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interest to the extent of his fees for will of the decedent which had been services already rendered, and a much admitted to probate in another state, more important interest as the repre- said that the complaint failed to show sentative of others, for, if there was a cause of action in any aspect of the no will, he had exclusive jurisdiction case in favor of the administrator, and control of all the personal prop- either in his own right or in his repreerty of the decedent . for the sentative capacity, or jointly with his purpose of administration. He repre- coplaintiffs; and that it was very clear sented the beneficiaries, who were that the administrator of a decedent, the substantial owners of the prop- even in the case of a domestic will, erty. Probate of a will, however, cannot maintain an action to contest would deprive him of power to ad- its validity and resist or set aside the minister, and leave the validity of all probate thereof. his acts before he heard that there And in Re Sanborn (1893) 98 Cal. was a will open to question. He had 103, 32 Pac. 865, in holding that the an interest to protect and the right to public administrator had no right to become a party to the proceeding, so contest the probate of a will, the court as to see that no paper purporting to said that “the probate of a will can be a will of the decedent was admitted be contested only upon the written to probate unless it was genuine and grounds of opposition' filed by a 'perexecuted by a competent person ac- son interested,'—that is, interested in cording to law.”

the estate, and not in the mere fees Also in Watson v. Alderson (1898) of an administration thereof." 146 Mo. 333, 69 Am. St. Rep. 615, 48 So, in Re Parsons (1884) 65 Cal. S. W. 478, it was held that, independ- 240, 3 Pac. 817, where, after appointently of the pecuniary results to them ment of an administrator, a document of the contest, children of the testa- purporting to be the will of the detor, who, in the absence of a will, had ceased was offered for probate and a right of administration, were inter- the administrator successfully conested parties, entitled to contest tested probate of the same, the court, the will, since their title to the in holding that fees of attorneys for personal estate of the deceased services rendered in the contest were was involved and their right to ad- not a proper charge against the estate minister it would be devested by the of the decedent, said: "It was the probate of the will or established by affair of the heirs, as such, to contest, its rejection; so that a refusal to if they wished, the probate of the permit them to contest the will, based document, not of the administrator. on the ground that they would take The latter is an officer to administer the same under the will as by inherit- the estate for the benefit of those inance, was held erroneous.

terested, leaving interested parties to In Doran v. Mullen (1875) 78 Ill. settle their own differences.” 343, among doubtless other cases of It has been held, also, that the conthe kind, consideration was given on tingent right of administration of a the merits to an appeal from the pro- husband's estate possessed by his bate of a will, by an administrator ap- widow, who is not bound by the will, pointed prior to the discovery of the is not an interest in the estate entitling will, the right of the administrator to her to dispute the will. McMasters appeal not being apparently ques- v. Blair (1857) 29 Pa. 298. tioned.

And in Fallon v. Fallon (1898) 107 A different conclusion has, however, Iowa, 120, 77 N. W. 575, it was held been reached in other jurisdictions. that the right of administration con

Thus, in Harris v. Harris (1878) 61 ferred by statute first on the widow Ind. 117, the court, in holding that the did not of itself give her such an interadministrator and the heirs of the est in the estate as entitled her to condecedent did not have a joint cause test the will. The court said that, since of action to contest the admission to the share of the widow could not be probate in that state of an alleged affected by the will without her consent, her interest in the administra- the codicil making no change in the tion of the estate was little more than will except to substitute the testathat of a stranger.

tor's son as executor. So that the To similar effect is Egbert v. Eg- case did not call for a decision as to bert (1920) 186 Ky. 486, 217 S. W. the executor's possible duty to defend 365, where, under statute, the widow the will as a representative of other had a preferred right to administer interested parties. The same observaon her husband's estate, it being held tions apply to the Stewart Case that as the court had a discretion in (Iowa) supra, the codicil making no the matter of her appointment, and substantial change except to revoke her right of administration was there- the appointment of the executors and fore not absolute, but contingent, it substitute another in their place. did not give her such an interest in Opposing in result the conclusion the estate as entitled her to contest reached in the two cases above cited the will.

is Re Greeley (1873) 15 Abb. Pr. N. S. It was held in Re Wempe (1921) 185 (N. Y.) 393, in which it was held that Cal. 557, 197 Pac. 949, that the fact executors in a will of prior date to that one petitioned to be administra- that propounded had a right to oppose tor with the will annexed did not pre- the probate of the subsequent will. clude a subsequent contest of the will And there is an intimation that this on the ground of lack of testamentary is true even if the beneficiaries in the capacity, where, in his petition, he former will have released their interstated that he did not know whether est under it. It was said: “Our stator not the decedent was of unsound ute ... provides that the executor, mind when the instrument, which was devisee, or legatee named in any last offered for probate by a third person, will, or any person interested in the was executed, but prayed that, if it estate, may have the will proved. Any were admitted to probate, he should interest, however slight, and even, it be appointed administrator with the seems, the bare possibility of an inwill annexed.

terest, is sufficient to entitle a party III. Executors.

to oppose a testamentary paper. The authorities are in conflict, in

The executors named in the will of result at least, as to the right of an

1871 have clearly, by statute, an exexecutor named in a will to contest a

press right to have that will proved, if subsequent will or codicil. The re

they can establish the fact that it is ported case (HELFRICH v. YOCKEL,

the last will, and they may rightfully ante, 323) is an important one, deny

contend against the validity of any ing this right, and its decision is sup

alleged subsequent will as an obstacle ported by the Iowa case from which

in the way of establishing the will unit quotes (Stewart v. Ferry (1898) 107

der which they claim. Their interest

in this regard is very apparent. For, Iowa, 117, 77 N. W. 574), in which it was held that persons whose only in

if they can succeed in establishing terest was as executors were not en

their will, the title to the movable titled to oppose probate of a codicil

goods of the testator, though in ever in which their appointment was re

so many different and distinct places, voked.

vests in them, in possession. It may be observed that in the HELF

If, however, the will of 1872 should be RICH Case, which holds that the exec

established as the valid last will, then

the title would be elsewhere. Thus utor named in a will has no interest enabling him to caveat the probate

the proponent and contestants are of a codicil revoking his appointment trying their alleged titles.” and appointing another executor, the

And in Re Murphy*(1922) 153 Minn. executor first named was a stranger,

60, 189 N. W. 413, it was held that whose only possible interest to oppose

executors named in a will had such a the probate of the codicil arose ap- representative interest in the allowparently from the commissions which ance in probate thereof as entitled he would have received as executor, them to contest the probate of ar

V.

alleged subsequent will, making to revoke probate of the will, where other disposition of the property, on the other interested parties were not the ground that the latter was not exe- shown to have acted upon such adcuted by the decedent or, if so, was mission. The court took the view, procured by fraud and undue influ- also, that the motion to set aside the ence. It was said: "Whatever may probate was not the equivalent of an by the rule elsewhere, ... it must

application for leave to renounce the be deemed as settled in this state that executorship, so as to bring the widow the executors named in a will have within the rule against permitting one such a representative interest in the who has intermeddled as executor allowance and probate thereof as en- from renouncing the same. titles them to appear as champions of And in Molander Anderson the same in the courts of the state. (1919) 214 Ill. App. 446, it was held

.. They are in the same position, that one who was a beneficiary under from a legal viewpoint, as a legatee a will was not estopped merely by the in a will claimed to have been revoked fact that he was also a qualified exand superseded by one subsequently ecutor thereof, from contesting a executed.”

codicil which diminished his legacy. So, in Re Langley (1903) 140 Cal. It did not appear, the court said, that 126, 73 Pac. 824, it was held that the defendant had been placed in any an executor in a prior will apparently different position to her injury by reavalid, as to which probate proceedings son of the complainant's qualification were pending, was entitled to oppose as executor under the will. In this the probate of an alleged subsequent instance the contestant, after the will. The court said that it was the bringing of the suit to set aside the right and duty of the executor named probate of the codicil, had resigned in the prior will to defend it. And it and been discharged, but his right of was held not necessary in such a case action was held not to be affected by that it should appear that the prior this fact. And it was held that the will had been admitted to probate, the principles forbidding one who acts in executor named therein having a a trust capacity to deny the validity prima facie right to oppose the sub- of the trust while continuing so to sequent will.

act, and forbidding a tenant or trustee To similar effect is Connelly v. Sul- to claim adversely to the title under livan (1893) 50 Ill. App. 627, holding which he entered land without surthat one appointed executor by a will rendering possession, were not appliadmitted to probate has the right to cable. appeal from the probate. of a subse- Mansfield v. Shaw (1818) 3 Phillim. quent will, in which he is not named. Eccl. Rep. 22, 161 Eng. Reprint, 1246,

And in Re Coursen (1843) 4 N. J. and Boston v. Fox (1860) 29 L. J. Eq. 408, the court was of the opinion Prob. N. S. 68, 4 Swabey & T. 199, 164 that one of the executors name in Eng. Reprint, 1493, support the propothe will may caveat against proving sition that an executor in a prior will a codicil which substitutes a new co- has a right to call for proof in solemn executor to act with him. It was said form of an alleged subsequent will, there might be strong reason why this and to interrogate the witnesses. substitution should operate injurious- But it was held in Vinet v. Robert ly to the caveator, and that, as a gen- (1920) Rap. Jud. Quebec 59 C. S. 147, eral rule, all persons who might be in- that executors named in a will did not jured in admitting a will or codicil to represent the succession, for the purprobate might caveat against it. pose of attacking the validity of the

The admission of the validity of will, but that such resresentation bethe will by the testator's widow, longed to the heirs only; and that the through her qualification as executrix, executors could not themselves attack as named in the will, was held in the will under statute giving them Gaither v. Gaither (1857) 23 Ga. 521, the right to intervene in an action in not to be conclusive upon her, and not which the validity of the will was atto estop her from subsequently seeking tacked.

R. E. H.

OKLAHOMA NATURAL GAS COMPANY, Appt.,

V.
CORPORATION COMMISSION et al.

Oklahoma Supreme Court - December 19, 1922.

(88 Okla. 51, 211 Pac. 401.)

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Public Service Commission — power to compel service not undertaken.

1. The Corporation Commission is without power or authority to compel a public utility to furnish natural gas to a city, town, or community which it has not undertaken or professed to serve, and which it is under no obligation to serve, since to require the utility to serve such city, town, or community would be tantamount to the taking of private property for public use without just compensation.

[See note on this question beginning on page 333.] Public service when undertaken. inhabitants of certain cities and towns

2. A person enters the public busi- within the state with natural gas, the ness by professing or undertaking to Corporation Commission has power, serve the public; but his obligation to within constitutional and reasonable the public is limited by the extent of limitations, to compel such utility to his profession.

serve all inhabitants thereof who may Gas power to compel universal apply for such service. service.

[See 12 R. C. L. 890, 891; 2 R. L. 3. Where a public utility has un- Supp. 1502; 4 R. C. L. Supp. 772. See dertaken and professes to serve the also note in 21 A.L.R. 671.]

Headnotes by NICHOLSON, J.

APPEAL by defendant from an order of the Corporation Commission directing it to furnish to the plaintiff company natural gas for distribution to a city. Reversed.

The facts are stated in the opinion of the court.

Messrs. Ames, Chambers, Lowe, & 752, 192 S. W. 958, 198 S. W. 872; Richardson, for appellant:

State Pub. Utilities Commission ex rel. The commission was without power Wabash R. Co. v. Illinois C. R. Co. 274 and jurisdiction to make the order re- Ill. 36, 113 N. E. 162; People ex rel. quiring defendant to furnish natural Kelly v. Public Serv. Commission, 171 gas to a public utility and to a com- App. Div. 810, 157 N. Y. Supp. 703. munity which it had never thereto- Even if it should be conceded that fore served, and which it had never the commission had power, authority, assumed, undertaken, or professed to and jurisdiction to make the order, serve, and which it was unwilling to nevertheless the making of it was an undertake to serve.

erroneous exercise of said power in 1 Wyman, Pub. Serv. Corp. SS 250, that, under the facts, circumstances, 273; Re Ohio Fuel Supply Co. (Ohio) and conditions shown by the evidence, P.U.R.1921A, 628, affirmed in 102 Ohio the making of the order was unjust St. 574, 132 N. E. 151; State ex rel. and unreasonable. Ozark Power & Water Co. v. Public People ex rel. Pennsylvania Gas Co. Serv. Commission, 287 Mo. 522, 229 S. v. Public Serv. Commission, 196 App. W. 782; Shawnee Gas & E. Co. v. Cor- Div. 514, 189 N. Y. Supp. 478; Merporation Commission, 35 Okla. 454, 130 rill v. Southside Irrig. Co. 112 Cal. 426, Pac. 127; Atlantic Coast Line R. Co. 44 Pac. 720; San Diego Flume Co. v. v. State, 73 Fla. 609, 74 So. 595; Cin- Souther, 112 Fed. 228; Bardsly v. cinnati v. Public Utilities Commission, Boise Irrig. & Land Co. 8 Idaho, 155, 96 Ohio St. 270, 117 N. E. 381; State 67 Pac. 428; Shelby v. Farmers Co-op. ex rel. United R. Co. v. Public Serv. Ditch Co. 10 Idaho, 723, 80 Pac. 222; Commission, 270 Mo. 429, P.U.R.1917D, McDermont v. Anaheim Union Water

(88 Okla. 51, 211 Pac. 401.) Co. 124 Cal. 112, 56 Pac. 779; Brown distribution by other companies; it v. Farmers High Line Canal & Reser- owns and maintains a gas pipe line voir Co. 26 Colo. 66, 56 Pac. 183.

extending from the Duncan gas field Messrs. Bond, Melton, & Melton, for

north, through which it conveys gas appellees: The commission had the power to

to supply the towns and cities served make the order requiring defendant

by it. This pipe line is located near to furnish the natural gas to the plain

the city of Chickasha, and at a point tiff company for distribution.

in said line approximately 4 miles Guthrie Gaslight, Fuel & Improv. Co. from the city limits of said city there 5. Board of Education, 64 Okla. 157, is a T which may be used for conL.R.A.1918D, 900, P.U.R.1917E, 200, necting the line with a line into the 166 Pac. 128; Muskogee Gas & E. Co.

city. v. State, 81 Okla. 176, 186 Pac. 730;

The Chickasha Gas & Electric Oklahoma Natural Gas Co. v. State Company is a public utility engaged 78 Okla. 5, 188 Pac. 338; Atchison, T. & S. F. R. Co. v. State, 23 Okla.

in the business of manufacturing 217, 21 L.R.A.(N.S.) 908, 100 Pac. 11;

and distributing artificial gas in the Washington ex rel. Oregon R. & Nav. city of Chickasha. In the month of Co. v. Fairchild, 224 U. S. 510, 56 L. ed. October, 1921, it was by said city 863, 32 Sup. Ct. Rep. 535; Union Dry granted a franchise, authorizing it Goods Co. v. Georgia Pub. Serv. Corp. to use its gas-line system for the 248 U. S. 373, 63 L. ed. 310, 9 A.L.R.

purpose of distributing natural gas 1420, P.U.R.1919C, 60, 39 Sup. Ct. Rep.

to the inhabitants of said city. 117; New York ex rel. New York & Q.

Thereupon it constructed a gas pipe Gas Co. v. McCall, 245 U. S. 345, 62

line from the city of Chickasha to a L. ed. 337, P.U.R.1918A, 792, 38 Sup. Ct. Rep. 122; Carnegie Natural Gas Co.

point near said T, in the pipe line of v. Swiger, 72 W. Va. 557, 46 L.R.A. appellant, but this was done without (N.S.) 1073, 79 S. E. 3; Morgantown v. any agreement upon the part of apHope Natural Gas Co. (W. Va.) P.U.R. pellant to furnish gas. In fact, ap1919D, 252.

pellant had, prior thereto, refused to Messrs. Cottingham, Hayes, Green, furnish gas to appellee, and has at & McInnis also for appellees.

all times maintained that it could not Nicholson, J., delivered the opin- and would not furnish appellee with ion of the court:

gas from its said pipe line. Upon The Chickasha Gas & Electric the completion of said pipe line by Company instituted this proceeding appellee, it instituted this proceedby filing with the Corporation Com- ing, which resulted in the order commission its petition praying an order plained of, and of which the appelof such commission requiring the lant seeks a reversal upon two Oklahoma Natural Gas Company to grounds, the first of which is that furnish and supply the Chickasha the Corporation Commission was Gas & Electric Company natural gas without power, authority, and jurisfor distribution by it in the city of diction to make said order requiring Chickasha. After a hearing, the appellant to furnish natural gas to commission made and entered the a public utility and to a community order as prayed for, and from this which it had never theretofore order the Oklahoma Natural Gas served, and which it had never asCompany has appealed.

sumed, undertaken, or professed to The appellant, Oklahoma Natural serve, and which it was unwilling to Gas Company, is a public service cor- undertake to serve. poration engaged in the business of By the provisions of chapter 93, furnishing natural gas to between Sess. Laws 1913, the jurisdiction of thirty-five and forty cities and towns the Corporation Commission was exin the state of Oklahoma. It owns tended so as to confer upon it genthe franchises in about thirty of eral supervision over all public utilthese cities and towns,

and in others, ities, and the appellant comes within including Oklahoma City, El Reno, the term “public utility,” as defined and Muskogee; it furnishes gas for by said act. Indeed, appellant does

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