Murg v. Barnsdall Nursing Home10/18/2005
ersonal representative). Such a conflict existed for Murg, Sr., when he elected not to pursue the wrongful death action, resulting in a conflict of interest with his son, the other heir and potential beneficiary of the proceeds, if any, from such a lawsuit.
Duty of Personal Representative to Preserve the Estate
In interpreting the wrongful death statute that predates our current applicable statutes, we held that the proceeds of the recovery in a wrongful death action did not constitute assets of the estate. Baltimore American Ins. Co. v. Cannon, 1937 OK 572, 73 P.2d 167. While we decline to disturb our holding therein, we determine that in the instant matter, the potential wrongful death claim against Barnsdall constitutes a potential debt owed by the nursing home to the decedent's estate, under the limited facts of this case, in which the only surviving heirs at law, to whom the estate passes, are the decedent's surviving spouse and biological adult child. Murg, Sr., may have had a prior right to appointment as personal representative. However, his refusal to pursue a wrongful death action against Barnsdall affected a substantial right and interest that his son, as the remaining heir, possessed in the estate. A personal representative has a duty to preserve the estate. Indeed, we have upheld removal of an executor not only on the basis of a conflict of interest, but also on the basis that a co-executor took no action to recover a debt. See, Matter of Estate of Walker, 1985 OK 2, 695 P.2d 1. Murg, Sr.'s refusal to fulfill his duty to pursue a viable wrongful death action, the proceeds of which would constitute a debt owed to the estate, also created the necessity for the appointment of Murg, Jr., as Special Personal Representative.
Statutory Guidelines for Appointment of Special Administrators
The statutes concerning appointment of special administrators are found in 58 O.S.2001, §§ 211-217. Title 58 O.S. 2001, § 211 provides for the appointment of a special administrator when an administrator or executor is removed. The Final Decree and Decree of Distribution discharged and released Murg, Sr., as personal representative, and cancelled and set aside his letters testamentary. At this time, Murg, Jr.'s application for Appointment of Special Personal Representative had been on file six days, according to the Osage County Court Clerk file stamps on these documents. For purposes of 58 O.S. 2001, § 211, we find sufficient evidence in the record to support Murg, Jr.'s contention that the appointment of a special personal representative occurred after removal of Murg, Sr., and thus was appropriate under the applicable statute. His appointment reopened the estate, and subsequent filings by Murg, Sr., to distribute estate funds for payment of funeral expenses and to settle a dispute with the Department of the Interior provide further evidence that the estate was reopened.
Barnsdall's Standing to Challenge Murg, Jr.'s Appointment
We now address Barnsdall's standing to challenge Murg, Jr.'s appointment. To have standing to contest letters of administration, a person must have an interest in the property a testator owned at his death, thereby classified as an "interested party." Mayweather v. Wallace, 1945 OK 148, 15, 159 P.2d 529, 530; In re Estate of Geller, 1999 OK CIV APP 45, 11, 980 P.2d 665, 668 (1999). A secured creditor is not an "interested party" in a probate proceeding, and has no standing. See, Matter of Estate of Dilley, 1996 OK CIV APP 64, 9, 919 P2d 458, 460 (1996)(wherein the court held that LEC Capital Corporation was not a party "interested" in the probate proceeding, and thus lacked standing to prosecute a petition). If a sec
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