroom, but also how to keep his clients out of court.  He is an expert with wills, trusts, probate, living wills, advance directives, guardianships, powers of attorney and solving many problems that affect us all.  Brent is an expert with nursing home Medicaid qualification.  He has saved thousands of dollars for his clients who need to qualify for Medicaid.  He knows how to legally protect resources and qualify for Medicaid.  He is experienced in dealing with the Department of Human Resources.  Cal Brent’s office at (405) 478-5655 or 737-2244.  Brent has two offices: 1800 East Memorial Road, Suite 106, Oklahoma City and 2801 Parklawn Drive, Suite 503, Midwest City.

 

I really must brag some.  I handled a contested probate before Judge Welch in the Oklahoma County District Court.  My opposing attorneys were with one of the largest and most prestigious laws firms in the state.  The decedent died with a will executed simultaneously with two transfer-on-death deeds given to my clients.  Transfer-on-death deeds are not part of the probate estate.  The ownership of the real estate passes outside of probate by the filing of a grantee acceptance affidavit with a death certificate with the county clerk.

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The decedent’s attorney testified that his client’s intent was to pay off the mortgage debt on the transfer-on-death deed properties before she died.  Her cancer took her before she could.  I filed claims with the personal representative for the mortgage debt, asking the estate to pay it off.  The personal representative denied the claims.  I filed a lawsuit on the merit of the claims.  The case was decided by Judge Welch in my client’s favor.  The personal representative appealed.  The Oklahoma Supreme Court accepted the case for decision and affirmed Judge Welch, ruling that the estate owed the mortgage debt.

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The lesson this case teaches is that the intent of the decedent is paramount.  The Supreme Court looked at the will and saw that it referenced paying off all mortgage debt of the decedent. The transfer-on-death deed statute does not provide for what happens to mortgage debt remaining on real estate, except that the land remains subject to the mortgage debt.  Since it is a lien already, that is just a statement of existing law, that the lien follows the land regardless of who owns it.  The question of who pays for the mortgage debt against transfer-on-death land was not answered.  In my case the Supreme Court said that the language in the will controls.

Last Will and Testament

BRENT IS EXPERIENCED IN PROBATES, WILLS AND TRUSTS

This is an important case.  It establishes for the first time that a will controls payment of debt upon property passing outside of the probate estate.

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Careful estate planning is required for an estate.  Having an experienced attorney handle your estate plan is best.  I have over 40 years experience.  As this most recent opinion shows, I know something about the law too!   An experienced living trust attorney like Brent D. Coldiron, knows what to do in these situations. His fees are reasonable. The best money ever spent is to get good legal advice before signing your name to something. Contact Brent at (405) 478-5655 or 737-2244. His website is http://coldironlaw.com.  Here is my case:

IN THE MATTER OF THE ESTATE OF CARLSON
IN THE MATTER OF THE ESTATE OF CARLSON
2016 OK 6
Case Number: 110720
Decided: 01/20/2016
THE SUPREME COURT OF THE STATE OF OKLAHOMA

Cite as: 2016 OK 6, __ P.3d __
IN THE MATTER OF THE ESTATE OF: CAROL JEAN CARLSON

DEBRA GLOVER, PERSONAL REPRESENTATIVE OF THE ESTATE OF CAROL JEAN CARSON, Appellant,
v.
CLIFFORD CORNISH, FARM CREDIT SERVICES and ELDIN LEWIS, Appellees.

ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION IV

¶0 A grantor executed transfer-on-death deeds for two properties. Both properties were subject to mortgages, securing promissory notes executed by the grantor. Shortly after executing the transfer-on-death deeds, the grantor died. The grantees and one of the lenders filed creditors’ claims against the decedent grantor’s estate asserting the debt secured by the mortgages on the two properties was a liability of the estate. The personal representative denied the claims. The grantees and lender filed ancillary petitions on claims. In an order determining the extent of the estate’s liability, the trial court determined that the claims were liabilities of the estate to be paid by the personal representative in the due course of administration. The personal representative appealed and the Court of Civil Appeals reversed. This Court granted certiorari.

CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF
CIVIL APPEALS VACATED; ORDER OF THE TRIAL COURT
AFFIRMED

Randall Allen Gill and Jeff K. Rhodes, Tulsa, OK, for Appellant Debra Glover.
Brent D. Coldiron, Oklahoma City, OK, for Appellees Clifford Cornish and Eldin Lewis.
Victor Eric Morgan, Tulsa, OK, for Appellee Farm Credit Services.

COMBS, V.C.J.:

¶1 At issue in this cause is whether the estate of a deceased grantor of mortgaged properties conveyed by transfer-on-death deed is liable for the underlying debt, when the grantor’s will contained express instructions for the payment of all debts secured by mortgages. We determine that it is.

I.
FACTS AND PROCEDURAL HISTORY

¶2 Carol Jean Carlson (Decedent) learned she was terminally ill in 2011, and retained an attorney to assist her in planning the disposition of her estate (Estate). On August 24, 2011, Decedent executed three transfer-on-death deeds (TODDs) pursuant to the Nontestamentary Transfer of Property Act (NTPA), 58 O.S. 2011 §§ 1251-1258 for real property she owned, as well as a Last Will and Testament. One of the pieces of real property transferred via TODD went to Debra Glover– who was later appointed Personal Representative of the Estate–and is not at issue in this appeal. The first of the other two TODDs named Appellee Clifford Cornish (Cornish) as grantee and the second named Eldin Lewis (Lewis). For purposes of this opinion, Appellees Cornish and Lewis will be collectively referred to as Grantees. Decedent died on August 29, 2011, five days after executing the TODDs and her Last Will and Testament.

¶3 The TODD to Lewis concerns the following parcel:

[a] tract of land being a part of the South Half (S/2) of the Northeast Quarter (NE/4) of Section Five (5), Township Twelve (12) North, Range One (1) West of the Indian Meridian, Oklahoma County, Oklahoma . .

TODD to Eldin B. Lewis, R. 285.

Prior to Decedent’s estate planning and the execution of the TODD, Decedent executed a promissory note in the amount of $140,224.35 on December 19, 2006, in favor of The Margee and Robert W. Minter Living Trust (Trust). R. 241. This note was secured by a mortgage, filed December 21, 2006, which encumbered the property conveyed to Lewis via the TODD. Mortgage of Real Estate, R. 242. Lewis timely accepted the TODD. On December 7, 2011, Lewis filed a proof of claim with the Personal Representative for the remaining debt in the amount of $123,530.09. The Personal Representative rejected Lewis’ claim on December 16, 2011. Notice of Rejection of Creditor’s Claim, R. 74

¶4 The TODD to Cornish concerns a 31-acre parcel of real property in Oklahoma County described as:

[a]ll that part of the West Half (W/2) of Section Thirty-Three (33), Township Fourteen (14) North, Range One (1) East of the Indian Meridian, Oklahoma County, Oklahoma, that lies West of the S.L. & S.F. Railroad right-of-way and South of Hogback road (sometimes referred to as Jones Spencer road).

Transfer on Death Deed to Clifford Earl Cornish, R. 59.

Previously, on May 27, 2007, Decedent executed a note and security agreement in favor of Appellee Farm Credit Services (FCS) in the amount of $96,000.00. The note is secured by a mortgage in favor of FCS executed on the same day and filed on May 29, 2007. A second note and security agreement, amending the first, were executed on September 16, 2010, for the amount of $83,778.60.

¶5 The record contains a letter from the Personal Representative’s attorney dated November 2, 2011, advising Cornish that the property he was to receive through the TODD was subject to a mortgage. The letter noted the language of 58 O.S. 2011 § 1255(B), stated that the mortgage remained attached to the land, that the owner of the land remains responsible for paying it, and provided an enclosed disclaimer for Cornish to sign if he desired not to accept ownership of the property. Letter to Clifford Earl Cornish, R. 72-73.

¶6 Cornish instead decided to accept ownership of the parcel conveyed by the TODD, and signed an affidavit to that effect on December 4, 2011. During probate of the Estate, Cornish filed a creditor’s claim against the Estate arguing that the note, security agreement, and mortgage were all executed by Decedent and the debt is the Estate’s alone, citing a pay all debts provision in Decedent’s Last Will and Testament. Claim of Clifford Earl Cornish, R. 79. The Personal Representative rejected Cornish’s claim on December 16, 2011. FCS also filed a creditor’s claim with the Personal Representative, for the amount of the note secured by the mortgage on the property granted to Cornish. FCS asserted that the full amount was due and payable under the terms of the note. The Personal Representative rejected this claim on December 22, 2011. The record indicates FCS has begun foreclosure proceedings on the property securing the note, taken by Cornish pursuant to the TODD.

¶7 FCS filed its Ancillary Petition on Claim on January 9, 2012. Grantee Cornish filed his Ancillary Petition on Claim on January 10, 2012. On January 10, 2012, the Personal Representative filed an Application for Order Determining the Extent of the Estate’s Liability concerning the claims of Grantee Cornish and FCS. On January 27, 2012, Grantee Lewis filed his own Ancillary Petition on Claim. The Personal Representative filed a second Application for Order Determining Extent of Estate’s Liability on February 3, 2012, concerning Grantee Lewis’ claim.

¶8 On April 6, 2012, the trial court entered an order granting the Appellees’ petitions, approving the ancillary claims, and finding the mortgages and notes to be liabilities of the Estate. The Personal Representative filed a Petition in Error on May 25, 2012. On appeal, Personal Representative contends the trial court erred as a matter of law by allowing the creditors’ claims of Grantees and FCS because : 1) allowing the claims was contrary to the express language of 58 O.S. 2011 § 1255(A) and the purpose of the NTPA; 2) the trial court lacked jurisdiction because TODDs are nontestamentary instruments that may not be revoked by will; and 3) the intent/language of Decedent’s Last Will and Testament was insufficient to override the provisions of the NTPA without express, specific language requiring payment.

¶9 The Court of Civil Appeals, in an opinion filed on June 11, 2015, reversed the decision of the trial court and remanded for further proceedings. The Court of Civil Appeals determined that Grantees did not have standing to pursue creditors’ claims against the Estate to satisfy the notes and mortgages on their respective properties. Further, the Court of Civil Appeals determined that while FCS possessed standing as the holder of a note and mortgage, the trial court prematurely granted FCS’ claim because FCS was required to foreclose on the property, obtain a deficiency judgment, and only then present a claim to the Estate for payment.

¶10 Grantees filed their Petition for Certiorari on June 24, 2015, asserting the Court of Civil Appeals decided a question of substance not heretofore determined by this Court. We granted certiorari on October 26, 2015, and the cause was assigned to this office on October 27, 2015.

III.
STANDARD OF REVIEW

¶11 Probate proceedings are of equitable cognizance. In re Estate of Holcomb, 2002 OK 90, ¶8, 63 P.3d 9; In re Estate of Sneed, 1998 OK 8, ¶8, 953 P.2d 1111. Although this Court will examine and weigh the evidence, there is a presumption that the trial court’s decision is legally correct and cannot be disturbed unless found to be clearly contrary to the weight of the evidence or to some governing principle of law. In re Estate of Speers, 2008 OK 16, ¶8, 179 P.3d 1265; In re Estate of Holcomb, 2002 OK 90, ¶8. If legally correct, the trial court’s ruling will not be reversed because of faulty reasoning, an erroneous finding of fact, or consideration of an immaterial issue. In re Estate of Speers, 2008 OK 16, ¶8; In re Estate of Holcomb, 2002 OK 90, ¶8; In re Estate of Maheras, 1995 OK 40, ¶7, 897 P.2d 268.

IV.
ANALYSIS

A. The Trial Court Correctly Determined Appellees’ Claims Are Liabilities of the Estate

¶12 The first question we must answer is whether the trial court erred when it determined the notes, secured by mortgages on the land transferred to Grantees, are liabilities of the Decedent’s estate. We hold that it did not.

1. Decedent’s intent, as expressed by her Last Will and Testament and the TODDs, was for her estate to pay all of her debts, including those secured by mortgages on the properties transferred to Grantees via TODD.

¶13 Of paramount importance in a probate proceeding is discerning and implementing a decedent’s intent. Title 84 O.S. 2011 § 151 provides: “[a] will is to be construed according to the intention of the testator. Where his intention cannot have effect to its full extent, it must have effect as far as possible.” Amongst other provisions, Decedent’s Last Will and Testament contains the following directive concerning her debts:

2. PAYMENT OF DEBTS: I hereby direct that all my debts, including the expenses of my last illness and burial and the expenses of administration of my estate, be paid by my executor except that the payment of any debts secured by mortgage or pledge of real or personal property may be postponed until payable by its terms.

Last Will and Testament of Carol Jean Carlson, R. 1.

It is undisputed in this cause that the TODDs and Decedent’s Last Will and Testament were executed on the same day and conceived as a single estate plan. Pursuant to 84 O.S. 2011 § 154, “[s]everal testamentary instruments, executed by the same testator, are to be taken and construed together as one instrument.”

¶14 The TODDs at issue in this cause are nontestamentary instruments, authorized by the Nontestamentary Transfer of Property Act (NTPA), 58 O.S. §§ 1251-1258. Specifically, 58 O.S. 2011 § 1258 provides: “[a] deed in transfer-on-death form, executed in conformity with the Nontestamentary Transfer of Property Act, shall not be considered a testamentary disposition and shall not be invalidated due to nonconformity with other provisions in Title 58 or Title 84 of the Oklahoma Statutes.” Even so, though the TODDs are nontestamentary in that they need not comply with other provisions of Title 58 or Title 84, nothing in the NTPA prevents the TODDs from being examined with Decedent’s simultaneously executed testamentary instruments to determine Decedent’s intent in this instance. Because all of the instruments in question were executed on the same day and as part of a comprehensive plan, this Court will interpret them together in order to discern Decedent’s intent.1 Discerning Decedent’s intent is the emphasis of the entire probate process. In re Estate of Sneed, 1998 OK 8, ¶8, 953 P.2d 1111; In re Estate of Holcomb, 2002 OK 90, ¶8, 63 P.3d 9; Miller v. First National Bank & Trust Co., 1981 OK 133, ¶8, 637 P.2d 75.

¶15 The unambiguous debt-payment provision of Decedent’s Last Will and Testament, along with the TODDs, indicate Decedent’s intent was that the notes secured by the mortgages on the properties conveyed to Grantees by TODD be paid by Decedent’s estate. This determination is further supported by the affidavit of Jeff A. Eulberg, Decedent’s friend and the attorney who assisted Decedent with the planning of her estate, including the preparation of her Last Will and Testament and the TODDs. Attorney Eulberg’s affidavit provides in pertinent part:

3. She contacted me to help her with distributing her property at her death through her will and using transfer-on-death-deeds. She told me that she wanted to give her friends some property. She told me that she intended to sell her mobile home park and use that money to pay off what she owed on her other property. Unfortunately her cancer progressed too rapidly. She died before she could sell the mobile home park.

4. By August 24, 2011 she believed that she didn’t have much time left. On August 24th, 2011 I prepared her will and some remaining transfer-on-death deeds. Her will and transfer-on-death deeds were read to her. I also explained the will and transfer-on-death deeds to her. The documents were then executed, witnessed and notarized as required by law. The will which I prepared and she signed is the same will admitted into probate in this case. .

5. At no time did she tell me that she did not want all of her debts paid. The will I prepared, which she signed, complied with her wishes.

Affidavit of Jeff A. Eulberg, R. 295.

¶16 Decedent’s Last Will and Testament contains an explicit provision for payment of debts, including those secured by mortgages on real property, which she intended cover the notes secured by the properties transferred to Grantees. Title 58 O.S. 2011 § 461 concerns will provisions for payment of debts, and states:

[i]f the testator makes provisions by his will or designates the estate to be appropriated for the payment of his debts, the expenses of administration, or family expenses, they must be paid according to such provisions or designation, out of the estate thus appropriated, so far as the same is sufficient.

Normally, when a decedent’s real property secured by mortgage passes to successors, 58 O.S. 2011 § 461 operates in concert with another statutory provision, 46 O.S. 2011 § 5, which provides:

[w]hen real property, subject to a mortgage, passes by succession or will, the successor or devisee must satisfy the mortgage out of his own property, without resorting to the executor or administrator of the mortgagor, unless there is an express direction in the will of the mortgagor that the mortgage shall be otherwise paid.

When real property subject to a mortgage passes by succession or will, so does responsibility for satisfying the mortgage–pursuant to 46 O.S. 2011 § 5– unless, in accordance with 58 O.S. 2011 § 461, the testator made specific provisions in the will for payment to be made some other way.

¶17 However, 46 O.S. 2011 § 5 is not applicable in this cause, as the properties conveyed to Grantees by the TODDs did not pass by succession or will. Instead, at issue is the interaction of 58 O.S. 2011 § 461 and the payment-of-debts clause in Decedent’s will, with a specific section of the NTPA, 58 O.S. 2011 § 1255(A), which provides:

[g]rantee beneficiaries of a transfer-on-death deed take the interest of the record owner in the real estate at the death of the grantor owner, free and clear of any claims or interest under Section 44 of Title 84 of the Oklahoma Statutes as to a person who became the spouse of the grantor subsequent to the execution of the transfer-on-death deed, subject to all recorded conveyances, assignments, contracts, mortgages, liens and security pledges made by the record owner or to which the record owner was subject during the lifetime of the record owner including, but not limited to, any recorded executory contract of sale, option to purchase, lease, license, easement, mortgage, deed of trust or lien, and to any interest conveyed by the record owner that is less than all of the record owner’s interest in the property, provided however, a non-consensual lien against the grantee beneficiary shall not attach to the property until the recording of the affidavit described in Section 1252 of this title.

Appellant asserts 58 O.S. 2011 § 1255(A) conflicts with 58 O.S. 2011 § 461 and the intent of Decedent expressed in her Last Will and Testament.

2. The NTPA does not conflict with or defeat Decedent’s intent that the debts represented by Appellees’ claims be paid by the Estate.

¶18 Pursuant to 58 O.S. 2011 § 1255(A), Grantees took the interest of Decedent in the respective properties at the time of Decedent’s death. They took this interest “subject to all recorded conveyances, assignments, contracts, mortgages, liens and security pledges made by the record owner.” Title 58 O.S. 2011 § 1255(A). By the plain terms of the statute, Grantees each took the properties subject to the mortgages attached to them. Those mortgages serve as security for the notes originally executed between Decedent and her lenders, Farm Credit Services and The Margee and Robert W. Minter Living Trust. Title 58 O.S. 2011 § 1255(A) does not, by its own terms, provide that Grantees assumed liability for any of Decedent’s underlying debt. Rather, Grantees took the property subject to the security for that debt: the mortgages.

¶19 In Oklahoma, a mortgage does not operate as a conveyance vesting in the mortgagee any estate in realty. First Mustang State Bank v. Garland Bloodworth, Inc., 1991 OK 65, ¶33, 825 P.2d 254; Coursey v. Fairchild, 1967 OK 252, ¶7, 436 P.2d 35. Rather, it creates a lien against the realty in order to secure the payment of a debt. First Mustang State Bank, 1991 OK 65, ¶33; Coursey, 1967 OK 252, ¶7. Generally, no personal obligation rests on a purchaser of mortgaged land to pay mortgage debt. Parlette v. Equitable Farm Mortgage Co., 1933 OK 478, ¶7, 25 P.2d 300; Bailey v. State, 1919 OK 49, ¶4, 179 P. 615.2

¶20 Where a mortgagor conveys mortgaged land to a grantee who assumes and agrees to pay the mortgage debt, the grantee becomes the principal obligor of the mortgage debt and mortgagor his surety. Stalcup v. Easterly, 1960 OK 39, ¶9, 351 P.2d 735. However, nothing in the record in this cause indicates Grantees assumed or agreed to pay the notes secured by the mortgages, even though they were aware of the notes. Pursuant to 58 O.S. 2011 § 1255(A), therefore, Grantees took title to the properties in question subject to the mortgages encumbering the properties, but assumed no liability for the debt. This result is consistent with 58 O.S. 2011 § 461, and the expressed intent of Decedent’s Last Will and Testament.

¶21 The NTPA is a comparatively new piece of legislation, and there is therefore little precedent concerning TODDs. However, conveyance of property by TODD shares important similarities with property held in joint tenancy. As this Court previously noted:

[i]t is well-settled law that a joint tenancy, in either real or personal property, “creates a present estate which, absent severance during the life of the joint tenants, assures the surviving tenant absolute ownership of the whole subject matter of the joint tenancy.” Toma, 2007 OK 52, ¶ 11, 163 P.3d at 544. Upon a joint tenant’s death, the decedent’s interest terminates and the surviving tenant’s interest simply continues. Clovis v. Clovis, 1969 OK 170, ¶ 16, 460 P.2d 878, 881. By operation of law, the surviving tenant becomes immediately vested with the property as a whole, and the joint tenancy property is excluded from the decedent’s estate. Toma, 2007 OK 52, ¶ 11, 163 P.3d at 544. Therefore, there is no property interest remaining that a decedent’s beneficiary may inherit. See Draughon, 1948 OK 81, ¶ 9, 200 Okla. 198, 191 P.2d at 923.

In re Estate of Metz, 2011 OK 26, ¶8, 256 P.3d 45. Though there are obvious differences, the similarities were set out succinctly by the Court of Appeals of Kansas in In re Estate of Roloff, 143 P.3d 406 (Kan. Ct. App. 2006). The court noted:

[a] TOD deed has many of the same survivorship characteristics as a joint tenancy deed. These characteristics are as follows: (a) that the record owner’s interest automatically transfers to the grantee beneficiary upon the death of the record owner, K.S.A. 59-3501(a) and K.S.A. 59-3504(a); (b) that no other action or procedure is required to transfer full title to the grantee beneficiary, K.S.A. 59-3501(a) and K.S.A. 59-3504; (c) that any attempt by the record owner to revoke or convey the record owner’s interest in real estate subject to a TOD deed by the record owner’s will is invalid, K.S.A. 59-3503(c); (d) that because title in the real estate vests immediately in the grantee beneficiary upon the death of the record owner under K.S.A. 59-3501(a) and K.S.A. 59-3504(a), the real estate is not included in the record owner’s probate estate; and (e) that the transfer of the real estate by a TOD deed is not testamentary in nature under K.S.A. 59-3507, and is not subject to the provisions of the probate code.

In re Estate of Roloff , 143 P.3d at 413.

¶22 Given the similarities, cases from other jurisdictions with similar facts are illustrative. In In re Estate of Charles A. Zahn, 305 N.J. Super. 260, 270-71, 702 A.2d 482 (1997), the decedent died testate with instructions in his will that the executor “pay all of [his] just debts and funeral expenses as soon as practicable after [his] death.” Prior to his death, the decedent had executed a joint tenancy deed for his residence, which was encumbered by a mortgage. The survivor of the joint tenancy paid the debt secured by the mortgage on the residence to prevent foreclosure and sought exoneration from the estate. The New Jersey Supreme Court found that the “just debts” language was not sufficiently specific to indicate that the decedent intended the estate be liable for the mortgage. The Court noted that if the testator wanted the estate to pay the mortgage, he or she could have accomplished this by including specific language such as “free and clear.” The Court cited A Treatise on Equity Jurisprudence, which states that “[w]here a mortgagor conveys by deed [and is] absolutely silent with respect to an outstanding mortgage, the grantee, of course, takes the land encumbered by the mortgage.” In re Estate of Charles A. Zahn, 305 N.J. Super. at 271 (quoting 4 John Norton Pomeroy, A Treatise on Equity Jurisprudence, § 1205, at 613 (5th ed.1941)).

¶23 Similarly, the California Court of Appeals found that, where the deceased held a property in joint tenancy with another, his direction in his will to pay his “just debts” was not sufficient to indicate the intention that the mortgage be a liability of the estate. In re Estate of Roy P. Dolley, 265 Cal.App.2d 63 (1968). The court noted that “[f]oreign authority exists to the effect that a surviving joint tenant does not qualify for exoneration of a mortgage on joint tenancy property unless there is language in the decedent’s will clearly expressing an intention that the mortgage debt be paid.” In re Estate of Roy P. Dolley, 265 Cal.App.2d at 72.

¶24 These cases indicate that where a will clearly and unambiguously provides for the payment of a debt secured by mortgage, such direction should be followed, despite the transfer of property ownership occurring outside of probate. Personal Representative points to the above cases as support for the contention that the debt is not a liability of the estate, arguing that Decedent’s will “did not contain express language to require the payment of the mortgages transferred under the Non-Testamentary Transfer on Death Deed statutes.” However, this case is distinguishable factually from the cases discussed above, as Decedent’s will did not merely refer to “just debts” and, in fact, did specify the payment of debts secured by mortgages: “I hereby direct that all my debts . . . be paid by my executor, except that the payment of any debt secured by mortgage or pledge or real or personal property may be postponed until payable by its terms.” This language specifically addresses debts secured by mortgages and provides unambiguous direction for payment. Thus, these directions should be followed, even if the underlying property subject to the mortgages as security for the debt was transferred outside of probate by TODD.3

B. Appellees Possess Standing to Assert Their Claims

¶25 Having determined that the trial court correctly ruled the debts set out in Appellees’ creditors’ claims are liabilities of the Estate, this Court must now consider whether Appellees possessed standing to assert those claims.4 The Court of Civil Appeals determined Grantees did not have standing, holding:

[w]e interpret the will’s language to mean that satisfaction of “any debts secured by mortgage or pledge of real or personal property” need not be immediate. Rather, satisfication “may be postponed until payable by its terms.” This means a secured debt may be collected by a creditor or mortgage holder entitled to collect that debt from the Estate using any remedies available to that creditor by law or under the terms of that secured debt. However, those remedies are not available to Grantees because they are neither parties to the debt, creditors of the Estate, nor proper parties to enforce payment of the debt secured by their real property which had been formerly owned by Estate. Grantees may not use the terms of Decedent’s will to compel Estate to act to satisfy the debt on their properties. That right belongs to the actual owners of those secured debts, who alone have standing to present a creditor’s claim.

Opinion of the Court of Civil Appeals, ¶29.

The Court of Civil appeals further concluded that even the actual creditors of the estate, such as FCS, must obtain a deficiency judgment post-foreclosure first, and only then submit a claim to the estate for payment. Opinion of the Court of Civil Appeals, ¶30. We disagree.

1. FCS was not required to foreclose and only afterwards file a creditor’s claim limited to the amount of any deficiency judgment

¶26 Concerning the timeliness and nature of FCS’ claim, 58 O.S. 2011 § 461 requires that debt-related provisions in wills be followed, and that payment be made according to the specifications of those provisions. Decedent’s will provides that “payment of any debts secured by real or personal property may be postponed until payable by its terms.” This language should not be construed to require the creditor to first foreclose, apply the proceeds of the sale to the debt, and then obtain a deficiency judgment to present to the estate. The will calls for payment of the debt on its terms, not for reimbursement post-default. As the dissent in the Court of Civil Appeals Opinion correctly notes, it is clear from this language that Decedent not only intended the estate to pay the debts represented by the notes to FCS and the Trust, but also intended to give the estate some flexibility in doing so, either in continued installments or as one lump sum. Forcing foreclosure followed by a deficiency judgment would frustrate the entire purpose of Decedent’s combined use of the TODDs along with the debt payment provision of her will: for the Grantees to take the property with the debt paid by the Estate.

¶27 Further, nothing in the relevant statutes or this Court’s prior jurisprudence requires the holder of a note secured by mortgage on real property to initiate foreclosure proceedings prior to filing a claim against the estate for underlying debt. Title 58 O.S. 2011 § 333 (emphasis added) provides:

[a]ll claims arising upon contracts entered into prior to the decedent’s death, whether the same be due, not due or contingent, must be presented on or before the presentment date as provided in the notice, and any claim not so presented is barred forever; provided, however, that when it is made to appear by the affidavit of the claimant, to the satisfaction of the personal representative and the judge of the district court, as duly noted on the claim, that the claimant had no notice by reason of being out of the state and that a copy of the notice to creditors was not mailed to said claimant, the claim may be presented at any time before a final decree of distribution is entered; provided, further, that nothing in this section, nor in this chapter contained, shall be construed to prohibit the right or limit the time of foreclosure of mortgages upon real property of decedents, but every such mortgage may be foreclosed within the time and in the mode prescribed in civil procedure, except that no balance of the debt secured by such mortgage remaining unpaid after foreclosure shall be a claim against the estate, unless such debt was presented as required by this code.

The emphasized portion of 58 O.S. 2011 § 333 unambiguously creates a simple rule: filing a creditor’s claim against the estate is not a condition precedent in order for a creditor secured by a mortgage on real property to foreclose. However, 58 O.S. 2011 § 333 does not allow a creditor to pursue a deficiency judgment after foreclosure, unless a claim was presented to the estate pursuant to the probate code.

¶28 This Court explained the relevant portion of 58 O.S. 2011 § 333 in Cahill v. Kilgore, 1960 OK 88, ¶10, 350 P.2d 928:

[u]nder the above quoted exception, plaintiff clearly had the right to foreclose the mortgage in controversy without first presenting to defendant in her representative capacity a claim based upon the note securing the mortgage or the mortgage. In her brief plaintiff makes this statement and concession: ‘There is no question here about a deficiency judgment in this case. It could only arise if presented to the County Court after the foreclosure. Under the above proviso we had the right to proceed by foreclosure without presenting claim to administrator. We waived that right and chose to rely on our mortgage.’ In view of the fact that an action to foreclose a mortgage may be maintained without seeking a personal judgment (Irwin v. Sands, Okl., 265 P.2d 1097) and in view of the further fact that plaintiff is not here asserting the right to recover a deficiency from Dick Cahill’s estate, we are of the opinion that defendant’s first contention is not well taken.5

While FCS was certainly permitted by 58 O.S. 2011 § 333 to initiate foreclosure proceedings without presenting a claim based upon its note to Decedent’s estate, it was not required to do so. Instead, FCS chose to seek payment of the due note6 pursuant to its terms by filing a creditor’s claim against Decedent’s estate. The right of FCS to present a creditor’s claim prior to foreclosing is therefore established. The only question remaining is that of Grantees’ standing.

2. Grantees possessed standing to assert their claims before the trial court

¶29 Standing refers to a person’s legal right to seek relief in a judicial forum. Fent v. Contingency Review Bd., 2007 OK 27, ¶7, 163 P.3d 512; Hendrick v. Walters, 1993 OK 162, ¶4, 865 P.2d 1232. The three threshold criteria of standing are (1) a legally protected interest which must have been injured in fact–i.e., suffered an injury which is actual, concrete and not conjectural in nature, (2) a causal nexus between the injury and the complained-of conduct, and (3) a likelihood, as opposed to mere speculation, that the injury is capable of being redressed by a favorable court decision. J.P. Morgan Chase Bank Nat. Ass’n v. Eldridge, 2012 OK 24, ¶7, 273 P.3d 62; Fent, 2007 OK 27, ¶7. The Standing doctrine should never be applied mechanistically to bar from the courthouse those who are truly aggrieved. Application of Southwestern Bell Telephone, L.P., 2007 OK 55, ¶5, 164 P.3d 150.

¶30 Grantees both possess interests in real property encumbered by mortgages. Those mortgages secure debt that is a liability of Decedent’s Estate. Failure of the Estate to pay that debt will subject Grantees to foreclosure of their respective properties, an action for which has already been filed concerning Grantee Cornish’s property. The injury to Grantees if the Estate’s liability for the debt is not recognized is concrete, not conjectural. Grantees’ injury is a direct result of the Personal Representative’s denial of their claims, and is capable of being redressed by the court’s decision that the debts secured by their properties must be paid by Decedent’s estate. This Court has also stated that a litigant must have a personal stake in the outcome. Hendrick v. Walters, 1993 OK 162, ¶5, 865 P.2d 1232; Indep. School Dist. No. 9 of Tulsa County v. Glass, 1982 OK 2, ¶8, 639 P.2d 1233. Grantees possess such a personal stake: if the debt is not recognized as that of the Estate, they must pay it themselves or lose their property.

¶31 The claim of Grantee Cornish specifically states it was filed to protect his right to be equitably subrogated and potentially recover against the estate because of the threat of foreclosure on his property arising directly from the Estate’s prior refusal to recognize its obligation to pay the note. Claim of Clifford Earl Cornish, R. 79. Likewise, the claim of Grantee Lewis was made to protect his ownership of his property by obtaining confirmation from the court of the estate’s obligation to pay the note secured by mortgage on his property. Proof of Claim, R. 76.

¶32 The doctrine of equitable subrogation is a creature of equity intended to achieve the natural justice of placing the burden where it ought to rest. In re Estate of MacFarline, 2000 OK 87, ¶31, 14 P.3d 551; Republic Underwriters Ins. Co. v. Fire Ins. Exchange, 1982 OK 67, ¶6, 655 P.2d 544, 547. It is unlike a fixed rule of law; instead, equitable subrogation is pliable and capable of being molded to attain justice to compel the ultimate discharge of a debt or obligation by the party who in good conscience ought to pay it. In re Estate of MacFarline, 2000 OK 87, ¶31; Republic Underwriters Ins. Co., 1982 OK 67, ¶6. Grantees sought legal recognition during the probate process of the Estate’s liability for notes secured by mortgages on their real property, in accordance with Decedent’s intent. Given the circumstances of this case, it is the opinion of this Court that they had standing to do so.

CONCLUSION

¶33 The emphasis of the entire probate process is to discern and effectuate a decedent’s dispositive intentions. Matter of Estate of Sneed, 1998 OK 8, ¶8, 953 P.2d 1111; Miller v. First Nat. Bank & Trust Co., 1981 OK 133, ¶8, 637 P.2d 75. It was Decedent’s intent that her debts secured by mortgage or pledge of real or personal property be paid, including the debts secured by the properties transferred to Grantees via TODDs. The trial court properly determined that Decedent’s estate is liable for the debts secured by the mortgages on Grantees’ real property. The trial court’s decision was within its probate jurisdiction and did not conflict with the provisions of the Nontestamentary Transfer of Property Act (NTPA), 58 O.S. 2011 §§ 1251-1258. Appellees possessed standing to assert their claims and FCS’ claim was not premature.

CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF
CIVIL APPEALS VACATED; ORDER OF THE TRIAL COURT
AFFIRMED

REIF, C.J., COMBS, V.C.J., KAUGER, WATT, WINCHESTER, EDMONDSON, COLBERT, and GURICH, JJ., concur.

TAYLOR, J., concurs in result.

FOOTNOTES

COMBS, V.C.J.:

1 See Title 15 O.S. 2011 § 158 (“Several contracts relating to the same matters, between the same parties, and made as parts of substantially one transaction, are to be taken together.”).

This Court’s interpretation of 15 O.S. 2011 § 158 also allows for situations in which the contracts were not executed at substantially the same time and/or do not reference each other. In Pauly v. Pauly, this Court construed together a deed to real estate and an agreement regarding the reservation of oil and gas rights, stating:

Where several instruments are made a part of one transaction, they will be read together, and each will be construed with reference to the other. This is true, although the instruments do not in terms refer to each other. So if two or more agreements are executed at different times as parts of the same transaction they will be taken and construed together.

1946 OK 336, ¶16, 176 P.2d 491 (quoting 17 C.J.S., Contracts, § 298) (emphasis added).

2 This cause concerns liability for notes secured by mortgaged real property after the real property has been transferred, and is therefore distinct from situations where the note itself has changed hands. Assignment of the note itself necessarily carries with it assignment of the mortgage, and assignment of the mortgage without the note is a nullity. CPT Asset Backed Certificates, Series 2004-EC1 v. Cin Kham, 2012 OK 22, ¶¶7-8, 278 P.3d 586; BAC Home Loans Servicing, L.P. v. White, 2011 OK CIV APP 35, ¶10, 256 P.3d 1014.

3 With regard to Appellant’s point of error concerning jurisdiction: the trial court was within its probate jurisdiction to consider Appellees’ claims, regardless of the nontestamentary status of TODDs. Appellees’ claims concern Decedent’s Last Will and Testament and whether it requires Decedent’s Estate to pay certain of Decedent’s debts. Such claims are squarely within the probate jurisdiction of the trial court. 58 O.S. 2011 § 1.

4 Standing, very much like jurisdiction, must be inquired into sua sponte. Fent v. Contingency Review Bd., 2007 OK 27, ¶7, 163 P.3d 512. The Court of Civil Appeals found the issue of Appellees’ standing to be dispositive. An analysis of Appellees’ standing by this Court is warranted.

5 The Court in Cahill examined 58 O.S. 1951 § 333, a prior incarnation of the statute. The operative language, however, remains fundamentally unchanged.

6 A contingent claim and subsequent suit based upon a note not yet due is also permitted. In Anderson v. Merriott, 1976 OK 74, ¶8, 550 P.2d 1320, this Court explained:

[58 O.S. § 339] recognizes an unmatured debt is entitled to the same protection and remedies as one which is due before the death of the debtor. A claim against the estate of a deceased person for an unmatured debt is sufficient if it fully advises the administrator the nature and amount of the demand and sets forth the particulars of such claim. If the claim is properly presented and is rejected, the holder thereof may bring suit thereon in the proper court. Commercial Inv. Trust v. Harsha, 116 Okl. 140, 243 P. 955 (1926). Also see In re Travis’ Estate, 186 Okl. 223, 97 P.2d 50 (1939).

 

One of greatest impacts upon legal history was the Code of Hammurabi at Babylon. It stands for the proposition that the law comes from a higher power and is given to the King. Not even the King is above the law.

BRENT'S OFFICE AT 1800 EAST MEMORIAL ROAD.  WE ALL MUST FOLLOW THE LAW.  BRENT HAS 40 YEARS EXPERIENCE HELPING  HIS CLIENTS STAY WITHIN THE LAW.

BRENT’S OFFICE AT 1800 EAST MEMORIAL ROAD. WE ALL MUST FOLLOW THE LAW. BRENT HAS 40 YEARS EXPERIENCE HELPING HIS CLIENTS STAY WITHIN THE LAW.

In addition to this lawyers today would recognize the major areas of our modern law set forth in the Code of Hammurabi. Commercial transactions between a buyer and a seller. The sanctity of the contract is validated. See numbers seven, thirty-seven, fifty-two, one-hundred twenty-two and three, one-hundred fifty-one and fifty-two.  Personal relations are protected by the law. Justice, although severe by our sensibility, is none-the-less promised by the Code of Hammurabi. The Code of Hammurabi also stands for the principle that the law is greater than anyone. It was handed down by a higher authority. In that case, the god Marduk is shown delivering the law to King Hammurabi. The god Marduk is more powerful and reigns over the earthly King Hammurabi. The King is less important. The authority for the law is that it was mandated by a higher authority.

What do you think of number five.  Would you want to be a judge under this code of law.  Make a mistake and that is it for you.

US SUPREME COURT BUILDING

UNITED STATES SUPREME COURT BUILDING, WASHINGTON, DC. A GOOD LAWYER USUALLY KEEPS HIS CLIENTS OUT OF THE COURTHOUSE!

Punishment for just about anything usually resulted in death.  How do you like the idea that if someone accuses someone, they shall be thrown in a river and if they make it they are not guilty and the person who accused him is put to death!

The Code of Hammurabi did provide for the right of inheritance.  See number one-hundred seventy-eight.  Trust transactions are also covered.  See numbers one-hundred two, one-hundred twelve,  one-hundred seventy-seven, two-hundred fifty-three,  and two-hundred sixty-four and five.

Supreme Court Building

United States Supreme Court Building. Even the Supreme Court recognizes the importance of the Code of Hammurabi!

{ THE CODE OF
HAMMURABI
Translated by L. W. King
c Paulo J. S. Pereira, MMXI
The text of this work is based on the 1915 translation by L. W.
King, which is now in the public domain. The typography and
formatting are licensed under the Creative Commons Attribution-
NonCommercial-NoDerivs 3.0 Unported License.
Please send comments and suggestions for improvement to
Typographical.Society@gmail.com.
Revision : 1:2
PROLOGUE
When Anu the Sublime, King of the Anunaki, and Bel, the lord
of Heaven and earth, who decreed the fate of the land, assigned to
Marduk, the over-ruling son of Ea, God of righteousness, domin-
ion over earthly man, and made him great among the Igigi, they
called Babylon by his illustrious name, made it great on earth,
and founded an everlasting kingdom in it, whose foundations are
laid so solidly as those of heaven and earth; then Anu and Bel
called by name me, Hammurabi, the exalted prince, who feared
God, to bring about the rule of righteousness in the land, to de-
stroy the wicked and the evil-doers; so that the strong should not
harm the weak; so that I should rule over the black-headed people
like Shamash, and enlighten the land, to further the well-being
of mankind.
Hammurabi, the prince, called of Bel am I, making riches and
increase, enriching Nippur and Dur-ilu beyond compare, sublime
patron of E-kur; who reestablished Eridu and puri ed the worship
of E-apsu; who conquered the four quarters of the world, made
great the name of Babylon, rejoiced the heart of Marduk, his lord
who daily pays his devotions in Saggil; the royal scion whom Sin
made; who enriched Ur; the humble, the reverent, who brings
wealth to Gish-shir-gal; the white king, heard of Shamash, the
mighty, who again laid the foundations of Sippara; who clothed
the gravestones of Malkat with green; who made E-babbar great,
which is like the heavens, the warrior who guarded Larsa and
renewed E-babbar, with Shamash as his helper; the lord who
granted new life to Uruk, who brought plenteous water to its in-
habitants, raised the head of E-anna, and perfected the beauty of
Anu and Nana; shield of the land, who reunited the scattered in-
habitants of Isin; who richly endowed E-gal-mach; the protecting
king of the city, brother of the god Zamama; who rmly founded
the farms of Kish, crowned E-me-te-ursag with glory, redoubled
c Paulo J. S. Pereira, MMXI 3
the great holy treasures of Nana, managed the temple of Harsag-
kalama; the grave of the enemy, whose help brought about the
victory; who increased the power of Cuthah; made all glorious in
E-shidlam, the black steer, who gored the enemy; beloved of the
god Nebo, who rejoiced the inhabitants of Borsippa, the Sublime;
who is indefatigable for E-zida; the divine king of the city; the
White, Wise; who broadened the elds of Dilbat, who heaped
up the harvests for Urash; the Mighty, the lord to whom come
scepter and crown, with which he clothes himself; the Elect of
Ma-ma; who xed the temple bounds of Kesh, who made rich
the holy feasts of Nin-tu; the provident, solicitous, who provided
food and drink for Lagash and Girsu, who provided large sacri -
cial o erings for the temple of Ningirsu; who captured the enemy,
the Elect of the oracle who ful lled the prediction of Hallab, who
rejoiced the heart of Anunit; the pure prince, whose prayer is ac-
cepted by Adad; who satis ed the heart of Adad, the warrior, in
Karkar, who restored the vessels for worship in E-ud-gal-gal; the
king who granted life to the city of Adab; the guide of E-mach;
the princely king of the city, the irresistible warrior, who granted
life to the inhabitants of Mashkanshabri, and brought abundance
to the temple of Shidlam; the White, Potent, who penetrated the
secret cave of the bandits, saved the inhabitants of Malka from
misfortune, and xed their home fast in wealth; who established
pure sacri cial gifts for Ea and Dam-gal-nun-na, who made his
kingdom everlastingly great; the princely king of the city, who
subjected the districts on the Ud-kib-nun-na Canal to the sway
of Dagon, his Creator; who spared the inhabitants of Mera and
Tutul; the sublime prince, who makes the face of Ninni shine; who
presents holy meals to the divinity of Nin-a-zu, who cared for its
inhabitants in their need, provided a portion for them in Babylon
in peace; the shepherd of the oppressed and of the slaves; whose
deeds nd favor before Anunit, who provided for Anunit in the
temple of Dumash in the suburb of Agade; who recognizes the
right, who rules by law; who gave back to the city of Ashur its
protecting god; who let the name of Ishtar of Nineveh remain in
c Paulo J. S. Pereira, MMXI 4
E-mish-mish; the Sublime, who humbles himself before the great
gods; successor of Sumula-il; the mighty son of Sin-muballit; the
royal scion of Eternity; the mighty monarch, the sun of Babylon,
whose rays shed light over the land of Sumer and Akkad; the
king, obeyed by the four quarters of the world; Beloved of Ninni,
am I.
When Marduk sent me to rule over men, to give the protec-
tion of right to the land, I did right and righteousness in : : : , and
brought about the well-being of the oppressed.
c Paulo J. S. Pereira, MMXI 5
CODE OF LAWS
1. If any one ensnare another, putting a ban upon him, but he
can not prove it, then he that ensnared him shall be put to
death.
2. If any one bring an accusation against a man, and the ac-
cused go to the river and leap into the river, if he sink in the
river his accuser shall take possession of his house. But if
the river prove that the accused is not guilty, and he escape
unhurt, then he who had brought the accusation shall be
put to death, while he who leaped into the river shall take
possession of the house that had belonged to his accuser.
3. If any one bring an accusation of any crime before the elders,
and does not prove what he has charged, he shall, if it be a
capital o ense charged, be put to death.
4. If he satisfy the elders to impose a ne of grain or money, he
shall receive the ne that the action produces.
5. If a judge try a case, reach a decision, and present his judg-
ment in writing; if later error shall appear in his decision,
and it be through his own fault, then he shall pay twelve
times the ne set by him in the case, and he shall be pub-
licly removed from the judge’s bench, and never again shall
he sit there to render judgement.
6. If any one steal the property of a temple or of the court,
he shall be put to death, and also the one who receives the
stolen thing from him shall be put to death.
7. If any one buy from the son or the slave of another man,
without witnesses or a contract, silver or gold, a male or
female slave, an ox or a sheep, an ass or anything, or if he
take it in charge, he is considered a thief and shall be put to
death.
8. If any one steal cattle or sheep, or an ass, or a pig or a
goat, if it belong to a god or to the court, the thief shall pay
c Paulo J. S. Pereira, MMXI 6
thirtyfold therefor; if they belonged to a freed man of the
king he shall pay tenfold; if the thief has nothing with which
to pay he shall be put to death.
9. If any one lose an article, and nd it in the possession of
another: if the person in whose possession the thing is found
say \A merchant sold it to me, I paid for it before witnesses,”
and if the owner of the thing say, \I will bring witnesses who
know my property,” then shall the purchaser bring the mer-
chant who sold it to him, and the witnesses before whom he
bought it, and the owner shall bring witnesses who can iden-
tify his property. The judge shall examine their testimony{
both of the witnesses before whom the price was paid, and
of the witnesses who identify the lost article on oath. The
merchant is then proved to be a thief and shall be put to
death. The owner of the lost article receives his property,
and he who bought it receives the money he paid from the
estate of the merchant.
10. If the purchaser does not bring the merchant and the wit-
nesses before whom he bought the article, but its owner bring
witnesses who identify it, then the buyer is the thief and shall
be put to death, and the owner receives the lost article.
11. If the owner do not bring witnesses to identify the lost article,
he is an evil-doer, he has traduced, and shall be put to death.
12. If the witnesses be not at hand, then shall the judge set a
limit, at the expiration of six months. If his witnesses have
not appeared within the six months, he is an evil-doer, and
shall bear the ne of the pending case.
14. If any one steal the minor son of another, he shall be put to
death.
15. If any one take a male or female slave of the court, or a male
or female slave of a freed man, outside the city gates, he shall
be put to death.
16. If any one receive into his house a runaway male or female
slave of the court, or of a freedman, and does not bring it out
c Paulo J. S. Pereira, MMXI 7
at the public proclamation of the major domus, the master
of the house shall be put to death.
17. If any one nd runaway male or female slaves in the open
country and bring them to their masters, the master of the
slaves shall pay him two shekels of silver.
18. If the slave will not give the name of the master, the nder
shall bring him to the palace; a further investigation must
follow, and the slave shall be returned to his master.
19. If he hold the slaves in his house, and they are caught there,
he shall be put to death.
20. If the slave that he caught run away from him, then shall he
swear to the owners of the slave, and he is free of all blame.
21. If any one break a hole into a house (break in to steal), he
shall be put to death before that hole and be buried.
22. If any one is committing a robbery and is caught, then he
shall be put to death.
23. If the robber is not caught, then shall he who was robbed
claim under oath the amount of his loss; then shall the com-
munity, and : : : on whose ground and territory and in whose
domain it was compensate him for the goods stolen.
24. If persons are stolen, then shall the community and : : : pay
one mina of silver to their relatives.
25. If re break out in a house, and some one who comes to put
it out cast his eye upon the property of the owner of the
house, and take the property of the master of the house, he
shall be thrown into that self-same re.
26. If a chieftain or a man (common soldier), who has been or-
dered to go upon the king’s highway for war does not go,
but hires a mercenary, if he withholds the compensation,
then shall this ocer or man be put to death, and he who
represented him shall take possession of his house.
27. If a chieftain or man be caught in the misfortune of the king
(captured in battle), and if his elds and garden be given to
another and he take possession, if he return and reaches his
c Paulo J. S. Pereira, MMXI 8
place, his eld and garden shall be returned to him, he shall
take it over again.
28. If a chieftain or a man be caught in the misfortune of a king,
if his son is able to enter into possession, then the eld and
garden shall be given to him, he shall take over the fee of his
father.
29. If his son is still young, and can not take possession, a third
of the eld and garden shall be given to his mother, and she
shall bring him up.
30. If a chieftain or a man leave his house, garden, and eld and
hires it out, and some one else takes possession of his house,
garden, and eld and uses it for three years: if the rst owner
return and claims his house, garden, and eld, it shall not
be given to him, but he who has taken possession of it and
used it shall continue to use it.
31. If he hire it out for one year and then return, the house,
garden, and eld shall be given back to him, and he shall
take it over again.
32. If a chieftain or a man is captured on the \Way of the King”
(in war), and a merchant buy him free, and bring him back
to his place; if he have the means in his house to buy his
freedom, he shall buy himself free: if he have nothing in his
house with which to buy himself free, he shall be bought free
by the temple of his community; if there be nothing in the
temple with which to buy him free, the court shall buy his
freedom. His eld, garden, and house shall not be given for
the purchase of his freedom.
33. If a : : : or a : : : enter himself as withdrawn from the \Way of
the King,” and send a mercenary as substitute, but withdraw
him, then the : : : or : : : shall be put to death.
34. If a : : : or a : : : harm the property of a captain, injure the
captain, or take away from the captain a gift presented to
him by the king, then the : : : or : : : shall be put to death.
35. If any one buy the cattle or sheep which the king has given
to chieftains from him, he loses his money.
c Paulo J. S. Pereira, MMXI 9
36. The eld, garden, and house of a chieftain, of a man, or of
one subject to quit-rent, can not be sold.
37. If any one buy the eld, garden, and house of a chieftain,
man, or one subject to quit-rent, his contract tablet of sale
shall be broken (declared invalid) and he loses his money.
The eld, garden, and house return to their owners.
38. A chieftain, man, or one subject to quit-rent can not assign
his tenure of eld, house, and garden to his wife or daughter,
nor can he assign it for a debt.
39. He may, however, assign a eld, garden, or house which he
has bought, and holds as property, to his wife or daughter
or give it for debt.
40. He may sell eld, garden, and house to a merchant (royal
agents) or to any other public ocial, the buyer holding eld,
house, and garden for its usufruct.
41. If any one fence in the eld, garden, and house of a chief-
tain, man, or one subject to quit-rent, furnishing the palings
therefor; if the chieftain, man, or one subject to quit-rent
return to eld, garden, and house, the palings which were
given to him become his property.
42. If any one take over a eld to till it, and obtain no harvest
therefrom, it must be proved that he did no work on the
eld, and he must deliver grain, just as his neighbor raised,
to the owner of the eld.
43. If he do not till the eld, but let it lie fallow, he shall give
grain like his neighbor’s to the owner of the eld, and the
eld which he let lie fallow he must plow and sow and return
to its owner.
44. If any one take over a waste-lying eld to make it arable, but
is lazy, and does not make it arable, he shall plow the fallow
eld in the fourth year, harrow it and till it, and give it back
to its owner, and for each ten gan (a measure of area) ten
gur of grain shall be paid.
c Paulo J. S. Pereira, MMXI 10
45. If a man rent his eld for tillage for a xed rental, and receive
the rent of his eld, but bad weather come and destroy the
harvest, the injury falls upon the tiller of the soil.
46. If he do not receive a xed rental for his eld, but lets it on
half or third shares of the harvest, the grain on the eld shall
be divided proportionately between the tiller and the owner.
47. If the tiller, because he did not succeed in the rst year,
has had the soil tilled by others, the owner may raise no
objection; the eld has been cultivated and he receives the
harvest according to agreement.
48. If any one owe a debt for a loan, and a storm prostrates the
grain, or the harvest fail, or the grain does not grow for lack
of water; in that year he need not give his creditor any grain,
he washes his debt-tablet in water and pays no rent for this
year.
49. If any one take money from a merchant, and give the mer-
chant a eld tillable for corn or sesame and order him to
plant corn or sesame in the eld, and to harvest the crop; if
the cultivator plant corn or sesame in the eld, at the har-
vest the corn or sesame that is in the eld shall belong to
the owner of the eld and he shall pay corn as rent, for the
money he received from the merchant, and the livelihood of
the cultivator shall he give to the merchant.
50. If he give a cultivated corn- eld or a cultivated sesame- eld,
the corn or sesame in the eld shall belong to the owner of
the eld, and he shall return the money to the merchant as
rent.
51. If he have no money to repay, then he shall pay in corn or
sesame in place of the money as rent for what he received
from the merchant, according to the royal tari .
52. If the cultivator do not plant corn or sesame in the eld, the
debtor’s contract is not weakened.
53. If any one be too lazy to keep his dam in proper condition,
and does not so keep it; if then the dam break and all the
c Paulo J. S. Pereira, MMXI 11
elds be ooded, then shall he in whose dam the break oc-
curred be sold for money, and the money shall replace the
corn which he has caused to be ruined.
54. If he be not able to replace the corn, then he and his posses-
sions shall be divided among the farmers whose corn he has
ooded.
55. If any one open his ditches to water his crop, but is careless,
and the water ood the eld of his neighbor, then he shall
pay his neighbor corn for his loss.
56. If a man let in the water, and the water over ow the plan-
tation of his neighbor, he shall pay ten gur of corn for every
ten gan of land.
57. If a shepherd, without the permission of the owner of the
eld, and without the knowledge of the owner of the sheep,
lets the sheep into a eld to graze, then the owner of the eld
shall harvest his crop, and the shepherd, who had pastured
his ock there without permission of the owner of the eld,
shall pay to the owner twenty gur of corn for every ten gan.
58. If after the ocks have left the pasture and been shut up
in the common fold at the city gate, any shepherd let them
into a eld and they graze there, this shepherd shall take
possession of the eld which he has allowed to be grazed on,
and at the harvest he must pay sixty gur of corn for every
ten gan.
59. If any man, without the knowledge of the owner of a garden,
fell a tree in a garden he shall pay half a mina in money.
60. If any one give over a eld to a gardener, for him to plant it
as a garden, if he work at it, and care for it for four years,
in the fth year the owner and the gardener shall divide it,
the owner taking his part in charge.
61. If the gardener has not completed the planting of the eld,
leaving one part unused, this shall be assigned to him as his.
62. If he do not plant the eld that was given over to him as a
garden, if it be arable land (for corn or sesame) the gardener
shall pay the owner the produce of the eld for the years that
c Paulo J. S. Pereira, MMXI 12
he let it lie fallow, according to the product of neighboring
elds, put the eld in arable condition and return it to its
owner.
63. If he transform waste land into arable elds and return it to
its owner, the latter shall pay him for one year ten gur for
ten gan.
64. If any one hand over his garden to a gardener to work, the
gardener shall pay to its owner two-thirds of the produce of
the garden, for so long as he has it in possession, and the
other third shall he keep.
65. If the gardener do not work in the garden and the product fall
o , the gardener shall pay in proportion to other neighboring
gardens. [Here a portion of the text is missing, apparently
comprising thirty-four paragraphs.]
100. : : : interest for the money, as much as he has received, he
shall give a note therefor, and on the day, when they settle,
pay to the merchant.
101. If there are no mercantile arrangements in the place whither
he went, he shall leave the entire amount of money which he
received with the broker to give to the merchant.
102. If a merchant entrust money to an agent (broker) for some
investment, and the broker su er a loss in the place to which
he goes, he shall make good the capital to the merchant.
103. If, while on the journey, an enemy take away from him any-
thing that he had, the broker shall swear by God and be free
of obligation.
104. If a merchant give an agent corn, wool, oil, or any other goods
to transport, the agent shall give a receipt for the amount,
and compensate the merchant therefor. Then he shall obtain
a receipt form the merchant for the money that he gives the
merchant.
105. If the agent is careless, and does not take a receipt for the
money which he gave the merchant, he can not consider the
unreceipted money as his own.
c Paulo J. S. Pereira, MMXI 13
106. If the agent accept money from the merchant, but have a
quarrel with the merchant (denying the receipt), then shall
the merchant swear before God and witnesses that he has
given this money to the agent, and the agent shall pay him
three times the sum.
107. If the merchant cheat the agent, in that as the latter has
returned to him all that had been given him, but the mer-
chant denies the receipt of what had been returned to him,
then shall this agent convict the merchant before God and
the judges, and if he still deny receiving what the agent had
given him shall pay six times the sum to the agent.
108. If a tavern-keeper (feminine) does not accept corn according
to gross weight in payment of drink, but takes money, and
the price of the drink is less than that of the corn, she shall
be convicted and thrown into the water.
109. If conspirators meet in the house of a tavern-keeper, and
these conspirators are not captured and delivered to the
court, the tavern-keeper shall be put to death.
110. If a \sister of a god” open a tavern, or enter a tavern to
drink, then shall this woman be burned to death.
111. If an inn-keeper furnish sixty ka of usakani-drink to : : : she
shall receive fty ka of corn at the harvest.
112. If any one be on a journey and entrust silver, gold, precious
stones, or any movable property to another, and wish to
recover it from him; if the latter do not bring all of the
property to the appointed place, but appropriate it to his
own use, then shall this man, who did not bring the property
to hand it over, be convicted, and he shall pay vefold for
all that had been entrusted to him.
113. If any one have consignment of corn or money, and he take
from the granary or box without the knowledge of the owner,
then shall he who took corn without the knowledge of the
owner out of the granary or money out of the box be legally
convicted, and repay the corn he has taken. And he shall
lose whatever commission was paid to him, or due him.
c Paulo J. S. Pereira, MMXI 14
114. If a man have no claim on another for corn and money, and
try to demand it by force, he shall pay one-third of a mina
of silver in every case.
115. If any one have a claim for corn or money upon another and
imprison him; if the prisoner die in prison a natural death,
the case shall go no further.
116. If the prisoner die in prison from blows or maltreatment, the
master of the prisoner shall convict the merchant before the
judge. If he was a free-born man, the son of the merchant
shall be put to death; if it was a slave, he shall pay one-third
of a mina of gold, and all that the master of the prisoner
gave he shall forfeit.
117. If any one fail to meet a claim for debt, and sell himself, his
wife, his son, and daughter for money or give them away to
forced labor: they shall work for three years in the house
of the man who bought them, or the proprietor, and in the
fourth year they shall be set free.
118. If he give a male or female slave away for forced labor, and
the merchant sublease them, or sell them for money, no ob-
jection can be raised.
119. If any one fail to meet a claim for debt, and he sell the maid
servant who has borne him children, for money, the money
which the merchant has paid shall be repaid to him by the
owner of the slave and she shall be freed.
120. If any one store corn for safe keeping in another person’s
house, and any harm happen to the corn in storage, or if
the owner of the house open the granary and take some of
the corn, or if especially he deny that the corn was stored
in his house: then the owner of the corn shall claim his corn
before God (on oath), and the owner of the house shall pay
its owner for all of the corn that he took.
121. If any one store corn in another man’s house he shall pay
him storage at the rate of one gur for every ve ka of corn
per year.
c Paulo J. S. Pereira, MMXI 15
122. If any one give another silver, gold, or anything else to keep,
he shall show everything to some witness, draw up a contract,
and then hand it over for safe keeping.
123. If he turn it over for safe keeping without witness or contract,
and if he to whom it was given deny it, then he has no
legitimate claim.
124. If any one deliver silver, gold, or anything else to another
for safe keeping, before a witness, but he deny it, he shall be
brought before a judge, and all that he has denied he shall
pay in full.
125. If any one place his property with another for safe keeping,
and there, either through thieves or robbers, his property
and the property of the other man be lost, the owner of
the house, through whose neglect the loss took place, shall
compensate the owner for all that was given to him in charge.
But the owner of the house shall try to follow up and recover
his property, and take it away from the thief.
126. If any one who has not lost his goods state that they have
been lost, and make false claims: if he claim his goods and
amount of injury before God, even though he has not lost
them, he shall be fully compensated for all his loss claimed.
(I.e., the oath is all that is needed.)
127. If any one \point the nger” (slander) at a sister of a god or
the wife of any one, and can not prove it, this man shall be
taken before the judges and his brow shall be marked. (by
cutting the skin, or perhaps hair.)
128. If a man take a woman to wife, but have no intercourse with
her, this woman is no wife to him.
129. If a man’s wife be surprised (in agrante delicto) with an-
other man, both shall be tied and thrown into the water, but
the husband may pardon his wife and the king his slaves.
130. If a man violate the wife (betrothed or child-wife) of another
man, who has never known a man, and still lives in her fa-
ther’s house, and sleep with her and be surprised, this man
shall be put to death, but the wife is blameless.
c Paulo J. S. Pereira, MMXI 16
131. If a man bring a charge against one’s wife, but she is not
surprised with another man, she must take an oath and then
may return to her house.
132. If the \ nger is pointed” at a man’s wife about another man,
but she is not caught sleeping with the other man, she shall
jump into the river for her husband.
133. If a man is taken prisoner in war, and there is a sustenance
in his house, but his wife leave house and court, and go to
another house: because this wife did not keep her court, and
went to another house, she shall be judicially condemned and
thrown into the water.
134. If any one be captured in war and there is not sustenance in
his house, if then his wife go to another house this woman
shall be held blameless.
135. If a man be taken prisoner in war and there be no sustenance
in his house and his wife go to another house and bear chil-
dren; and if later her husband return and come to his home:
then this wife shall return to her husband, but the children
follow their father.
136. If any one leave his house, run away, and then his wife go to
another house, if then he return, and wishes to take his wife
back: because he ed from his home and ran away, the wife
of this runaway shall not return to her husband.
137. If a man wish to separate from a woman who has borne him
children, or from his wife who has borne him children: then
he shall give that wife her dowry, and a part of the usufruct of
eld, garden, and property, so that she can rear her children.
When she has brought up her children, a portion of all that
is given to the children, equal as that of one son, shall be
given to her. She may then marry the man of her heart.
138. If a man wishes to separate from his wife who has borne him
no children, he shall give her the amount of her purchase
money and the dowry which she brought from her father’s
house, and let her go.
c Paulo J. S. Pereira, MMXI 17
139. If there was no purchase price he shall give her one mina of
gold as a gift of release.
140. If he be a freed man he shall give her one-third of a mina of
gold.
141. If a man’s wife, who lives in his house, wishes to leave it,
plunges into debt, tries to ruin her house, neglects her hus-
band, and is judicially convicted: if her husband o er her
release, she may go on her way, and he gives her nothing as
a gift of release. If her husband does not wish to release her,
and if he take another wife, she shall remain as servant in
her husband’s house.
142. If a woman quarrel with her husband, and say: \You are
not congenial to me,” the reasons for her prejudice must be
presented. If she is guiltless, and there is no fault on her
part, but he leaves and neglects her, then no guilt attaches
to this woman, she shall take her dowry and go back to her
father’s house.
143. If she is not innocent, but leaves her husband, and ruins her
house, neglecting her husband, this woman shall be cast into
the water.
144. If a man take a wife and this woman give her husband a
maid-servant, and she bear him children, but this man wishes
to take another wife, this shall not be permitted to him; he
shall not take a second wife.
145. If a man take a wife, and she bear him no children, and he
intend to take another wife: if he take this second wife, and
bring her into the house, this second wife shall not be allowed
equality with his wife.
146. If a man take a wife and she give this man a maid-servant as
wife and she bear him children, and then this maid assume
equality with the wife: because she has borne him children
her master shall not sell her for money, but he may keep her
as a slave, reckoning her among the maid-servants.
147. If she have not borne him children, then her mistress may
sell her for money.
c Paulo J. S. Pereira, MMXI 18
148. If a man take a wife, and she be seized by disease, if he then
desire to take a second wife he shall not put away his wife,
who has been attacked by disease, but he shall keep her in
the house which he has built and support her so long as she
lives.
149. If this woman does not wish to remain in her husband’s
house, then he shall compensate her for the dowry that she
brought with her from her father’s house, and she may go.
150. If a man give his wife a eld, garden, and house and a deed
therefor, if then after the death of her husband the sons raise
no claim, then the mother may bequeath all to one of her sons
whom she prefers, and need leave nothing to his brothers.
151. If a woman who lived in a man’s house made an agreement
with her husband, that no creditor can arrest her, and has
given a document therefor: if that man, before he married
that woman, had a debt, the creditor can not hold the woman
for it. But if the woman, before she entered the man’s house,
had contracted a debt, her creditor can not arrest her hus-
band therefor.
152. If after the woman had entered the man’s house, both con-
tracted a debt, both must pay the merchant.
153. If the wife of one man on account of another man has their
mates (her husband and the other man’s wife) murdered,
both of them shall be impaled.
154. If a man be guilty of incest with his daughter, he shall be
driven from the place (exiled).
155. If a man betroth a girl to his son, and his son have intercourse
with her, but he (the father) afterward de le her, and be
surprised, then he shall be bound and cast into the water
(drowned).
156. If a man betroth a girl to his son, but his son has not known
her, and if then he de le her, he shall pay her half a gold
mina, and compensate her for all that she brought out of her
father’s house. She may marry the man of her heart.
c Paulo J. S. Pereira, MMXI 19
157. If any one be guilty of incest with his mother after his father,
both shall be burned.
158. If any one be surprised after his father with his chief wife,
who has borne children, he shall be driven out of his father’s
house.
159. If any one, who has brought chattels into his father-in-law’s
house, and has paid the purchase-money, looks for another
wife, and says to his father-in-law: \I do not want your
daughter,” the girl’s father may keep all that he had brought.
160. If a man bring chattels into the house of his father-in-law,
and pay the \purchase price” (for his wife): if then the father
of the girl say: \I will not give you my daughter,” he shall
give him back all that he brought with him.
161. If a man bring chattels into his father-in-law’s house and
pay the \purchase price,” if then his friend slander him, and
his father-in-law say to the young husband: \You shall not
marry my daughter,” the he shall give back to him undimin-
ished all that he had brought with him; but his wife shall
not be married to the friend.
162. If a man marry a woman, and she bear sons to him; if then
this woman die, then shall her father have no claim on her
dowry; this belongs to her sons.
163. If a man marry a woman and she bear him no sons; if then
this woman die, if the \purchase price” which he had paid
into the house of his father-in-law is repaid to him, her hus-
band shall have no claim upon the dowry of this woman; it
belongs to her father’s house.
164. If his father-in-law do not pay back to him the amount of the
\purchase price” he may subtract the amount of the \Pur-
chase price” from the dowry, and then pay the remainder to
her father’s house.
165. If a man give to one of his sons whom he prefers a eld,
garden, and house, and a deed therefor: if later the father
die, and the brothers divide the estate, then they shall rst
c Paulo J. S. Pereira, MMXI 20
give him the present of his father, and he shall accept it; and
the rest of the paternal property shall they divide.
166. If a man take wives for his son, but take no wife for his
minor son, and if then he die: if the sons divide the estate,
they shall set aside besides his portion the money for the
\purchase price” for the minor brother who had taken no
wife as yet, and secure a wife for him.
167. If a man marry a wife and she bear him children: if this wife
die and he then take another wife and she bear him children:
if then the father die, the sons must not partition the estate
according to the mothers, they shall divide the dowries of
their mothers only in this way; the paternal estate they shall
divide equally with one another.
168. If a man wish to put his son out of his house, and declare
before the judge: \I want to put my son out,” then the judge
shall examine into his reasons. If the son be guilty of no great
fault, for which he can be rightfully put out, the father shall
not put him out.
169. If he be guilty of a grave fault, which should rightfully deprive
him of the lial relationship, the father shall forgive him the
rst time; but if he be guilty of a grave fault a second time
the father may deprive his son of all lial relation.
170. If his wife bear sons to a man, or his maid-servant have borne
sons, and the father while still living says to the children
whom his maid-servant has borne: \My sons,” and he count
them with the sons of his wife; if then the father die, then
the sons of the wife and of the maid-servant shall divide the
paternal property in common. The son of the wife is to
partition and choose.
171. If, however, the father while still living did not say to the
sons of the maid-servant: \My sons,” and then the father
dies, then the sons of the maid-servant shall not share with
the sons of the wife, but the freedom of the maid and her sons
shall be granted. The sons of the wife shall have no right to
enslave the sons of the maid; the wife shall take her dowry
c Paulo J. S. Pereira, MMXI 21
(from her father), and the gift that her husband gave her and
deeded to her (separate from dowry, or the purchase-money
paid her father), and live in the home of her husband: so long
as she lives she shall use it, it shall not be sold for money.
Whatever she leaves shall belong to her children.
172. If her husband made her no gift, she shall be compensated for
her gift, and she shall receive a portion from the estate of her
husband, equal to that of one child. If her sons oppress her,
to force her out of the house, the judge shall examine into
the matter, and if the sons are at fault the woman shall not
leave her husband’s house. If the woman desire to leave the
house, she must leave to her sons the gift which her husband
gave her, but she may take the dowry of her father’s house.
Then she may marry the man of her heart.
173. If this woman bear sons to her second husband, in the place
to which she went, and then die, her earlier and later sons
shall divide the dowry between them.
174. If she bear no sons to her second husband, the sons of her
rst husband shall have the dowry.
175. If a State slave or the slave of a freed man marry the daughter
of a free man, and children are born, the master of the slave
shall have no right to enslave the children of the free.
176. If, however, a State slave or the slave of a freed man marry a
man’s daughter, and after he marries her she bring a dowry
from a father’s house, if then they both enjoy it and found a
household, and accumulate means, if then the slave die, then
she who was free born may take her dowry, and all that her
husband and she had earned; she shall divide them into two
parts, one-half the master for the slave shall take, and the
other half shall the free-born woman take for her children. If
the free-born woman had no gift she shall take all that her
husband and she had earned and divide it into two parts;
and the master of the slave shall take one-half and she shall
take the other for her children.
c Paulo J. S. Pereira, MMXI 22
177. If a widow, whose children are not grown, wishes to enter
another house (remarry), she shall not enter it without the
knowledge of the judge. If she enter another house the judge
shall examine the state of the house of her rst husband.
Then the house of her rst husband shall be entrusted to the
second husband and the woman herself as managers. And
a record must be made thereof. She shall keep the house
in order, bring up the children, and not sell the house-hold
utensils. He who buys the utensils of the children of a widow
shall lose his money, and the goods shall return to their own-
ers.
178. If a \devoted woman” or a prostitute to whom her father
has given a dowry and a deed therefor, but if in this deed it
is not stated that she may bequeath it as she pleases, and
has not explicitly stated that she has the right of disposal;
if then her father die, then her brothers shall hold her eld
and garden, and give her corn, oil, and milk according to
her portion, and satisfy her. If her brothers do not give her
corn, oil, and milk according to her share, then her eld and
garden shall support her. She shall have the usufruct of eld
and garden and all that her father gave her so long as she
lives, but she can not sell or assign it to others. Her position
of inheritance belongs to her brothers.
179. If a \sister of a god,” or a prostitute, receive a gift from her
father, and a deed in which it has been explicitly stated that
she may dispose of it as she pleases, and give her complete
disposition thereof: if then her father die, then she may leave
her property to whomsoever she pleases. Her brothers can
raise no claim thereto.
180. If a father give a present to his daughter{either marriageable
or a prostitute unmarriageable){and then die, then she is to
receive a portion as a child from the paternal estate, and
enjoy its usufruct so long as she lives. Her estate belongs to
her brothers.
c Paulo J. S. Pereira, MMXI 23
181. If a father devote a temple-maid or temple-virgin to God
and give her no present: if then the father die, she shall
receive the third of a child’s portion from the inheritance of
her father’s house, and enjoy its usufruct so long as she lives.
Her estate belongs to her brothers.
182. If a father devote his daughter as a wife of Mardi of Babylon
(as in 181), and give her no present, nor a deed; if then her
father die, then shall she receive one-third of her portion as
a child of her father’s house from her brothers, but Marduk
may leave her estate to whomsoever she wishes.
183. If a man give his daughter by a concubine a dowry, and a
husband, and a deed; if then her father die, she shall receive
no portion from the paternal estate.
184. If a man do not give a dowry to his daughter by a concubine,
and no husband; if then her father die, her brother shall give
her a dowry according to her father’s wealth and secure a
husband for her.
185. If a man adopt a child and to his name as son, and rear him,
this grown son can not be demanded back again.
186. If a man adopt a son, and if after he has taken him he injure
his foster father and mother, then this adopted son shall
return to his father’s house.
187. The son of a paramour in the palace service, or of a prosti-
tute, can not be demanded back.
188. If an artizan has undertaken to rear a child and teaches him
his craft, he can not be demanded back.
189. If he has not taught him his craft, this adopted son may
return to his father’s house.
190. If a man does not maintain a child that he has adopted as a
son and reared with his other children, then his adopted son
may return to his father’s house.
191. If a man, who had adopted a son and reared him, founded
a household, and had children, wish to put this adopted son
out, then this son shall not simply go his way. His adoptive
c Paulo J. S. Pereira, MMXI 24
father shall give him of his wealth one-third of a child’s por-
tion, and then he may go. He shall not give him of the eld,
garden, and house.
192. If a son of a paramour or a prostitute say to his adoptive
father or mother: \You are not my father, or my mother,”
his tongue shall be cut o .
193. If the son of a paramour or a prostitute desire his father’s
house, and desert his adoptive father and adoptive mother,
and goes to his father’s house, then shall his eye be put out.
194. If a man give his child to a nurse and the child die in her
hands, but the nurse unbeknown to the father and mother
nurse another child, then they shall convict her of having
nursed another child without the knowledge of the father
and mother and her breasts shall be cut o .
195. If a son strike his father, his hands shall be hewn o .
196. If a man put out the eye of another man, his eye shall be put
out. [ An eye for an eye ]
197. If he break another man’s bone, his bone shall be broken.
198. If he put out the eye of a freed man, or break the bone of a
freed man, he shall pay one gold mina.
199. If he put out the eye of a man’s slave, or break the bone of
a man’s slave, he shall pay one-half of its value.
200. If a man knock out the teeth of his equal, his teeth shall be
knocked out. [ A tooth for a tooth ]
201. If he knock out the teeth of a freed man, he shall pay one-
third of a gold mina.
202. If any one strike the body of a man higher in rank than he,
he shall receive sixty blows with an ox-whip in public.
203. If a free-born man strike the body of another free-born man
or equal rank, he shall pay one gold mina.
204. If a freed man strike the body of another freed man, he shall
pay ten shekels in money.
205. If the slave of a freed man strike the body of a freed man,
his ear shall be cut o .
c Paulo J. S. Pereira, MMXI 25
206. If during a quarrel one man strike another and wound him,
then he shall swear, \I did not injure him wittingly,” and
pay the physicians.
207. If the man die of his wound, he shall swear similarly, and if
he (the deceased) was a free-born man, he shall pay half a
mina in money.
208. If he was a freed man, he shall pay one-third of a mina.
209. If a man strike a free-born woman so that she lose her unborn
child, he shall pay ten shekels for her loss.
210. If the woman die, his daughter shall be put to death.
211. If a woman of the free class lose her child by a blow, he shall
pay ve shekels in money.
212. If this woman die, he shall pay half a mina.
213. If he strike the maid-servant of a man, and she lose her child,
he shall pay two shekels in money.
214. If this maid-servant die, he shall pay one-third of a mina.
215. If a physician make a large incision with an operating knife
and cure it, or if he open a tumor (over the eye) with an
operating knife, and saves the eye, he shall receive ten shekels
in money.
216. If the patient be a freed man, he receives ve shekels.
217. If he be the slave of some one, his owner shall give the physi-
cian two shekels.
218. If a physician make a large incision with the operating knife,
and kill him, or open a tumor with the operating knife, and
cut out the eye, his hands shall be cut o .
219. If a physician make a large incision in the slave of a freed
man, and kill him, he shall replace the slave with another
slave.
220. If he had opened a tumor with the operating knife, and put
out his eye, he shall pay half his value.
221. If a physician heal the broken bone or diseased soft part of
a man, the patient shall pay the physician ve shekels in
money.
222. If he were a freed man he shall pay three shekels.
c Paulo J. S. Pereira, MMXI 26
223. If he were a slave his owner shall pay the physician two
shekels.
224. If a veterinary surgeon perform a serious operation on an
ass or an ox, and cure it, the owner shall pay the surgeon
one-sixth of a shekel as a fee.
225. If he perform a serious operation on an ass or ox, and kill it,
he shall pay the owner one-fourth of its value.
226. If a barber, without the knowledge of his master, cut the
sign of a slave on a slave not to be sold, the hands of this
barber shall be cut o .
227. If any one deceive a barber, and have him mark a slave not
for sale with the sign of a slave, he shall be put to death,
and buried in his house. The barber shall swear: \I did not
mark him wittingly,” and shall be guiltless.
228. If a builder build a house for some one and complete it, he
shall give him a fee of two shekels in money for each sar of
surface.
229. If a builder build a house for some one, and does not con-
struct it properly, and the house which he built fall in and
kill its owner, then that builder shall be put to death.
230. If it kill the son of the owner the son of that builder shall be
put to death.
231. If it kill a slave of the owner, then he shall pay slave for slave
to the owner of the house.
232. If it ruin goods, he shall make compensation for all that has
been ruined, and inasmuch as he did not construct properly
this house which he built and it fell, he shall re-erect the
house from his own means.
233. If a builder build a house for some one, even though he has
not yet completed it; if then the walls seem toppling, the
builder must make the walls solid from his own means.
234. If a shipbuilder build a boat of sixty gur for a man, he shall
pay him a fee of two shekels in money.
235. If a shipbuilder build a boat for some one, and do not make
it tight, if during that same year that boat is sent away and
c Paulo J. S. Pereira, MMXI 27
su ers injury, the shipbuilder shall take the boat apart and
put it together tight at his own expense. The tight boat he
shall give to the boat owner.
236. If a man rent his boat to a sailor, and the sailor is careless,
and the boat is wrecked or goes aground, the sailor shall give
the owner of the boat another boat as compensation.
237. If a man hire a sailor and his boat, and provide it with corn,
clothing, oil and dates, and other things of the kind needed
for tting it: if the sailor is careless, the boat is wrecked, and
its contents ruined, then the sailor shall compensate for the
boat which was wrecked and all in it that he ruined.
238. If a sailor wreck any one’s ship, but saves it, he shall pay the
half of its value in money.
239. If a man hire a sailor, he shall pay him six gur of corn per
year.
240. If a merchantman run against a ferryboat, and wreck it, the
master of the ship that was wrecked shall seek justice before
God; the master of the merchantman, which wrecked the
ferryboat, must compensate the owner for the boat and all
that he ruined.
241. If any one impresses an ox for forced labor, he shall pay
one-third of a mina in money.
242. If any one hire oxen for a year, he shall pay four gur of corn
for plow-oxen.
243. As rent of herd cattle he shall pay three gur of corn to the
owner.
244. If any one hire an ox or an ass, and a lion kill it in the eld,
the loss is upon its owner.
245. If any one hire oxen, and kill them by bad treatment or
blows, he shall compensate the owner, oxen for oxen.
246. If a man hire an ox, and he break its leg or cut the ligament
of its neck, he shall compensate the owner with ox for ox.
247. If any one hire an ox, and put out its eye, he shall pay the
owner one-half of its value.
c Paulo J. S. Pereira, MMXI 28
248. If any one hire an ox, and break o a horn, or cut o its
tail, or hurt its muzzle, he shall pay one-fourth of its value
in money.
249. If any one hire an ox, and God strike it that it die, the man
who hired it shall swear by God and be considered guiltless.
250. If while an ox is passing on the street (market) some one
push it, and kill it, the owner can set up no claim in the suit
(against the hirer).
251. If an ox be a goring ox, and it shown that he is a gorer, and
he do not bind his horns, or fasten the ox up, and the ox gore
a free-born man and kill him, the owner shall pay one-half a
mina in money.
252. If he kill a man’s slave, he shall pay one-third of a mina.
253. If any one agree with another to tend his eld, give him seed,
entrust a yoke of oxen to him, and bind him to cultivate the
eld, if he steal the corn or plants, and take them for himself,
his hands shall be hewn o .
254. If he take the seed-corn for himself, and do not use the yoke
of oxen, he shall compensate him for the amount of the seed-
corn.
255. If he sublet the man’s yoke of oxen or steal the seed-corn,
planting nothing in the eld, he shall be convicted, and for
each one hundred gan he shall pay sixty gur of corn.
256. If his community will not pay for him, then he shall be placed
in that eld with the cattle (at work).
257. If any one hire a eld laborer, he shall pay him eight gur of
corn per year.
258. If any one hire an ox-driver, he shall pay him six gur of corn
per year.
259. If any one steal a water-wheel from the eld, he shall pay
ve shekels in money to its owner.
260. If any one steal a shadduf (used to draw water from the river
or canal) or a plow, he shall pay three shekels in money.
261. If any one hire a herdsman for cattle or sheep, he shall pay
him eight gur of corn per annum.
c Paulo J. S. Pereira, MMXI 29
262. If any one, a cow or a sheep : : :
263. If he kill the cattle or sheep that were given to him, he shall
compensate the owner with cattle for cattle and sheep for
sheep.
264. If a herdsman, to whom cattle or sheep have been entrusted
for watching over, and who has received his wages as agreed
upon, and is satis ed, diminish the number of the cattle
or sheep, or make the increase by birth less, he shall make
good the increase or pro t which was lost in the terms of
settlement.
265. If a herdsman, to whose care cattle or sheep have been en-
trusted, be guilty of fraud and make false returns of the
natural increase, or sell them for money, then shall he be
convicted and pay the owner ten times the loss.
266. If the animal be killed in the stable by God ( an accident),
or if a lion kill it, the herdsman shall declare his innocence
before God, and the owner bears the accident in the stable.
267. If the herdsman overlook something, and an accident happen
in the stable, then the herdsman is at fault for the accident
which he has caused in the stable, and he must compensate
the owner for the cattle or sheep.
268. If any one hire an ox for threshing, the amount of the hire is
twenty ka of corn.
269. If he hire an ass for threshing, the hire is twenty ka of corn.
270. If he hire a young animal for threshing, the hire is ten ka of
corn.
271. If any one hire oxen, cart and driver, he shall pay one hun-
dred and eighty ka of corn per day.
272. If any one hire a cart alone, he shall pay forty ka of corn per
day.
273. If any one hire a day laborer, he shall pay him from the New
Year until the fth month (April to August, when days are
long and the work hard) six gerahs in money per day; from
the sixth month to the end of the year he shall give him ve
gerahs per day.
c Paulo J. S. Pereira, MMXI 30
274. If any one hire a skilled artizan, he shall pay as wages of the
: : : ve gerahs, as wages of the potter ve gerahs, of a tailor
ve gerahs, of : : : gerahs, : : : of a ropemaker four gerahs, of
: : :. gerahs, of a mason : : : gerahs per day.
275. If any one hire a ferryboat, he shall pay three gerahs in money
per day.
276. If he hire a freight-boat, he shall pay two and one-half gerahs
per day.
277. If any one hire a ship of sixty gur, he shall pay one-sixth of
a shekel in money as its hire per day.
278. If any one buy a male or female slave, and before a month
has elapsed the benu-disease be developed, he shall return
the slave to the seller, and receive the money which he had
paid.
279. If any one buy a male or female slave, and a third party claim
it, the seller is liable for the claim.
280. If while in a foreign country a man buy a male or female
slave belonging to another of his own country; if when he
return home the owner of the male or female slave recognize
it: if the male or female slave be a native of the country, he
shall give them back without any money.
281. If they are from another country, the buyer shall declare the
amount of money paid therefor to the merchant, and keep
the male or female slave.
282. If a slave say to his master: \You are not my master,” if they
convict him his master shall cut o his ear.
c Paulo J. S. Pereira, MMXI 31
THE EPILOGUE
Laws of justice which Hammurabi, the wise king, established. A
righteous law, and pious statute did he teach the land. Ham-
murabi, the protecting king am I. I have not withdrawn myself
from the men, whom Bel gave to me, the rule over whom Mar-
duk gave to me, I was not negligent, but I made them a peace-
ful abiding-place. I expounded all great diculties, I made the
light shine upon them. With the mighty weapons which Zamama
and Ishtar entrusted to me, with the keen vision with which Ea
endowed me, with the wisdom that Marduk gave me, I have up-
rooted the enemy above and below (in north and south), subdued
the earth, brought prosperity to the land, guaranteed security to
the inhabitants in their homes; a disturber was not permitted.
The great gods have called me, I am the salvation-bearing shep-
herd, whose sta is straight, the good shadow that is spread over
my city; on my breast I cherish the inhabitants of the land of
Sumer and Akkad; in my shelter I have let them repose in peace;
in my deep wisdom have I enclosed them. That the strong might
not injure the weak, in order to protect the widows and orphans,
I have in Babylon the city where Anu and Bel raise high their
head, in E-Sagil, the Temple, whose foundations stand rm as
heaven and earth, in order to bespeak justice in the land, to set-
tle all disputes, and heal all injuries, set up these my precious
words, written upon my memorial stone, before the image of me,
as king of righteousness.
The king who ruleth among the kings of the cities am I. My
words are well considered; there is no wisdom like unto mine. By
the command of Shamash, the great judge of heaven and earth,
let righteousness go forth in the land: by the order of Marduk, my
lord, let no destruction befall my monument. In E-Sagil, which
I love, let my name be ever repeated; let the oppressed, who has
a case at law, come and stand before this my image as king of
c Paulo J. S. Pereira, MMXI 32
righteousness; let him read the inscription, and understand my
precious words: the inscription will explain his case to him; he
will nd out what is just, and his heart will be glad, so that he
will say:
\Hammurabi is a ruler, who is as a father to his subjects,
who holds the words of Marduk in reverence, who has achieved
conquest for Marduk over the north and south, who rejoices the
heart of Marduk, his lord, who has bestowed bene ts for ever and
ever on his subjects, and has established order in the land.”
When he reads the record, let him pray with full heart to
Marduk, my lord, and Zarpanit, my lady; and then shall the
protecting deities and the gods, who frequent E-Sagil, graciously
grant the desires daily presented before Marduk, my lord, and
Zarpanit, my lady.
In future time, through all coming generations, let the king,
who may be in the land, observe the words of righteousness which
I have written on my monument; let him not alter the law of the
land which I have given, the edicts which I have enacted; my
monument let him not mar. If such a ruler have wisdom, and be
able to keep his land in order, he shall observe the words which I
have written in this inscription; the rule, statute, and law of the
land which I have given; the decisions which I have made will this
inscription show him; let him rule his subjects accordingly, speak
justice to them, give right decisions, root out the miscreants and
criminals from this land, and grant prosperity to his subjects.
Hammurabi, the king of righteousness, on whom Shamash
has conferred right (or law) am I. My words are well consid-
ered; my deeds are not equaled; to bring low those that were
high; to humble the proud, to expel insolence. If a succeeding
ruler considers my words, which I have written in this my in-
scription, if he do not annul my law, nor corrupt my words, nor
change my monument, then may Shamash lengthen that king’s
reign, as he has that of me, the king of righteousness, that he
may reign in righteousness over his subjects. If this ruler do not
esteem my words, which I have written in my inscription, if he
c Paulo J. S. Pereira, MMXI 33
despise my curses, and fear not the curse of God, if he destroy
the law which I have given, corrupt my words, change my mon-
ument, e ace my name, write his name there, or on account of
the curses commission another so to do, that man, whether king
or ruler, patesi, or commoner, no matter what he be, may the
great God (Anu), the Father of the gods, who has ordered my
rule, withdraw from him the glory of royalty, break his scepter,
curse his destiny. May Bel, the lord, who xeth destiny, whose
command can not be altered, who has made my kingdom great,
order a rebellion which his hand can not control; may he let the
wind of the overthrow of his habitation blow, may he ordain the
years of his rule in groaning, years of scarcity, years of famine,
darkness without light, death with seeing eyes be fated to him;
may he (Bel) order with his potent mouth the destruction of his
city, the dispersion of his subjects, the cutting o of his rule,
the removal of his name and memory from the land. May Be-
lit, the great Mother, whose command is potent in E-Kur (the
Babylonian Olympus), the Mistress, who harkens graciously to
my petitions, in the seat of judgment and decision (where Bel
xes destiny), turn his a airs evil before Bel, and put the dev-
astation of his land, the destruction of his subjects, the pouring
out of his life like water into the mouth of King Bel. May Ea,
the great ruler, whose fated decrees come to pass, the thinker of
the gods, the omniscient, who maketh long the days of my life,
withdraw understanding and wisdom from him, lead him to for-
getfulness, shut up his rivers at their sources, and not allow corn
or sustenance for man to grow in his land. May Shamash, the
great Judge of heaven and earth, who supporteth all means of
livelihood, Lord of life-courage, shatter his dominion, annul his
law, destroy his way, make vain the march of his troops, send him
in his visions forecasts of the uprooting of the foundations of his
throne and of the destruction of his land. May the condemnation
of Shamash overtake him forthwith; may he be deprived of water
above among the living, and his spirit below in the earth. May
Sin (the Moon-god), the Lord of Heaven, the divine father, whose
c Paulo J. S. Pereira, MMXI 34
crescent gives light among the gods, take away the crown and re-
gal throne from him; may he put upon him heavy guilt, great
decay, that nothing may be lower than he. May he destine him
as fated, days, months and years of dominion lled with sighing
and tears, increase of the burden of dominion, a life that is like
unto death. May Adad, the lord of fruitfulness, ruler of heaven
and earth, my helper, withhold from him rain from heaven, and
the ood of water from the springs, destroying his land by famine
and want; may he rage mightily over his city, and make his land
into ood-hills (heaps of ruined cities). May Zamama, the great
warrior, the rst-born son of E-Kur, who goeth at my right hand,
shatter his weapons on the eld of battle, turn day into night for
him, and let his foe triumph over him. May Ishtar, the goddess
of ghting and war, who unfetters my weapons, my gracious pro-
tecting spirit, who loveth my dominion, curse his kingdom in her
angry heart; in her great wrath, change his grace into evil, and
shatter his weapons on the place of ghting and war. May she
create disorder and sedition for him, strike down his warriors,
that the earth may drink their blood, and throw down the piles
of corpses of his warriors on the eld; may she not grant him a life
of mercy, deliver him into the hands of his enemies, and imprison
him in the land of his enemies. May Nergal, the might among
the gods, whose contest is irresistible, who grants me victory, in
his great might burn up his subjects like a slender reedstalk, cut
o his limbs with his mighty weapons, and shatter him like an
earthen image. May Nin-tu, the sublime mistress of the lands,
the fruitful mother, deny him a son, vouchsafe him no name, give
him no successor among men. May Nin-karak, the daughter of
Anu, who adjudges grace to me, cause to come upon his members
in E-kur high fever, severe wounds, that can not be healed, whose
nature the physician does not understand, which he can not treat
with dressing, which, like the bite of death, can not be removed,
until they have sapped away his life.
May he lament the loss of his life-power, and may the great
gods of heaven and earth, the Anunaki, altogether in ict a curse
c Paulo J. S. Pereira, MMXI 35
and evil upon the con nes of the temple, the walls of this E-barra
(the Sun temple of Sippara), upon his dominion, his land, his
warriors, his subjects, and his troops. May Bel curse him with
the potent curses of his mouth that can not be altered, and may
they come upon him forthwith.
c Paulo J. S. Pereira, MMXI 36

In the case of WELCH v. CROW, 2009 OK 20, 206 P.3d 599 Decided: 03/31/2009 THE SUPREME COURT OF THE STATE OF OKLAHOMADYLAN WELCH and HILLARY found that on April 12, 1995, a mother created her revocable trust and executed a pour-over will. Pour over wills are never intended to be probated, since all of the property is supposed to be owned in the revocable trust.

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The only problem is that the mother had a deceased son who left issue that she didn’t leave anything to in her trust or in her will. Neither the will nor the Trust made any provision for her deceased son’s issue. The grandchildren fought the will and trust. They claimed they were entitled to a share of the Trust as pretermitted heirs or that the Trust was illusory.

The Supreme Court held that: 1) Oklahoma’s pretermitted heirs statute, 84 O.S. 2001 §132, is not applicable to revocable inter vivos trusts; and 2) because the Trust provided for contingent beneficiaries, it was not illusory simply because Neighbors was the sole trustee and the only vested present beneficiary.
The mother her revocable trust and she was the sole trustee and only vested beneficiary during her life. Upon its creation, some of her property was conveyed into the Trust. The terms of the Trust provided that at the time of her death, the successor trustees were to be her daughters, and her son-in-law, collectively, the trustees. After the Trust paid the expenses of the estate, the remaining principal and income were to be distributed to the daughters in equal shares.

The will recognized that the mother had four children, including the one deceased. The son deceased was deceased at the time of the will’s execution. The grandchildren were not referred to in the will. The will provided that at the time of her death, the entirety of her estate was to be distributed to the Trust. This is what a pour-over will usually does, it pours-over into the trust. If the Trust were not in existence at the time of her death, the will provided that her daughters take the entirety of her estate in equal shares. And the will also stated that she was omitting anything for her other living son.

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The trial court found that the omitted issue of her deceased son were her heirs and were pretermitted heirs as defined by 84 O.S. 2001 §132.7.

The grandchildren won with the will, so they then filed a suit contesting the trust. Asking the court to determine that either they had a statutory share in the Trust and were entitled to an accounting by the trustees or, in the alternative, that the Trust was illusory. The trial court ruled against the omitted grandchildren.

The first impression question before the Supreme Court was whether naming a contingent beneficiary satisfies the requirement that a trust may not have the same person as sole trustee and sole beneficiary.
Title 84 O.S. 2001 §132 Does Not Apply To Revocable Inter Vivos Trusts.

The grandchildren argued that as pretermitted heirs, they were entitled to a statutory share in the Trust under 84 O.S. 2001 §132.14 The trust responded that §132 applies only to wills, and not to trusts. The Supreme Court noted that the opinion of In re Estate of Jackson, 2008 OK 83, 194 P.3d 1269, held that §132 “unambiguously pertains only to wills. It does not encompass a situation where a child is omitted from a trust, and we decline to extend its reach to revocable inter vivos trusts, and that the grandchildren are not entitled to a statutory share in the Trust.

The other first impression question was whether naming a contingent beneficiary satisfies the requirement that a trust may not have the same person as sole trustee and sole beneficiary. In other words, can you make a self-settled trust when you are the sole beneficiary. The Supreme Court held that the right to dispose of property is an inalienable natural right that persists throughout a person’s lifetime, and the right to control disposition of property after death is subject to statutory limitations. And, that Oklahoma law permits an individual to dispose of property at death by trust.

When it is applied to the law of trusts, the so-called “merger doctrine” is the equitable concept that a valid trust must have a separation of the legal estate from the beneficial enjoyment, and that no trust can exist where the same person possesses both.18 Title 60 O.S. 2001 §175.6, without using the term “merger doctrine,” codifies the principle that if a trustor is a beneficiary and the sole trustee, a valid trust also requires a beneficiary other than the trustor.19 Title 60 O.S. 2001 §175.3(K) defines a trust beneficiary as “any person entitled to receive from a trust any benefit of whatsoever kind or character.”

The majority rule is that a trust is not illusory or invalid simply because the interests of its beneficiaries, other than the trustor, are contingent. The Restatement (Third) of Trusts §25, Comment b provides in pertinent part:

(The) validity (of) an inter vivos trust is not affected by the fact that the interests of all beneficiaries other than the settlor do not take effect in possession or enjoyment before the settlor’s death, or that they are contingent or subject to conditions subsequent, including the exercise of a power of revocation, withdrawal, amendment, or appointment reserved to the settlor, whether exercisable during life or by will.

The reporter’s note to Restatement (Third) of Trusts §25, Comment b provides in pertinent part:

(C)ourts regularly and properly find valid trusts where settlors have retained complete control, and where other beneficiaries usually, if drafting is competent, have only future interests that are not only defeasible (by revocation or amendment) but also “contingent” upon surviving the settlor and maybe other events as well. . . .

Seven states have enacted statutes which explicitly provide that a trust which has the same person as sole trustee and sole present beneficiary is not invalid if it provides for a contingent or successor beneficiary. Nineteen states and the District of Columbia have adopted a version of the Uniform Trust Code, which provides at §402(b) that a beneficiary is definite if the beneficiary can be ascertained at the time of the creation of the trust or at some time in the future, subject to the rule against perpetuities. The Uniform Comment to §402(a)(5) provides that the merger doctrine is not applicable to a trust with the same person as sole trustee and sole life interest beneficiary if another person is designated the remainder beneficiary. Two other states, which do not have a statute directly addressing the issue, have adopted the Restatement view in appellate court opinions. While there are a few state court decisions which take a view contrary to the Restatement, each of these decisions has been subsequently overruled by statute. A few other decisions appear to require a present, vested beneficiary other than the sole trustee, but, by using terms like “vested interest subject to divestment” to rename contingent interests, embrace the Restatement view for all practical purposes. Our research has not disclosed a viable case or statute contrary to the Restatement view on this issue.

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The Supreme Court stated that in Thomas v. Bank of Okla., N.A., 1984 OK 41, ¶21, 684 P.2d 553, this Court determined that a revocable inter vivos trust may not be employed to defeat a surviving spouse’s forced share of an estate as provided by 84 O.S. 2001 §44. The Court held that such a trust was illusory as to the surviving spouse and set forth the method of determining the validity of a trust:

(T)he test of the validity of a trust is whether the transfer is real or illusory; that the test is whether the settlor in good faith divested himself of the property ownership or simply made an illusory transfer as a mask for the effective retention of the property.

Here, it is clear that the Trust was not an artifice for the effective retention of Neighbors’ property. Instead, Neighbors employed the common estate-planning device of creating a revocable inter vivos trust and simultaneously executing a pour-over will to provide for her heirs at the time of her death. The Restatement view is persuasive and consistent with the definition of a trust beneficiary found at 60 O.S. 2001 §175.3(K). A trust is not illusory simply because it has the same person as the sole trustee and only vested present beneficiary if it provides for at least a contingent beneficiary.

The Supreme Court held that the Trust was not illusory simply because the mother was the sole trustee and she was the only vested present beneficiary during her life. Because the Trust provided for her daughters as contingent beneficiaries, it was a valid trust.

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An experienced probate and living trust attorney like Brent D. Coldiron, knows what to do in these situations. His fees are reasonable. The best money ever spent is to get good legal advice before signing your name to something. Contact Brent at (405) 478-5655 or 737-2244. His website is http://coldironlaw.com.

The language used in your trust determines when a beneficial share will vest, or be secure.

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This language was used in a recent court case in a mother’s revocable trust intended to benefit her children and grandchildren if a child was deceased:

Division of Trust and to Shares upon My Death, Division Date Defined: Upon my death, the Co-Trustee, shall immediately divide the trust principal into separate shares for the benefit in equal seven (7) shares for [children’s names deleted] …, per stirpes. This date shall be called the “Division Date”. Each share set aside for a child or more remote descendant of mine shall constitute a separate and distinct trust. The person for whose benefit a share is created … is the primary beneficiary of that share.

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Distribution of Income and Principal to My Descendants After the Division Date: After the Division Date, the Co-Trustee shall have the discretionary power to pay all or any portion of the income and principal of each share of each independent trust to or for the benefit of …, per stirpes. If any beneficiary shall be deceased at the time of distribution, their share shall be distributed to their children so long as they have obtained the age of 25 years or older. Any heir not of the age of 25 years shall have their share held in trust until such time as they reach the age of 25 years.

Termination of Trust: The share or proportionate part thereof of the trust principal set aside for each primary beneficiary shall be held and eventually distributed and paid over free and clear of trust [children’s names deleted]… within three years of the death of [mother’s name deleted] ….

One of the children survived his mother but died a year later [before the distribution date], leaving a surviving spouse but no children. His surviving spouse contested the trust seeking to recover her husband’s share of the trust for his estate [and ultimately in her pocket as his sole heir]. The trial probate and trust court entered its judgment against the wife and in favor of mother’s trust. The trial judge found the intent of the trust agreement was that in order for a child to inherit the child had to be alive at his mother’s death and also when the distribution was made. And because this child left no children his bequest had lapsed.

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The appellant court reversed the trial court. The interpretation of an unambiguous trust agreement is a question of law. Corr v. Corr, 2001 OK CIV APP 31, 21 P.3d 642, 644 [The appellant court cited a case handled by my law office :)]. In construing a trust agreement, our primary purpose is to ascertain and give effect to the trustor’s intent. If the language of the agreement is unambiguous, we must ascertain the intent of the trustor from the terms of the agreement as a whole.

The appellant court said there was no ambiguity in the language of the trust agreement in this case. Contingent rights vest when the contingency is removed. Pursuant to the trust agreement, the contingent beneficiaries’ rights in the trust vested upon the trustor’s death. The mother directed the co-trustee to establish separate and distinct trusts for the benefit of each beneficiary upon her death, establishing that date as the Division Date. As of that date, the contingency was removed and the beneficiaries’ interests vested. Personally I think the lawyer who drafted the trust could have made it clear that if a child did not survive to the division date his share would lapse.

The appellant court went on to say that a trust’s terms may postpone vesting of a beneficiary’s interest to the happening of some future event, such as survival to a distribution date. The appellant court observed in another decision the trust language provided that if any beneficiary was not living on the distribution date, then that person’s share would go to her issue per stirpes, or if she had no surviving issue, it would be divided among the other beneficiaries. Trust language may also provide for the interest of the beneficiary to be divested upon the happening of a condition subsequent.

In the case at hand the mother’s trust did not use any language establishing a distribution date. This is something the drafting lawyer missed. Because of this, the son’s share will pass to his surviving spouse under his estate.

The dissent was more sympathetic with the drafting lawyer. It said that the majority’s holding, that a gift in trust vested at the time of the trustor’s death and could not lapse when the beneficiary died before the distribution date, is incorrect pursuant to Oklahoma law and the unambiguous intent shown in the mother’s trust document.

With no authority, the majority declares “the contingent beneficiaries’ rights in the Trust vested upon the trustor’s death.” The majority finds that the death of the trustor was the contingency, then notes authority that a later event may divest the beneficiary’s rights, but that it did not in this case. Oklahoma authority shows that a trust gift vests on the distribution date, absent an express declaration to the contrary.

In construing a trust instrument, the intention of the trustor controls. In re Dimick’s Will, 1975 OK 10, 531 P.2d 1027, 1030. In Dimick, the testamentary trust directed that after the corpus was delivered to the trustee, the trust would continue for ten years, at which time half the assets would be divided between the testator’s two daughters and the other half would remain in the trust for the care of his wife until her death, at which time the remaining funds would be divided between the two daughters. At the end of the ten years, the trust was in debt so the trustees did not distribute any assets. One daughter survived the ten year period but died before the assets were distributed. The trial court held that her quarter share of the trust was a vested right and the court directed the trustee to distribute that share to her estate. The appellate court framed the issue as whether at the end of the ten year period, the then-surviving daughter acquired a vested interest in her share of the trust, which was not divested by her subsequent death before the actual distribution of the trust corpus. The court noted that if an instrument provides a definite time when the right to receive the legacy accrues, then the gift vests at that time, even though actual distribution may occur later. Id. at 1030. The Oklahoma Supreme Court found that the trust showed the testator’s intent that half the trust property should be vested in and distributed to his daughters alive at the end of the ten years, or if either was dead on that date then to her children. Id. at 1031. The court held that the daughter who survived the ten years had a vested interest at that time, even though distribution occurred later. Id.

In Sivia v. Snyder, 1973 OK CIV APP 8, 517 P.2d 813 (cert. denied), the trustor created a living trust which provided that on his death, the trustee should pay various last expenses and after all of the preceding parts of the trust had been complied with, pay the residue to four named persons. The trust provided that if any of those persons were deceased but had living issue at the distribution date, then the trustee should distribute their share to their issue, but if the deceased left no living issue, then that share would be divided between the surviving named residuary beneficiaries. After the trustor died, the trustee paid the expenses as required by the trust, but the IRS proposed additional taxes. The trustee then planned to distribute the trust to the four beneficiaries but retain the amount of the proposed additional taxes. After the partial distribution commenced but before it was complete, one of the beneficiaries died without issue. The trustee asked the court to construe the trust to determine whether the deceased beneficiary survived until the “distribution date” so that her share of the trust would be paid to her estate. The trial court found that the deceased beneficiary’s interest vested at the time of the testator’s death. The appellate court was unable to see how the trustor could have intended “distribution date” to be his date of death because the trust directed certain payments to be paid upon the trustor’s death, but payment of the residuary was not among those. Id. at 815. Indeed, the court noted that the trust provided the residuary beneficiaries were to be paid after all the other trust provisions were complied with, which necessarily indicated some later date. The court noted an estate is never distributed on the date of death and to find otherwise would be to give the phrase “distribution date” an “interpretation contrary to its ordinary meaning.” Id. at 815-816. The appellate court noted there were two remaining possibilities for the “distribution date”-either the date of actual distribution, or the date the trustee could first have made distribution. The court concluded the second option “seems to comport more nearly with what the settlor most likely intended.” The court found that the settlor would not have desired the beneficiaries’ enjoyment of the gift to depend on accident, delay, or inconvenience. The court held it chose to follow the majority view, and the more practical one, that vesting in these circumstances takes place on the first date the legacy could reasonably be paid by the trustee, which was when all the provisions of the trust had been complied with, with the exception of payment of the additional tax, for which a fund was set aside. This date of course was prior to the death of Miss Sivia. To hold otherwise would be to find that the settlor, by using ‘distribution date’ in the trust, provided for such unpredictable occurrences and delays to defeat the gift. Such occurrences and delays would then replace the settlor’s manifest intent to give to certain named beneficiaries. We find such an interpretation would be completely contrary not only to settlor’s intentions, but also contrary to the very purpose for which the trust instrument was prepared in the first place.

In this case, the trustor clearly showed an intent that the distribution date differed from the date of death and she provided for an outside limit to the distribution date, to guard against unforeseen delays as shown in Sivia. The distribution date cannot be more than three years after her date of death. But as in Sivia, the interest of the beneficiaries does not vest on the date of the trustor’s death. Because Donald did not survive until the distribution date and because he did not leave children, his share lapsed under the plain language of the trust instrument.

This outcome is also supported by the Restatement. The trust instrument here shows the trustor’s intent to provide for her seven children. Restatement (Second) of Property, Don. Trans. § 27.3 (1988), provides: If a gift is made in favor of a class described as “children,” “grandchildren,” “brothers,” “sisters,” “nephews,” “nieces,” “cousins,” or by similar class gift terms that describe a one-generation class,

(1) a person within the primary meaning of the class gift term who dies after the dispositive instrument takes effect but before such class member is entitled to distribution of his or her share is not excluded from the class by reason of such death, if such death does not make impossible the fulfillment of a condition, unless additional language or circumstances indicate otherwise, or an applicable statute provides otherwise.

(2) If additional language or circumstances indicate otherwise or an applicable statute provides otherwise, the share in the class gift that such deceased class member would have taken had he or she lived, when the share of each class member is not a specified amount, goes to enlarge the shares of the class members not excluded, except to the extent that substitute takers are provided to take in place of the deceased class member by additional language or circumstances or by a statute.

Here, distribution was conditioned upon the class member or his living issue surviving until the distribution date. Donald’s death without issue prevented fulfillment of that condition.

The trust instrument at issue here shows the trustor’s intent that to receive a share, a beneficiary must survive (or have surviving issue) by the time of distribution, which was to be no more than three years after the death of the trustor.

The trustee has complete discretion when to distribute during that time frame. It also seems clear that the trustor’s intent was to provide for her seven children. If any child died before the distribution date, without children, that child’s share would necessarily go to the remaining living children. That comports with the trust language and the trustor’s intent. Donald died before his interest vested and the trial court correctly found that his interest lapsed.

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As well as the dissent argued it could not save the mother’s trust from the drafting of the trust attorney. An experienced living trust attorney like Brent D. Coldiron, knows what to do in these situations. His fees are reasonable. The best money ever spent is to get good legal advice before signing your name to something. Contact Brent at (405) 478-5655 or 737-2244. His website is http://coldironlaw.com.

IN THE MATTER OF THE ESTATE OF ADAMS, 2004 OK CIV APP 91, 101 P.3d 344
APPEAL FROM THE DISTRICT COURT OF McCLAIN COUNTY, OKLAHOMA
The decision of the HONORABLE NOAH EWING, JR., TRIAL JUDGE, was AFFIRMED.

United States Supreme Court

United States Supreme Court

Wanda Belle Adams, the decedent executed a will on July 1, 1996. She was then in declining health but lived until February 8, 2003, at which time she was seventy three. During her later years she needed increasing assistance with her normal life activities. She had never married and had no children. As the result of illness at the age of twelve or thirteen, she found it necessary to use a wheelchair for all her adult life, but was able to work as a public accountant. She was survived by four sisters and three brothers. Another brother predeceased her.

A brother filed his Petition for Letters of Administration and Determination of Heirs on March 12, 2003. He alleged his sister had died intestate. A sister objected alleging that her sister had died with a valid will made on July 1, 1996. It was produced for probate. The will left the Decedent’s home and adjoining land to the sister’s son and daughter-in-law, and the remainder of the estate was to go to the sister. Nothing like getting left out of a will is better to kindle a family fight!

At the hearing the brother argued that his deceased sister “was not competent to execute a will on July 1, 1996.” The two witnesses to the decedent’s will testified at the hearing in support of its validity, as did the beneficiaries of the will. One of the witnesses to the will was the attorney who drafted it, and the other was another attorney.

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The trial court found the will was valid and admitted it to probate. The court concluded the case centered around the issue of testamentary capacity and that the “most complicating factor” was the court’s granting of guardianship over Decedent at approximately the same time as Decedent executed her will. The trial court found the guardianship did not, as a matter of law, preclude Decedent from executing a valid will, and that the testimony of the lawyer who drafted the will was “most convincing” because he had been involved with both execution of the will and application for Decedent’s guardianship.

In probate cases, being of equitable cognizance, the appellant court will examine and weigh the evidence, but we must abide by the presumption that the trial court’s determination is correct 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 Holcomb, 2002 OK 90, 63 P.3d 9. The trial court enjoys deference when it comes to the resolution of conflicting evidence because it had the opportunity to observe the demeanor and conduct of the witnesses. And, the burden of persuasion on the issue of testamentary capacity lies with the party contesting the validity of the will. In re Estate of Maheras, 1995 OK 40, 897 P.2d 268.

In Estate of Holcomb, at, 13, the Supreme Court defined testamentary capacity as follows:

Testamentary capacity exists when a person possesses, in a general way, the ability to appreciate the character and extent of the devised property, understands the nature of the relationship between himself and the natural objects of his bounty, and apprehends the nature and effect of the testamentary act. … In adjudging a decedent’s testamentary capacity, it is appropriate for the trial tribunal to consider evidence of the testator’s mental capacity, appearance, conduct, habits and conversation both before and after the will’s execution to the extent these factors are relevant to the maker’s mental condition at the time the will was executed.

¶8 Appellant concedes the contested will was executed with the requisite formalities dictated by 84 O.S. 1991 § 55, but in his Brief in Chief contends the will is invalid because of noncompliance with 84 O.S. Supp. 1992 § 41. This latter section provides that one subject to guardianship or conservatorship may lawfully dispose of his or her estate by will, but requires the will to be subscribed and acknowledged in the presence of a judge of the district court. This contention fails because Appellant did not raise it before the trial court and is barred from raising it for the first time on appeal. Marlin Oil Corporation v. Barby Energy Corporation, 2002 OK CIV APP 92, 55 P.3d 446.1

A long standing rule of law in Oklahoma is that a presumption of want of testamentary capacity does not arise from the fact that the maker of a will may have been under guardianship at the time of the making of the will. In re Nitey’s Estate, 1935 OK 1218, 175 Okla. 389, 53 P.2d 215. Thus, incompetency or impairment which may support guardianship does not, as a matter of law, mean that the subject of the guardianship is unable to still make a will. The guardianship is some evidence for consideration of the court in determining the condition of Decedent’s mind at the time the will was signed.

The court also stated that being unable to manage one’s own estate was not inconsistent with testamentary capacity. That testamentary capacity is not identical to business capacity and a person subject to a guardianship is not necessarily a person of unsound mind. Tthat a person may not then have sufficient mind and vigor of intellect to transact business generally and make contracts, yet be competent to make a will. The presumption is that every person is sane.

The Order Appointing Guardians over the deceased sister stated, that she was “impaired by reason of mental confusion and physical limitations, resulting in an inability to receive and evaluate information effectively, meet the essential requirements for her physical health and safety, and manage her financial resources.” The appellant court stated that there was nothing in the finding, which was entered a month after the Decedent executed her will, which would necessarily preclude a determination of testamentary capacity.

The court also commented on the fact that the will left everything to one sister and her child and spouse. That the Decedent’s will was “an unnatural will in its disposition of her property.” Because she left the bulk of her estate to one sister only and wholly omitted her remaining six brothers and sisters and the children of her deceased brother. An unnatural disposition of property may be considered in determining his testamentary capacity. But the appellant court stated that leaving everything to one sibling is not an unnatural will.

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The court went on to observe that no presumption of testamentary incapacity arises because a will gives property to persons other than those “who are natural objects of the testator’s bounty”, and if a testator is possessed of testamentary capacity, he may “give his property entirely to strangers.” In re Newkirk’s Estate, 1969 OK 93, 456 P.2d 104. The Oklahoma Supreme Court has held “[i]t is natural for a person to make provisions in his will for those who were particularly close and helpful to him during his lifetime, and more especially, to those within his own family.” In re Lacy’s Estate, 1967 OK 123, 431 P.2d 366.

The sister proponent of the will testified she had a long and close relationship with Decedent and that she was the “primary person who took her deceased sister to where she needed to go” until her child and spouse moved next door to Decedent. At Decedent’s request they moved a house trailer onto her property in 1985. The Decedent helped pay off the trailer and they remained there for twelve years.

The court went on to discuss the testimony of the other witnesses, and concluded saying that there is no dispute that Decedent did not enjoy good health at the time she executed her will. However, advanced age or physical infirmity alone do not render one incapacitated to make a will. Rose v. Foster, 1955 OK 242, 288 P.2d 745. The extent of Decedent’s mental impairment is contested, but the trial court’s finding that she possessed testamentary capacity at the time she executed her will is not clearly against the weight of the evidence. The trial court’s order admitting Decedent’s will to probate is accordingly AFFIRMED.

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