This is an appeal by the plaintiff in error in an action for damages brought by him for failure of the defendants in error to deliver a legacy consisting of certain theatrical equipment. Answers of the respective defendants consisted of general denials and a plea of estoppel in pais. Trial was had to a jury and resulted in a verdict in favor of the defendants. Since the parties occupied the same position in the lower court as here, they will be referred to herein as plaintiff and defendants.
There is little controversy over the essential facts. Plaintiff was bequeathed certain personal property by the will of Lloyd C. House, which property was delivered to and accepted by him before the will of his testator was admitted to probate and before letters testamentary were issued to the executor nominated in said will. In the general inventory and appraisement, which was filed more than a year thereafter, the property so bequeathed to the plaintiff was listed as a part the assets of the estate and was directed to be delivered to the plaintiff by decree of distribution entered by the probate court in October, 1932. The property had been taken from the possession of the plaintiff in May, 1932, in an action in replevin brought by the landlords of the plaintiff, and in which action the executor, Denver N. Davison, was not a party. Thereafter in 1935, the plaintiff made demand upon Denver N. Davison for the property, and upon the failure of said defendant to comply therewith, brought this action.
The plaintiff assigns nine specifications of error which he urges under the following general propositions, to wit: Error in the admission of evidence showing that he had received the legacy bequeathed him; error in giving instructions Nos. 4, 5, and 6; and error in refusing to give certain instructions. All of the contentions made resolve themselves into but one question and that is whether a delivery of a legacy may be made by an executor prior to a decree of distribution; that the plaintiff actually received the property bequeathed to him and used and claimed the same as his own until he lost it in the replevin action was admitted by his testimony from the witness stand, but he urges that, because the executor in filing his inventory and general appraisement thereafter listed such property therein and the decree of distribution subsequently entered vested title to said property in the plaintiff and directed that it be distributed to him, therefore the executor should not have been permitted to offer evidence to the effect that the plaintiff had actually and in fact received the specific property which had been bequeathed to him. In support of this contention we are cited to the cases of: Bluejacket State Bank v. First National Bank of Bluejacket, 155 Okla. 300,9 P.2d 2; Hutson v. McConnell, 139 Okla. 240, 281 P. 760; Johnson v. First National Bank, 93 Okla. 194, 220 P. 47; Lusk v. Green, 114 Okla. 113, 245 P. 636; Pennington v. Newman,36 Okla. 594, 129 P. 693; Territory v. Cooper, 11 Okla. 699,69 P. 813; United States Fidelity Guaranty Company v. Clutter,74 Okla. 254, 179 P. 754; sections 1208, 1359, and 1381, O. S. 1931. A mere examination of the sections of the statute and the decisions cited is sufficient to show that they have no application to a fact situation such as is here involved and do not support the point which plaintiff seeks to make.
The common-law rule which permitted an executor before a probate to take possession and to distribute the personalty of his testator and to perform almost any act pertaining *Page 608 to his office except to bring or defend suits has never prevailed in this country. Yet it has not infrequently been held that letters testamentary relate back to the date of the testator's death, after the will is probated, and validate acts done by the executor in the line of his duty before he is qualified (Mettler v. Warner, 243 Ill. 600, 90 N.E. 1099, 134 A. S. R. 388; Baker v. Cauthorn, 23 Ind. App. 611, 55 N.E. 963, 77 A. S. R. 443); and in the case of Langely v. Farmington, 66 N.H. 431, 27 A. 224, 49 A. S. R. 624, it was held that where payment was made to an executor named in a will who, without appointment of any court, administered the estate according to the terms of the will, such payment was a good defense to an action on the same demand brought by an administrator subsequently appointed for the same estate.
We are of the opinion that such is not only sound law, but comports with right and justice, As said by this court in the case of Parks v. Lefeber, 162 Okla. 265, 20 P.2d 179:
"Under the statutes of Oklahoma, the title to property devised or bequeathed by the terms of a will passes by operation of law to the devisees and legatees, in accordance with the provisions of the will, immediately upon the death of the testator, subject to the control of the county court for the purpose of administration, to sale by order of the county court for the purpose of paying the debts of the decedent, costs of administration, or such other charges as may exist against it, subject to partition by order of the county court, and subject to such other orders as the county court is authorized to make with reference thereto."
And further said in the body of the opinion as follows:
"A rule requiring an executor to file an inventory and to account as such in no wise operates to deprive a devisee of authority to convey the property devised to him."
In view of what has been said above, we can perceive no valid reason why an executor may not deliver a bequest to a legatee without delay if the executor is willing to do so and to accept the liability to creditors which would thereby be imposed upon him, nor why the legatee should not be willing to take such legacy, since the legatee thereby receives all that he is entitled to under the terms of the will without any further liability than would rest upon him should the delivery of the legacy be delayed until after the decree of distribution is entered.
We are therefore of the opinion that, when the plaintiff received, accepted, and used and claimed as his own the property which had been bequeathed to him, in an action by him against the executor for the value of said property, proof of such facts was properly admissible, and that the trial court did not err in admitting such evidence. In our opinion, this is not a collateral attack upon the record of the court or any of its proceedings, but a statement by the defendant, Davison, showing that the property had been delivered to the plaintiff, Russell.
The errors urged with reference to certain instructions given and with respect to certain other requested instructions refused are predicated upon the alleged error in the admission of evidence which we have discussed above, and since we have held to the contrary, they of necessity fall, and it will not be necessary to discuss them separately. We think the instructions as a whole fairly state the law applicable to the facts, and we fail to find prejudicial error in giving the instructions complained of. The record herein shows that the plaintiff was seeking to recover that which he had already received. The jury, who heard the evidence, under the instructions of the court has rendered an adverse verdict to the plaintiff, and we find no good reason for disturbing the verdict.
The judgment is therefore affirmed.
COOK, C. J., and SMITH, BODDIE, JETER, WILSON, McMAHAN, and BRUNSON, JJ., concur. BAILEY, J., concurs in conclusion.
All Justices of the court having certified their disqualification in the above cause, the following members of the bar were appointed by the Governor to serve as Special Justices: L. Keith Smith, of Jay; Omar M. Hudson, of Stigler; M.F. Boddie, of Oklahoma City; W.T. Jeter, of Mangum; L.T. Cook, of Purcell; R.O. Wilson, of Ponca City; C.B. McMahan, of Okmulgee; D.D. Brunson, of Ada; J.T. Bailey, of Cordell.