Opinion · Supreme Court of Oklahoma

Matter of Estate of Nation

834 P.2d 442

Type
Opinion
Court
Supreme Court of Oklahoma
Jurisdiction
Oklahoma
Date
1992-06-30
Topic
general

*443ORDER Appellee’s motion to dismiss is granted and this appeal is dismissed as untimely. The order of the district court denying appellants’ application to share as omitted children is an interlocutory order appeal-able by right. 58 O.S.1991, § 721(10) and Rule 1.60 of the Rules of Appellate Procedure in Civil Cases, 12 O.S.1991, ch. 15, app. 2. Appeals of interlocutory orders appealable by right in a probate proceeding must be commenced within thirty days from the date of the hearing at which the order was issued. Rule 1.61 of the Rules of Appellate Procedure in Civil Cases, 12 O.S.1991, ch. 15, app. 2. The interlocutory order on appeal was pronounced at the hearing on December 4, 1991, at which the appellants or the appellants’ attorney were present, therefore the interlocutory order was issued at that hearing.

Citator

UpLaw has not yet analyzed Matter of Estate of Nation. The absence of a flag is not a finding that it is good law.

Cited by
7 opinions
MATTER OF ESTATE OF NATION,1992 OK 91
834 P.2d 442
IN THE MATTER OF THE ESTATE OF BOBBY DEAN NATION, DECEASED.
DORIS DEAN NATION LEE AND MARK NATION, APPELLANTS, v. JANICE MARIE NATION,
PERSONAL REPRESENTATIVE OF THE ESTATE OF BOBBY DEAN NATION, DECEASED,
APPELLEE.
No. 78918.
Supreme Court of Oklahoma.
June 30, 1992.
As Corrected July 29, 1992.
Appeal from the District Court.Page 443
[1] ORDER
[2] Appellee's motion to dismiss is granted and this appeal is dismissed as untimely. The order of the district court denying appellants' application to share as omitted children is an interlocutory order appealable by right. 58 O.S. 1991 § 721[58-721](10) and Rule 1.60 of the Rules of Appellate Procedure in Civil Cases, 12 O.S. 1991, ch. 15, app. 2. Appeals of interlocutory orders appealable by right in a probate proceeding must be commenced within thirty days from the date of the hearing at which the order was issued. Rule 1.61 of the Rules of Appellate Procedure in Civil Cases, 12 O.S. 1991, ch. 15, app. 2. The interlocutory order on appeal was pronounced at the hearing on December 4, 1991, at which the appellants or the appellants' attorney were present, therefore the interlocutory order was issued at that hearing. This appeal was commenced on January 15, 1992, more than thirty days after the interlocutory order was issued. Thus, this appeal was not timely filed to invoke the jurisdiction of this court.

[3] This dismissal shall not prejudice the rights of the appellants to reassert their application before the trial court prior to final decree of distribution of the estate and to seek appellate review of the final decree entered in the probate proceeding.

[4] DONE BY ORDER OF THE SUPREME COURT.

[5] LAVENDER, SIMMS, HARGRAVE, ALMA WILSON, KAUGER and WATT, JJ., concur.

[6] SUMMERS, J., concurs specially.

[7] OPALA, C.J., and HODGES, V.C.J., dissent.
[8] SUMMERS, Justice, concurring specially.
[9] I agree with the majority in concluding that an order denying an appellant's application to share in an estate as a pretermitted child is an interlocutory order appealable by right. 58 O.S. 1991 § 721[58-721](10). Since the case ofIn re Tayrien'sEstate,207 Okla. 401,250 P.2d 16(1952) appears to hold that such an order isnotappealable under § 721, I would go a step further and expressly overruleIn re Tayrien's Estateto the extent it is inconsistent with today's order.
[10] OPALA, Chief Justice, with whom HODGES, Vice Chief Justice, joins, dissenting.
[11] The court dismisses for untimeliness an appeal from a mid-probate order that denies appellants' claim — as unintentionally omitted children — to a statutory share of decedent's estate.1Today's opinion reasons that the order in contest is interlocutory2and hence must be appealed,3if atPage 444all, within thirty days of itsrendition4rather than thirty days after itsfiling.5I must recede from the court's pronouncement.I would review the nisi prius order atonce because it is final as the disposition of a "collateral"("off-track")6contest for pretermitted-heirship status.This appeal, brought withinthirty daysof the order'sfiling,7is hencetimely.
I
A
[12] CRITICAL FACTS
[13] The father's [testator's] will was admitted to probate.8It bequeaths to his two children certain corporate stock in equal shares. Before his death the testator sold this stock. The children initiated a mid-probate proceeding for a distributive share of the estate,9urging that since their testamentary gift failed by ademption,10they should be declared11to stand as omittedPage 445heirs.12In support of their argument they point out the will contains no language that would disinherit them.
B
[14] ANALYSIS OF PROCEEDINGS IN PROBATE
[15] A clearer perception of this litigation's anatomy emerges when the probate's various phases are arranged in trichotomous segments. The beginning stage of the proceeding was a petition to probate the document offered as the testament of Bobby Dean Nation, deceased. The will's admission to probate ended State I. The second state was triggered by the children's application to settle a collateral (or off-track) issue — their omitted-heirship status. This stage is best described as anancillary contestanterior to the estate's distributionpursuant to the will. It ended with the December 23rd order now under review, which concluded the off-track contest between the estate and the childrenquaomitted heirs. The third and final state yet to follow is the administration of the estate and its distributionunder the will. The court's Stage II decision now tendered forreview (a) cuts off the children's interest in the estate, (b)extinguishes their right to share in its eventual distributionand (c) shuts them out of the State III proceedings.13
II

[16] THE OFF-TRACK CONTEST FOR UNINTENTIONALLY OMITTED-CHILD STATUS RESULTED IN AN APPEALABLE ORDER THAT IS FINAL

[17] Because the omitted-child statute14prescribes no limit for bringing a claim, we turn to extant case law in search of a pronouncement on the appropriate time to press the demand. A plea for omitted-child status maynotbe raised as a barrier to the will's admission to probate nor in a post-probate will contest.15If the will is legally executed, proved and found not vulnerable for (a) want of testamentary capacity, (b) undue influence, (c) fraud or (d) duress, it is admissible for probate.16One claiming omitted-heirship status may not seekpartial distribution17of the estate within the parameters of 58 O.S. 1991 § 621[58-621];18Page 446predecree distributionis reserved for those whose right to inherit is unclouded.19While onemay,of course, bring a claim for omitted-heirship status as an objection to the estate fiduciary's final account and petition for distribution,20an earlier resolution of the contest isnowhere inhibited.21So long as the children'sdemand does not challenge the will's factum or seek predecreedistribution, they may initiate a collateral contest to havetheir omitted-child status determined at any time before theestate's distribution is effected.22Once the claimed status isdenied,23the probate will not come to an end, but the order is nonetheless final because it carries the independent (off-track) contest to termination.

[18] The order for review here bears striking similarity to certain rulings that fall within the federal "collateral order" class.24The doctrine governing this class of decisions permits midstream appeals from certain orders that do not terminate a federal-court action.25Its origin is found in the United States Supreme Court's expansive interpretation of the finality requirement in 28 U.S.C.A. § 1291.26Within this rather small class of at-once appealable off-track orders are those which (1)finally decide claimsPage 447separable from themainstream action,(2) are too important to be denied immediate appellate review and (3) are too independent of the main action to require an appellate court to defer consideration until the litigation's completion.27In my view the decision here under considerationsubstantially touches, if not totally meets, allthe criteria of a collateral order.

[19]The mainstream proceedingin a testate decedent's probate is the orderly administration of the estate for final distribution in accordance with the will.28The will determines, not only the testamentary gift's recipient but also the nature and amount of each beneficiary's bounty. During the course of the estate's administration the court may be called upon to make off-track rulings which are independent of or collateral to proceedings in the probate's mainstream. This takes place when claimants, as the children here, seek to establish their share and hence affect the distribution regime under the will.29

[20] By applying for a statutory share of the estate, the children broughta contest quite apart from the probate's mainstream.Because of their legacy's ademption they will take nothing under the will's terms.30In a very real sense the court's off-track disposition of their application shut them out of the case;31they no longer qualify as parties with a claim to be pressed.32

[21] If the court were to treat this appeal as one from a final order, as I would do today, the appellate resolution of the issue beforePage 448us would become thesettled law of the case.33As a practical matter, the trial court has conclusively settled the disputed question.34Although the children will have another opportunity to renew their heirship-status claim (i.e., by raising it later as an objection to the final account and petition for distribution), our extant jurisprudence eloquently demonstrates that an aggrieved party's legal power to reassert a plea for reliefafter its initial denial,or a plaintiff's ability to "wire around" an adverse order and still remain in court,does not per se sap the decision of finality attributes.For example: (1) a condemnation order denying a challenge by condemnees to condemnor's power to take — by eminent domain generally or a specific property —can be renewedbefore the final condemnation decree;yet the decision is at onceappealable as final;35(2) the court's dismissal without prejudice or a suit's termination "otherwise than on the merits" isnobar to an action's later refiling;36yet thedismissal or termination order is at once appealable asfinal;37and lastly, (3) an order quashing process is no bar to issuance of an alias summons;yet the order is at onceappealable as final.38All these orders, just as the onePage 449considered today, may be tendered for immediate appellate review.
III

[22] BECAUSE THE CHILDREN'S AVENUE OF PROCEDURE WAS OBSCURELY ARTICULATED AND CASE LAW MISLEADING, THIS APPEAL SHOULD BE SAVED FROM DISMISSAL

[23] The text of 58 O.S. 1991 § 721[58-721](7), defines as appealable any order"[r]efusing . . . the payment of a . . . distributiveshare."39Rule 1.1040indicates by reference thatsubdivision 7 orders are appealable as final.Extant jurisprudence refers to subdivision 7 orders as final.41Statute, rule, and case law together give theappearanceof finality to the order under review.The line of demarcationbetween mid-probate orders that are final and those that areinterlocutory is at best unclear in our jurisprudence.

[24] Under the teaching ofPoafpybitty v. Skelly Oil Company42and its progeny,43this court has rescued from dismissal an appeal on more than one occasion to keep procedural snares, ambiguous legislative enactments or misleading jurisprudence from becoming a veritable trap. Here, where the court's own rules contribute to the confusion, it is especially fitting that the court give todaypurely prospectiveapplication to its decision that this mid-probate appeal is interlocutory. The children should not be penalized for a lawyer's false prediction of which § 721 classification the court would accord to an order that denies an omitted heir his distributive share of the estate.
[25] SUMMARY
[26] As Summers, J. counsels, I would overruleTayrien44butonlyinsofar as it holds the order denying partial distribution to an omitted heir is not appealable under the provisions of 58 O.S. 1951 § 721[58-721]. As for my response to the court's conclusion that the quest for corrective relief came too late, I would notgaugethis mid-probate order'sfinalityby tacitly applying, as the court does today, the notions of § 100645—Page 450whose appealability standards requireeveryone's claimto have been decided below. Nor would I apply the § 68146criteria, which define as "judgment" — in the §952(a)47appealability sense —onlythatnisi priusdisposition which resolvesallthe issues on the merits of an action.None of these sectionsgoverns probate appeals.The court's tenacious commitment to these irrelevant gauges iswithout any legal warrant. Anunterminated probate,48like that in the case before us today, may indeed bring forth a final order.

[27] I cannot countenance today's dismissal of this appeal. Because the denial of appellants' quest for omitted-heirship status (a)refuses to allow them a distributive shareof the estate within the meaning of § 721(7),49(b) terminates their mid-probate collateral (off-track)50contest, and (c) in a real sense dismisses them as "parties" to this probate,51I would regard as final the order we are called upon to review. The issues before us are clearly outside the probate's mainstream. Because the court's decision — holding that this mid-probate appeal is interlocutory —settles unclear and misleading jurisprudence ofyore and obscurely couched court rules,today's holding should bepurely prospectivein keeping with the teachings ofHale,IsbellandPoafpybitty.52
  1. A child unintentionally omitted from a will is sometimes referred to as a pretermitted or omitted heir. Where a testator unintentionally fails to mention in his will or make provision for a child — either living at the date of the will's execution or one born later — statutory law may afford that child a share in the estate as though the testator had died intestate. Black's Law Dictionary 1069 (5th ed.). For the terms of Oklahoma's unintentionally omitted-child statute,see84 O.S. 1991 § 132[84-132],infranote 11. In this dissent I use the terms "omitted child," "omitted heir," or "pretermitted heir" as synonyms. ↩
  2. An interlocutory decision is one made in advance of judgment. It is not appealable unless it (a) falls within a class of interlocutory orders appealable by right — such as those enumerated in 58 O.S. 1991 § 721[58-721](1-6), (8-10) — or (b) is certified by the trial court for immediate review as one that affects a substantial part of the merits of the controversy.See12 O.S. 1991 § 952[12-952](b)(3) and Part II(A), Rules of Appellate Procedure in Civil Cases, 12 O.S. 1991 Ch. 15, App. 2.

    Thepracticalremedial distinction betweeninterlocutoryappeals and those fromfinal orders ancillary to the mainactionis that thestatutory triggerfor the two types of midstream appeals differs.Interlocutory ordersare appealable within thirty days of the decision'spronouncement12 O.S. 1991 § 993[12-993],infranote 4. Thethirty-dayperiod for appealing fromfinal ordersruns from the date they arefiled.12 O.S. 1991 § 990A[12-990A](A),infranote 5. ↩
  3. Appealable probate orders are enumerated in 58 O.S. 1991 § 721[58-721], which provides:

    "An appeal may be taken from the following judgments or orders of the district court:

    1. Granting, or refusing, or revoking letters testamentary or of administration, or of guardianship, or conservatorship;

    2. Admitting, or refusing to admit, a will to probate;

    3. Against or in favor of the validity of a will or revoking the probate thereof;

    4. Against or in favor of setting apart property, or making an allowance for a widow or child;

    5. Against or in favor of directing the partition, sale or conveyance of real property;

    6. Settling an account of an executor, or administrator or guardian;

    7.Refusing,allowing or directing the distribution or partition of an estate, or any part thereof orthe payment of adebt, claim, legacy ordistributive share;

    8. Refusing or allowing the release of estate tax liability;

    9. An order determining liability for estate taxes made pursuant to Section 268 of this title; or

    10. From any other judgment, decree or order of the court in a probate cause, or of the judge thereof, affecting a substantial right." [Emphasis mine.] ↩
  4. The time for appeals from interlocutory ordersis prescribed by 12 O.S. 1991 § 993[12-993], which provides in pertinent part:

    ". . . [T]he party aggrieved thereby may appeal the order to the Supreme Court without awaiting the final determination in said cause, byfiling the petitionin error and the record on appeal with the SupremeCourt within thirty (30) days after the order isissued. . . ." [Emphasis mine.]See alsoRule 1.61, Rules of Appellate Procedure in Civil Cases, 12 O.S. 1991, Ch. 15, App. 2, which provides in pertinent part:

    "An appeal from these interlocutory orders of the district court may be commenced by filing a petition in error . . . within thirty days of the date of the order. The date of the order shall be thedate of thehearing at which the order was issuedif the appellant or the appellant's attorney were present. * * *" [Emphasis mine.] ↩
  5. The time for appeals from final ordersis prescribed by 12 O.S. 1991 § 990A[12-990A](A), which provides in pertinent part:

    "An appeal to the Supreme Court may be commenced by filing a petition in error with the Clerk of the Supreme Courtwithin thirty (30) days from the datethe final order or judgment is filed. . . ." [Emphasis mine.] ↩
  6. In this dissent the words "collateral" and "off-track" are used as synonyms for issues ancillary to the probate proceeding's "mainstream" or to its "on-track" parts. ↩
  7. The court's decision denying petitioners omitted-child status wasannouncedon December 4, 1991, with all counsel present. The order memorializing the court's decision wasfiledDecember 23, 1991. This appeal was lodged January 15, 1992. ↩
  8. Janice Marie Nation is the estate's personal representative. ↩
  9. For the terms of the statute that protects a child unintentionally omitted from a will,see84 O.S. 1991 § 132[84-132],infranote 11. The children seek the share they would have taken had their father died intestate. The terms of 84 O.S. 1991 § 213[84-213] identify that share's quantum. ↩
  10. Ademptionof a gift occurs when a testatordisposes ofthat part of his estate which is specifically devisedor bequeathed.It is hence impossible to carry out the terms of thewill.In Re Van Duyne's Estate,205 Okla. 440,239 P.2d 387, 392-393 (1951). ↩
  11. The pertinent terms of 84 O.S. 1991 § 132[84-132] are:

    "When any testatoromits to provide in his willfor any of his children . . . unless it appears thatsuch omission was intentional,such child . . . must have thesame share in the estate of the testator,as if he had died intestate,and succeeds thereto as provided in the preceding section [§ 131]." [Emphasis mine.] ↩
  12. The Uniform Probate Code's provision for unintentionally omitted children applies only to thosechildren born or adoptedafter the execution of the will. SeeUniform Probate Code § 2-302 (Ninth ed. 1990), which provides in pertinent part:

    "(a) Except as provided in subsection (b), if a testator fails to provide in his [or her] will for any of his [or her]children born or adopted afterthe execution of the will,the omitted after-born or after-adopted child receives a share in the estate as follows:. . . ." [Emphasis mine.]

    The subsection (b) exception applies to omissions that appear from the face of the will to have beenintentionaland to instances where the testator provided for the omitted after-born or after-adopted childoutside the will.Neither the Oklahoma omitted-child statute, see supra note 11,nor the Uniform Probate Code section under discussion hereexplains how or when within a probate proceeding the availableremedy for assertion of omitted-heirship status may be invoked.See infra Part II for comment that one's claim as an omittedchild may be brought any time before the estate's distribution isfinal. ↩
  13. This mid-probate order bears a close analogy to one that denies intervention. Both result inshuttingthe aggrieved partyoutof participating in proceedings yet to be conducted in the case. The order that denies intervention is appealable as final. Rule 1.10(a)(14)(5), Rules of Appellate Procedure in Civil Cases, 12 O.S. 1991 Ch. 15, App. 2;Stubblefield v. GeneralMotors Acceptance Corp.,Okla.,619 P.2d 620, 624 (1980). ↩
  14. See supranote 11 for the terms of the omitted-child statute, 84 O.S. 1991 § 132[84-132]. ↩
  15. Fisher v. Gear,196 Okla. 18,162 P.2d 182, 183 (1945). A will may be contested before its admission to probate, 58 O.S. 1991 § 29[58-29], or in a post-probate will contest within three months of its admission, 58 O.S. 1991 § 61[58-61]. ↩
  16. Fisher, supranote 15 at 183 of 162 P.2d. ↩
  17. In Re Tayrien's Estate,207 Okla. 401,250 P.2d 16(1952). Some cases suggest thatTayrienstands for the proposition that the "proper" time to raiseany fact decisive ofheirship and distributionis byobjection to the final accountand decree of distribution. See, e.g., In Re Rettenmeyer'sEstate,Okla.,345 P.2d 872, 878 (1959) and the cases it cites. This view ofTayrien is overbroad. Tayrienteaches only that one claiming pretermitted-heir status may not seek predecree distribution of the estate, not that an application to determine omitted-child status may not be brought as a collateral proceeding anterior to the estate's distribution. ↩
  18. The pertinent terms of 58 O.S. 1991 § 621[58-621] are:

    "At any time after the lapse of three (3) months from the issuing of letters testamentary . . .any heir,devisee, or legatee. . . may present hispetitionto the court for the legacy or share of the estate towhich he is entitled,to be given to him upon his giving bond, with security, for the payment of his proportion of the debts of the estate unless said bond is not required by the court." [Emphasis mine.] ↩
  19. In re Coyne's Estate,103 Okla. 279,229 P. 630(1924). ↩
  20. SeeMatter of Estate of Severns,Okla.,650 P.2d 854(1982);Arment v. Shriner's Crippled Children's Hospitals,Okla.,298 P.2d 1048(1956). ↩
  21. We have expressed concern forexpediencyin the prosecution ofall post-probate will challenges. Matter ofEstate of Speake,Okla.,743 P.2d 648, 653 (1987). Judicial concern for expediency should not be reserved for a particular kind of probate challenge. Final resolution of omitted-heirship contestsbefore the estate's settlementis consistent with should principles of judicial economy. ↩
  22. A decree of distribution is conclusive as to the rights of heirs, legatees, or devisees. It is, of course, subject to reversal or modification on appeal. 58 O.S. 1991 § 632[58-632].SeeBuford v. Stuart,Okla.,412 P.2d 169, 174 (1966);Oberlander v.Eddington,Okla.,391 P.2d 889(1964). ↩
  23. Had the trial courtallowedthe children the omitted-heir status they sought, I would not view its order as appealable. It wouldleave the parties below to have theremaining issues tried. See Sokolosky v. Black, SivallsBryson,197 Okla. 68,168 P.2d 618, 619 (1946). We are accustomed to dealing differently with appealability of opposite rulings upon the same issue. A dichotomous approach governs summary judgment process. A summary judgment'sdenialmaynotbe appealed.SeeRule 1.50, Rules of Appellate Procedure in Civil Cases, 12 O.S. 1991 Ch. 15 App. 2. Yet, summary judgment is appealable.See, e.g., Frey v. Independence Fire Cas. Co.,Okla.698 P.2d 17, 20 (1985). ↩
  24. "Collateral orders" in the federal-law sense are appealable as final decisions without regard to the mainstream litigation's posture. To fit within this class an order must dispose of a claimed right that is not an essential ingredient of the main cause and can be considered separately from it.Cohenv. Beneficial Industrial Loan Corp.,337 U.S. 541, 546-547, 69 S.Ct. 1221, 1226, 93 L.Ed. 1528 (1949). ↩
  25. Cohen, supranote 24 at 546-547, 69 S.Ct. at 1226. A classic example of the collateral order is afforded by Rule 11 sanctions.SeeFed. Rules Civ. Proc.Rule 11, 28 U.S.C.A. A Rule 11 order is like the imposition of costs, attorney's fees and contempt punishment. It isdehorsthe merits of an action; it decides a collateral issue. The proceeding focuses on abuse of judicial process, and, if one be found, on an appropriate sanction.Cooter Gell v. Hartmarx Corp.,496 U.S. 384, 385, 110 S.Ct. 2447, 2450, 110 L.Ed.2d 359, 376 (1990). Collateral order review is particularly appropriate when the sanction is against anon-partywho should not be expected to wait for appeal until the litigation's termination.See De Sisto College,Inc. v. Line,888 F.2d 755, 762 (11th Cir. 1989);see alsoRiverhead Sav. Bank v. National Mortg. Equity Corp.,893 F.2d 1109, 1114 (9th Cir. 1990). ↩
  26. The pertinent terms of 28 U.S.C.A. § 1291 are:

    "The courts of appeals shall have jurisdiction of appeals from allfinal decisionsof the district courts of the United States . . . except where a direct review may be had in the Supreme Court. . . ." [Emphasis mine.]

    The collateral order doctrine is an "exception to the final judgment rule." It rests on the premise that a "`final decision' for purposes of § 1291" need not always be an action-terminating judgment.Abney v. United States,431 U.S. 651, 658-659, 97 S.Ct. 2034, 2039-2040, 52 L.Ed.2d 651 (1977). ↩
  27. See Coopers Lybrand v. Livesay,437 U.S. 463, 468, 98 S.Ct. 2454, 2457-2458, 57 L.Ed.2d 351 (1978), where the oft-quoted three-part formula for the collateral order doctrine was formulated.See also Rodriguez v. Banco Central,790 F.2d 172, 177 (1st Cir. 1986), where appeals in this class are found to rest upon "separability, finality, urgency, and importance."

    Federal courts are reluctant to expand the doctrine lest it erode the basic finality requirement and flood their dockets with collateral order appeals. The trend to keep the exception narrow is particularly evidence in criminal cases. 15A C. Wright, A. Miller E. Cooper,Federal Practice and Procedure Jurisdiction2d§ 3911 at 353-356 (1984).See Flanagan v. United States,465 U.S. 259, 265-266, 104 S.Ct. 1051, 1055, 79 L.Ed.2d 288 (1984), where the United States Supreme Court rejected the immediate appeal of a district court's pretrial disqualification of defense counsel in a criminal prosecution. ↩
  28. A judicial determination of heirship — either under 84 O.S. 1991 § 251[84-251] and 252 or under 58 O.S. 1991 § 631[58-631] and 634 — is always in the main-stream.All those claiming asheirs stand in the same legal position.A trial court's ruling identifying less than all of the heirs would be interlocutory.Thecourt must determine all the heirs; it may not leave undetermined anyon-track issues. State v. District Court of Osage County,190 Okla. 659,126 P.2d 255(1942). By contrast, the children here do not seek a judicial determination ofheirs.Rather, their sidetrack quest is forspecial statusto be conferred by § 132, independent of the probate in which the court will determine the testamentary gift recipients. See supra note 11 for the terms of 84 O.S. 1991 § 132[84-132].No other issues remain to be decided inthe collateral proceeding for omitted-heirship status. ↩
  29. In probate one court may be called upon to determine a number of off-track contests. For example, a widow may elect to take a statutory share or a party may seek enforcement of an antenuptial agreement.See84 O.S. 1991 § 44[84-44](B)(1). ↩
  30. See supranote 10 for an explanation ofademption. ↩
  31. See Oklahomans For Life, Inc. v. State Fair of Okla.,Okla.,634 P.2d 704, 706 (1981),where the dismissal of a partydefendant was held to be terminal and hence at once appealable asa final order.

    Ordinarily, an order's finality is not measured by its impact upon the aggrieved party, but rather by the effect it has on the termination of the proceedings.In re Estate of Caldwell,Okla.,692 P.2d 1380, 1381 n. 5 (1984). Where the proceeding is trulycollateral to the mainstream,the focus should be upon the order'stermination of the independent off-track contestrather than on its effect upon the mainstream issues. For example,thedetermination that a child may be adopted without a parents'consent must be made in an ancillary proceeding anterior to thedecree. See10 O.S. 1991 §§ 60.5[10-60.5] and 60.6 [10-60.6];Matter of Adoption of J.L.H.,Okla.,737 P.2d 915, 918 n. 6 (1987). If a child is declared eligible for a consentless adoption,a decision adverse to thenon-consenting parent is at once appealable as final eventhough the adoption proceeding stands short of completion. SeeAdoption of J.L.H., supraat 918. ↩
  32. After denial of their omitted-heir status appellants would no longer occupy the position of "parties," i.e. active participants in the probate; rather, they would be relegated to "interested parties" status.Matter of Estate of Goyne,Okla.,733 P.2d 391, 394-395 (1987). ↩
  33. The settled-law-of-the-case doctrine bars relitigation of issues that have been resolved by an earlier appellate opinion in that case.Reeves v. Agee,Okla.,769 P.2d 745, 756 n. 46 (1989);Timmons v. Royal Globe Ins., Co.,Okla.,713 P.2d 589, 592 (1986);Mullins v. Ward,Okla.,712 P.2d 55, 61 n. 13 (1985);Mobbs v. City of Lehigh,Okla.,655 P.2d 547, 549 n. 5 (1982). If this appeal were to be entertained and decided, the doctrine would apply to bar later relitigation ofthe sameissues.

    When, as here, several cognate matters are litigated in the framework of one case, there may be several successive final and appealable orders, although the law contemplates but one judgment that disposes of the main action.Stubblefield,supra note 13 at 624;State ex rel Board of Public Affairs v. Neff,205 Okla. 205,236 P.2d 681, 683 (1951). ↩
  34. Without omitted-child status, petitioners havenostanding to participate in the estate's administration.Seesupranote 32. Their only recourse is to stand by while the estate is administered and then appeal from the distribution decree. Property may be distributed during the estate's administration which might be lost before an appeal from the final decree could be lodged. Bond requirements, such as those provided where partial distribution is permitted, i.e., 58 O.S. 1991 § 621[58-621],supranote 18, may afford little protection to parties who have no standing to ensure that statutory safeguards are enforced. ↩
  35. See Watchorn Basin Assn. v. Oklahoma Gas Elec. Co.,Okla.,525 P.2d 1357, 1359 (1974), where the court held that the trial court's adjudication of the condemnor's right to condemn is appealable as a final order;see also Town of Ames v. Wybrant,203 Okla. 307,220 P.2d 693, 695-696 (1950).There the condemnorthreatened to take possession of the property before a challengeto its right to condemn had been heard.The court held the landowner may challenge the right to condemn and test that decision on appealprior to final determination of the award fordamages.If those who assert their omitted-heir status in probate must wait until the estate's distribution to have their rights determined,they will suffer hardship similar to that ofcondemnees— possibledeliveryof assets to othersbeforetheir own claim to ownership has been decided. ↩
  36. The terms of 12 O.S. 1991 § 100[12-100] provide in pertinent part:

    ". . . [I]f the plaintiff [should] fail in [an] action . . .otherwise than upon the merits,[he] . . . maycommence a new action within one (1) yearafter the reversal or failure. . . ." [Emphasis mine.] ↩
  37. The pertinent terms of 12 O.S. 1991 § 2012[12-2012] G. are:

    "On granting a motion to dismiss a claim for relief, the court shall grant leave to amend if the defect can be remedied. . . . If [an] amended pleading is not filed within the time allowed, final judgment of dismissal with prejudice shall be entered. . . .Within the time allowed by the court for filing anamended pleading, a plaintiff may voluntarily dismissthe action without prejudice." [Emphasis mine.]See Kelly v. Abbott,Okla.,781 P.2d 1188, 1190-1191 (1989).

    Before adoption of the Oklahoma Pleading Code, 12 O.S. 1991 §§ 2001[12-2001]et seq.,an order sustaining a demurrer to the petition was appealable as final if the plaintiff elected to stand on the petition and refused to plead further.See Merchants DeliveryService, Inc. v. Joe Esco Tire Co.,Okla.,533 P.2d 601(1975);State Ins. Fund v. Trieschmann,206 Okla. 533,244 P.2d 1128, 1131 (1952);Southwestern Natural Gas Co. v. Vernor,178 Okla. 344,62 P.2d 1262, 1265 (1936). ↩
  38. Martin v. District Court of Comanche County,Okla.,460 P.2d 898, 899 (1969);Marks v. McCune Const. Co.,Okla.,370 P.2d 560(1962) (Syllabus ¶ 1);Harder v. Woodside,196 Okla. 449,165 P.2d 841, 842 (1946);Webster v. Crump,117 Okla. 244,246 P. 423, 424 (1926). ↩
  39. For the complete text of subdivision 7,see supranote 3. The children have been refused a distributive share of the estate. ↩
  40. Rule 1.10, Rules of Appellate Procedure in Civil Cases, 12 O.S. 1991 Ch. 15, App. 2, provides in pertinent part:

    ". . . A judgment includes any judgment orfinalorderappealable under the provisions of:

    * * * * * *

    (9)58 O.S. 1981 § 721[58-721] Subdiv. (7)* * *" [Emphasis mine.] ↩
  41. See,e.g.,Estate of Griffin,Okla.,554 P.2d 785, 787 (1976), where the court holds that orders within the purview of subdivision 7 are appealable as final. ↩
  42. Okla.,394 P.2d 515, 520 (1964). ↩
  43. Hale v. Bd. of Cty. Com'rs. of Seminole Cty.,Okla.,603 P.2d 761, 764 (1979);Isbell v. State, Etc.,Okla.,603 P.2d 758, 760 (1979) (Opala, J., concurring specially).Hale'sandIsbell'srationale followed that ofPoafpybitty,where the court applied prospectively its pronouncement on motions for new trial for review of errors in determining an issue of law. InHalethe aggrieved party timely appealed to the Court of Criminal Appeals from an adverse judgment on a jury verdict in an ouster proceeding. Because the law was unclear whether the case should have been brought to the Supreme Court, we (a) saved the appeal timely filedin the wrong courtand (b) treated it as though it had been filedin this court.The appellant inIsbellcommenced an appeal after lapse of the 30-day period provided for APA-governed cases. She relied on a 60-day statute still on the books. We saved her appeal from the trap of a not-so-readily detectable change in statutory law.See alsotwo examples of our recentpurely prospectiveapplication given to appellate procedure drawn from obscurely articulated statutes inJaco Production Company v. Luca,Okla.,823 P.2d 364, 364-365 (1992) andHeimbach v. Guiney,Okla.,827 P.2d 170(1992). ↩
  44. See supranote 17. ↩
  45. The pertinent terms of 12 O.S. 1991 § 1006[12-1006] are:

    "When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the preparation and filing of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the filing of judgment.In the absence of suchdetermination and direction, any order or other formof decision, however designated, which adjudicatesfewer than all the claims or the rights andliabilities of fewer than all the parties shall notterminate the action . . . ." [Emphasis mine.] ↩
  46. The terms of 12 O.S. 1991 § 681[12-681] are:

    "A judgment is thefinaldetermination of the rights of the parties in an action." [Emphasis mine.] ↩
  47. The pertinent terms of 12 O.S. 1991 § 952[12-952](a) are:

    "The Supreme Court may reverse, vacate or modifyjudgments of the districtcourt for errors appearing on the record, and in the reversal of such judgment may reverse, vacate or modify any intermediate order involving the merits of the action, or any portion thereof." [Emphasis mine.] ↩
  48. An unterminated probate is one which isat a stageanterior tothe entry of a decree of distribution.See supranote 22. ↩
  49. For the terms of 58 O.S. 1991 § 721[58-721](7),see supranote 3. ↩
  50. See supranote 6 for the meaning of "collateral" and "off-track" in this dissent. ↩
  51. See supranote 32 for the difference between the status occupied by a"party"and that of an"interested party." Seealso supra note 34 for the comment that petitioners' lack ofstanding leaves them exposed to problems that may occur in thelast phase of the estate's administration. ↩
  52. See supranotes 42 43. ↩