[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.1 Today's opinion reasons that the order in contest is interlocutory2 and hence must be appealed,3 if at *Page 444 all, within thirty days of its rendition4 rather than thirty days after its filing.5 I 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")6 contest for pretermitted-heirship status. This appeal, brought within thirty days of the order'sfiling,7 is hence timely. I A[12] CRITICAL FACTS [13] The father's [testator's] will was admitted to probate.8 It 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,9 urging that since their testamentary gift failed by ademption,10 they should be declared11 to stand as omitted *Page 445 heirs.12 In 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 an ancillary contestanterior to the estate's distribution pursuant to the will. It ended with the December 23rd order now under review, which concluded the off-track contest between the estate and the children qua omitted 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 statute14 prescribes 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 may not be raised as a barrier to the will's admission to probate nor in a post-probate will contest.15 If 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.16 One claiming omitted-heirship status may not seekpartial distribution17 of the estate within the parameters of 58 O.S. 1991 § 621[58-621];18 *Page 446 predecree distribution is reserved for those whose right to inherit is unclouded.19 While one may, of course, bring a claim for omitted-heirship status as an objection to the estate fiduciary's final account and petition for distribution,20 an earlier resolution of the contest is nowhere inhibited.21 So 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.22 Once the claimed status is denied,23 the 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.24 The doctrine governing this class of decisions permits midstream appeals from certain orders that do not terminate a federal-court action.25 Its origin is found in the United States Supreme Court's expansive interpretation of the finality requirement in 28 U.S.C.A. § 1291.26 Within this rather small class of at-once appealable off-track orders are those which (1) finally decide claims *Page 447 separable 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.27 In my view the decision here under consideration substantially touches, if not totally meets, allthe criteria of a collateral order.
[19] The mainstream proceeding in a testate decedent's probate is the orderly administration of the estate for final distribution in accordance with the will.28 The 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 brought a contest quite apart from the probate's mainstream. Because of their legacy's ademption they will take nothing under the will's terms.30 In a very real sense the court's off-track disposition of their application shut them out of the case;31 they 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 before *Page 448 us would become the settled law of the case.33 As a practical matter, the trial court has conclusively settled the disputed question.34 Although 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 relief after 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 renewed before 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" is no bar to an action's later refiling;36 yet thedismissal or termination order is at once appealable asfinal;37 and lastly, (3) an order quashing process is no bar to issuance of an alias summons; yet the order is at onceappealable as final.38 All these orders, just as the one *Page 449 considered 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."39 Rule 1.1040 indicates by reference thatsubdivision 7 orders are appealable as final. Extant jurisprudence refers to subdivision 7 orders as final.41 Statute, rule, and case law together give the appearance of 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 of Poafpybitty v. Skelly Oil Company42 and its progeny,43 this 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 today purely prospective application 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 overrule Tayrien44 butonly insofar 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 notgauge this mid-probate order's finality by tacitly applying, as the court does today, the notions of § 100645 — *Page 450 whose appealability standards require everyone's claim to have been decided below. Nor would I apply the § 68146 criteria, which define as "judgment" — in the § 952(a)47 appealability sense — only that nisi prius disposition which resolves all the issues on the merits of an action. None of these sectionsgoverns probate appeals. The court's tenacious commitment to these irrelevant gauges is without any legal warrant. Anunterminated probate,48 like 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 share of the estate within the meaning of § 721(7),49 (b) terminates their mid-probate collateral (off-track)50 contest, and (c) in a real sense dismisses them as "parties" to this probate,51 I 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 be purely prospective in keeping with the teachings of Hale,Isbell and Poafpybitty.52
The practical remedial distinction between interlocutory appeals and those from final orders ancillary to the mainaction is that the statutory trigger for the two types of midstream appeals differs. Interlocutory orders are appealable within thirty days of the decision's pronouncement 12 O.S. 1991 § 993[12-993], infra note 4. The thirty-day period for appealing fromfinal orders runs from the date they are filed. 12 O.S. 1991 § 990A[12-990A](A), infra note 5.
"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 or the payment of a debt, claim, legacy or distributive 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.]
". . . [T]he party aggrieved thereby may appeal the order to the Supreme Court without awaiting the final determination in said cause, by filing the petition in error and the record on appeal with the Supreme Court within thirty (30) days after the order is issued. . . ." [Emphasis mine.]
See also Rule 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 the date of the hearing at which the order was issued if the appellant or the appellant's attorney were present. * * *" [Emphasis mine.]
"An appeal to the Supreme Court may be commenced by filing a petition in error with the Clerk of the Supreme Court within thirty (30) days from the date the final order or judgment is filed. . . ." [Emphasis mine.]
"When any testator omits to provide in his will for any of his children . . . unless it appears that such omission was intentional, such child . . . must have the same 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.]
"(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 after the 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 been intentional and to instances where the testator provided for the omitted after-born or after-adopted child outside 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.
"At any time after the lapse of three (3) months from the issuing of letters testamentary . . . any heir, devisee, or legatee . . . may present his petition to the court for the legacy or share of the estate to which 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.]
"The courts of appeals shall have jurisdiction of appeals from all final decisions of 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).
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.
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's termination of the independent off-track contest rather 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. See 10 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., supra at 918.
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).
". . . [I]f the plaintiff [should] fail in [an] action . . . otherwise than upon the merits, [he] . . . may commence a new action within one (1) year after the reversal or failure. . . ." [Emphasis mine.]
"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 an amended pleading, a plaintiff may voluntarily dismiss the 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).
". . . A judgment includes any judgment or final order appealable under the provisions of:
* * * * * *
(9) 58 O.S. 1981 § 721[58-721] Subdiv. (7) * * *" [Emphasis mine.]
"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 such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action . . . ." [Emphasis mine.]
"A judgment is the final determination of the rights of the parties in an action." [Emphasis mine.]
"The Supreme Court may reverse, vacate or modify judgments of the district court 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.]