
    In the MATTER OF the ESTATE OF Cliffton Fred WALKER, Deceased,
    Beverly Walker, Appellant, v. Gentner F. Drummond, Appellee.
    Case No. 116,753
    Court of Civil Appeals of Oklahoma, Division No. 4.
    FILED September 18, 2018 Mandate Issued: October 17, 2018
    Brad E. Hilton, HILTON LAW OFFICE, Skiatook, Oklahoma, for Appellant
    Harvey C. Grauberger, DRUMMOND LAW, PLLC, Tulsa, Oklahoma, for Appellee
   OPINION BY JERRY L. GOODMAN, JUDGE:

¶ 1 Beverly Walker appeals a February 2, 2018, order denying her motion to dismiss and Objection to Petition for Probate of Will, Appointment of Personal Representative, Determination of Identity of Heirs, Devisees and Legatees and Termination of Joint Tenancy. Based on our review of the record and applicable law, we reverse.

BACKGROUND

¶ 2 Cliffton F. Walker (Decedent) died on November 6, 2011. Decedent was an Osage Indian who died testate, leaving a Last Will and Testament. Decedent left behind his surviving spouse, Beverly Walker (Spouse), as his sole devisee/legatee. Decedent owned a fractional Osage headright interest. At the time of his death, he was a resident of Mayes County, Oklahoma.

¶ 3 On March 30, 2012, Gentner F. Drummond (Drummond) filed a Petition for Probate of Will, Appointment of Personal Representative, Determination of Identity of Heirs, Devisees and Legatees, and Termination of Joint Tenancy in the District Court of Osage County, Oklahoma, Case No. PB-2012-43. Drummond was nominated in the Will to serve as Executor, and on April 26, 2012, was appointed Personal Representative in the Osage County probate case. On November 29, 2016, an Order Approving First and Final Account, Petition for Decree of Distribution; Approval of Attorneys' Fees, Costs, and Expenses; and Discharge of Personal Representative was entered. No appeal was filed and the order is now final.

¶ 4 On September 7, 2017, Drummond filed a petition to probate Decedent's estate in Mayes County District Court, Case No. PB-2017-55. Spouse filed an objection, asserting the Mayes court did not have jurisdiction as Decedent's estate had previously been probated in Osage County. Spouse further filed a motion to dismiss for lack of jurisdiction, citing the finality of the Osage County order. Drummond filed a response, asserting the Osage County District Court lacked venue over Decedent's estate because it was not the county of which Decedent was a resident at the time of his death, citing 58 O.S.2011, § 5 and Presbury v. County Court of Kay County, Oklahoma , 1923 OK 127, 88 Okla. 273, 213 P. 311. Thus, its actions were void.

¶ 5 By order entered on February 2, 2018, the trial court denied Spouse's motion to dismiss and Objection to Petition for Probate of Will, Appointment of Personal Representative, Determination of Identity of Heirs, Devisees and Legatees and Termination of Joint Tenancy. Spouse appeals.

STANDARD OF REVIEW

¶ 6 We review de novo a district court's order on a motion to dismiss. Miller v. Miller , 1998 OK 24, ¶ 15, 956 P.2d 887, 894.

ANALYSIS

¶ 7 The issue on appeal is whether the Osage County District Court was a proper venue for probate of Decedent's estate. Drummond contends it was not, citing 58 O.S.2011, § 5 and Presbury v. County Court of Kay County, Oklahoma , 1923 OK 127, 88 Okla. 273, 213 P. 311.

¶ 8 The Oklahoma Supreme Court held in Presbury , 1923 OK 127, at ¶ 7, 88 Okla. 273, 213 P. at 312, that wills must be proved, and letters testamentary or of administration granted, first in the county of which the decedent was a resident at the time of his death. The Court relied on § 6193, Revised Laws 1910, which specifically provided:

Wills must be proved, and letters testamentary or of administration granted:
First. In the county of which the decedent was a resident at the time of his death, in whatever place he may have died.
Second. In the county in which the decedent may have died, leaving estate therein, he not being a resident of the State. ...

Thus, the Legislature prioritized venue in which a probate action should be filed by its use of "First, Second, ...". The Legislature subsequently amended the statute, specifically removing the priority language. Title 58 O.S.2011, § 5 provides:

Wills must be proved, and letters testamentary or of administration granted in the following applicable situations:
1. In the county of which the decedent was a resident at the time of his death, regardless where he died.
2. In the county in which the decedent died, leaving an estate therein, the deceased not being a resident of this state.
3. In the county in which any part of the estate of the deceased may be, where the decedent died out of this state, and the decedent was not a resident of this state at the time of his death.
4. In the county in which any part of the estate may be and the decedent was not a resident of this state, but died within it, and did not leave an estate in the county in which he died.
5. In all other cases, in the county where application for letters is first made.

¶ 9 Accordingly, a priority no longer exists in the statute and a probate action may be filed in any of the applicable situations listed in § 5. As a result, venue was proper in Osage County District Court in PB-2012-43, as it was the county where application for letters was first made. The November 29, 2016, Order Approving First and Final Account, Petition for Decree of Distribution; Approval of Attorneys' Fees, Costs, and Expenses; and Discharge of Personal Representative in PB-2012-43 is final.

¶ 10 Therefore, the District Court erred by denying Spouse's motion to dismiss. The February 2, 2018, order denying Spouse's motion to dismiss is reversed.

¶ 11 REVERSED.

BARNES, P.J., and RAPP, J., concur.  