Murg v. Barnsdall Nursing Home10/18/2005
ured creditor is not an "interested party", then a defendant in a wrongful death action, that alleges it may be a "potential creditor" or a "potential debtor" of the estate fails to meet the requirements of a party "interested" in the probate proceeding. In Dilley, the petition concerned an accounting, whereas in the instant case, the petition concerns removal of the son as Special Personal Representative. Since a secured creditor is not an "interested party" and lacks standing to petition an accounting, a fortiori, a defendant in a wrongful death lawsuit is not an "interested party" and lacks standing to petition for the decedent's son's removal as Special Personal Representative.
Those entitled to contest a petition praying for letters of administration include those entitled to notice of hearing for the same, pursuant to 58 O.S. 2001, § 128 , and any "interested person" as provided in 58 O.S. 2001, § 129 , and in accordance with the provisions of 58 O.S. 2001, § 130 . We note that Section 129 sets out two bases for an "interested person" to contest a petition, to-wit: 1) on the grounds of the applicant's incompetence, or 2) to assert his own rights and pray that letters be issued to himself. Barnsdall fails to contest the petition on either basis, and is not an "interested person" in the decedent's probate. We have held that persons allowed to challenge a petition for letters of administration include the guardian of the decedent's minor child. Sparks v. Steele, 1972 OK 127, 501 P.2d 1106. In Sparks, the guardian of the decedent's minor child argued that unless she were appointed, a wrongful death action arising from the father's death would be tried, or settled, without due consideration for the rights and interests of her ward, a minor and sole heir-at-law of the decedent. Similarly, in the case at bar, unless Murg, Jr., is appointed, the wrongful death action arising from his mother's death not only could be tried or settled without due consideration for his rights and interests, but in fact was declined by Murg, Sr. In the instant matter, it is the defendant, Barnsdall, a nursing home, that comes before us, asking that we hold Murg, Jr.'s appointment void ab initio. In Sparks, the wrongful death lawsuit's defendant was a railroad. The defendant railroad therein lacked standing to protest the appointment of the decedent's father and the subsequent appointment of decedent's minor child's guardian, to avoid the wrongful death action against it. Barnsdall, as a defendant in the wrongful death action, has no greater standing in the case at bar than the defendant railroad in Sparks. Indeed, neither potential wrongful death lawsuit defendant has standing to contest the appointment of a personal representative to pursue the estate's claim against it.
By statute, as set forth hereinabove, if one contests the petition, he may assert his own rights to the administration. However, Barnsdall has no rights to the administration, and cannot contest the petition as an interested person, under the applicable statute. Further, insofar as Sections 129 and 130 are concerned, the statutory language contained therein needs no interpretation. Murg, Jr.'s right to appointment is higher in priority to that of any person save his father, who was discharged and released, his letters testamentary set aside and cancelled by order of the probate court. As the decedent's son, Murg, Jr., has a pecuniary interest in the estate that is protected by statute. His appointment was appropriate.
In the matter before us, Barnsdall is not a proper party to challenge Murg, Jr.'s appointment. It is not an interested party as a statutory heir of the decedent, under 58 O.S. 2001, § 213, nor is it eligible to petition f
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