State ex rel. Chowning v. Caldwell , 200 Okla. 250 ( 1948 )

WELCH, J.

Upon the intestate death of Elizabeth Chowning, administration proceedings were commenced in the county court and progressed to a finding that George Mageson was the sole heir of said decedent, M. J. Chowning and others appeared in said proceeding representing that they were the sole surviving heirs of A. J. Chowning, deceased; that A. J. Chowning was the husband of Elizabeth Chowning, but predeceased her; that certain lands were acquired by joint industry of A. J. Chowning and Elizabeth Chowning during coverture, title standing in his name, which descended to his surviving wife Elizabeth Chowning by virtue of the statute, 84 O.S. 1941 §213(2); that Elizabeth Chowning continued to own said lands up to her death; that they, the said M. J. Chowning and others, claim to own an undivided one-half interest in said lands by virtue of said statute and had commenced an action in the district court to recover such interest. And upon such showing said M. J. Chowning and others asked and obtained in the county court an order, in effect, postponing final distribution of the estate of Elizabeth Chowning pending determination of said district court action.

Thereupon George Mageson, as sole heir of Elizabeth Chowning, appealed to the district court. This court in this original action stayed further action of the district court in such appeal pending further order herein.

The district court action above referred to is disposed of by our decision this day in 33188, Chowning v. Fountain, 200 Okla. 251, 192 P. 2d 846.

And the decision there renders it necessary and proper that the final order herein should be that the district court be, and it is hereby, prohibited from taking any further action in such probate appeal other than to remand the same to the county court for further trial and determination between George Mageson, claiming to be the sole heir of Elizabeth Chowning, deceased, and M. J. Chowning et al., claiming to be the sole heirs of A. J. Chowning, deceased, and claiming the right as such heirs to inherit an undivided half interest in certain lands.

HURST, C.J., DAVISON, V.C.J., and BAYLESS, CORN, ARNOLD, and LUT-TRELL, JJ., concur. GIBSON, J., dissents.