58 Oklahoma Statutes, Section 126 provides for the qualification of a probate executor:
No person is competent to serve as administrator or administratrix, who, when appointed, is:
1. Under the age of majority.
2. Convicted of an infamous crime.
3. Adjudged by the court incompetent to execute the duties of the trust by reason of drunkenness, improvidence or want of understanding or integrity.
The Supreme Court of Oklahoma answered the question about what constituted an infamous crime in Matter of Estate of Middleton, 412 P. 3d 96 by ruling that a felony was an infamous crime. The court declined to narrow the interpretation to be that of a crime of moral turpitude.
Here is what the Supreme Court had to say:
IN THE MATTER OF THE ESTATE OF KENNETH LEROY MIDDLETON, deceased,
CHERIE
BISHOP, Appellant,
v.
JOHNNY R. MIDDLETON, Appellee.
APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY,
STATE OF OKLAHOMAHONORABLE ALLEN J. WELCH, TRIAL JUDGE
¶0 The probate court disqualified one of two co-personal representatives nominated in decedent’s will. The disqualified nominee had a felony conviction for DUI. The probate court ruled that this was a conviction for an infamous crime as provided in 58 O.S.2011, § 102(2), and as defined in In re Dunham’s Estate, 1937 OK 663, 74 P.2d 117 and Briggs v. Board of County Commissioners, 1950 OK 105, 217 P.2d 827. The disqualified nominee appealed and asked this Court to retain this appeal.
APPEAL RETAINED; ORDER OF DISQUALIFICATION AFFIRMED
¶1 Cherie Bishop appeals the probate court order that disqualified her from serving as co-personal representative of the estate of Kenneth Leroy Middleton. Ms. Bishop had been nominated to serve as a co-personal representative in Kenneth’s Last Will and Testament. Ms. Bishop’s eligibility to serve as co-personal representative was questioned by Johnny R. Middleton, Kenneth’s nephew, and the other nominated co-personal representative. Johnny asserted that Ms. Bishop had been convicted of an infamous crime and was not competent to serve as a co-personal representative as provided in 58 O.S.2011 § 102(2).1 This statute excludes anyone who has been convicted of an infamous crime from serving as an executor of an estate. Based on Ms. Bishop’s stipulation that she had a felony DUI conviction, the trial court ruled that she was disqualified to serve as a co-personal representative under the infamous crime exclusion in § 102(2).
¶2 In concluding that a felony DUI conviction was a conviction for an infamous crime as provided in § 102(2), the trial court relied upon In re Dunham’s Estate, 1937 OK 663, 74 P.2d 117 and Briggs v. Board of County Commissioners, 1950 OK 105, 217 P.2d 827. The Dunham case construed another probate code statute – 58 O.S.1931 § 126(2) – that excludes anyone convicted of an infamous crime from serving as an administrator or administratrix of an estate.2 TheBriggs case construed a statute – 51 O.S.1941 § 8 – that provides for the vacation of a public office upon conviction of the office holder of an infamous crime.3Both cases similarly observed that if the crime for which the individual was convicted carried felony punishment under Oklahoma law, then the individual had been convicted of an infamous crime.
¶3 Ms. Bishop acknowledges that this is the settled law. She nonetheless argues that this Court should retain this appeal and “change the current state of the law to define an ‘infamous crime’ as a crime of moral turpitude.” In response, Johnny Middleton offered no objection to this Court reviewing 58 O.S.2011 §102(2), to determine if the term infamous crime should be “narrowed.” Mr. Middleton urges, however, that any new rule concerning infamous crime be applied prospectively so that steps and distributions that have already been completed in the probate of Kenneth’s estate will not be disturbed.
¶4 This appeal was retained because the change in case law that Ms. Bishop seeks could only be ordered by this Court. Upon review, we decline to grant her relief.
¶5 We note that the Legislature has taken no action in the past 80 years to disapprove of this Court’s interpretation of infamous crime as used in the probate code and 51 O.S.2011 § 8. In fact, the Legislature actually codified the Briggs interpretation of infamous crime as used in 51 O.S.2011 § 8. In 1981, the Legislature replaced the term “infamous crime” with the term “any felony.”4 As concerns 58 O.S.2011 §§ 102(2) and 126(2), the Legislature has undertaken no amendment of these statutes since Dunham was decided in 1937.
¶6 In view of these circumstances, we must conclude that the Legislature has tacitly approved the Dunham interpretation of infamous crime to mean a felony under Oklahoma law. This interpretation provides a “bright line” rule that is easily understood and applied. Respect for stare decisis dictates that any change or narrowing of this longstanding rule come from the Legislature, and not this Court.
¶7 Ms. Bishop admits that she has a felony conviction under Oklahoma law for D.U.I. and thus has a conviction for an infamous crime. By the express command of statute, she is not competent to serve as an executor. Accordingly, the trial court did not err in entering an order that disqualifies her from serving as a co-personal representative of the Estate of Kenneth Leroy Middleton.
APPEAL RETAINED; ORDER OF DISQUALIFICATION AFFIRMED.
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