Fishbird, George, Estate of, 36 IBIA 269 (2001)

• Court: Interior Board of Indian Appeals

Vacating Decision and Order under Docket No. IBIA 01-157, and Referring Entire Case to Administrative Law Judge Robert Holt Docket Nos. IBIA 01-157 IBIA 01-161 August 16, 2001

The Board of Indian Appeals (Board) has received two notices of appeal from a May 31, 2001, order granting petition for rehearing issued in the estate of Decedent George Fishbird by Administrative Law Judge James H. Heffernan. IP BI 135A 90. Rehearing was sought in regard to Judge Heffernan's January 31, 2001, decision determining Decedent's heirs and approving his will. For the reasons discussed below, the Board vacates both the January 31, 2001, decision and the May 31, 2001, order and refers this entire estate to Administrative Law Judge Robert Holt for hearing and decision.

In his January 31, 2001, decision, Judge Heffernan found that Decedent died August 15, 1989; that a hearing to probate Decedent's trust and restricted estate was held on June 1, 1990; that Decedent did not have any children; that his closest relatives were five second cousins; and that Decedent executed a will on December 14, 1979, under which he devised his entire estate to William Stump, whom Decedent identified as a friend. 1/ Judge Heffernan noted that the will was contested on grounds of lack of testamentary capacity and undue influence. In support of his conclusion that the will should be approved, the Judge did not cite any testimony presented

1/ The Judge's decision states that the will devised Decedent's estate to the "Estate of William Stump." The Board does not know from the materials before it whether Decedent actually devised his estate to another estate, or whether William Stump died after Decedent but before the issuance of the Judge's order.

Appellant Geneva TopSky Stump states that she is the widow of William Stump, Sr. Judge Heffernan's order does not indicate whether the devisee under Decedent's will was William Stump Sr. or Jr.

in this estate, but instead relied upon an account of Decedent's behavior presented in a legal memorandum submitted by counsel for one of the parties in this matter and proceedings held several years after the execution of the will before a county district court.

Judge Heffernan received three petitions for rehearing of his January 31, 2001, decision. One petition was filed by four of the five individuals determined to be Decedent's heirs at law. In regard to that petition, Judge Heffernan stated:

The petition appears to show merit if only because procedural due process requires a supplemental hearing. The record reflects a supplemental hearing scheduled for August 30, 1990 was continued without date, and never rescheduled. Consequently, the petitioners never had the opportunity to present testimony or cross-examine witnesses in support of a will contest.

Judge Heffernan transferred the petition for rehearing to Judge Holt, who now has geographical jurisdiction over this probate.

Judge Heffernan then proceeded to discuss the petitions filed by Geneva TopSky Stump and Sylvia Stops. He found that both petitions were untimely. He further denied rehearing on the grounds that neither Stump nor Stops had standing to petition for rehearing.

Stump and Stops appealed to the Board. Stops filed her notice of appeal with the Superintendent, Crow Agency, Bureau of Indian Affairs (Superintendent). The Superintendent transferred the notice of appeal to Judge Holt's office, which in turn transferred it to the Board. The Superintendent received the notice of appeal on July 31, 2001; Judge Holt's office received it on August 6, 2001; and the Board received it on August 13, 2001. This appeal was assigned Docket No. IBIA 01-161.

Stops filed her notice of appeal with the Superintendent despite the clear instructions in Judge Heffernan's May 31, 2001, order informing her that any notice of appeal was to be filed with the Board. Because Stops filed her appeal in an office other than the one in which she was instructed to file it, her notice of appeal was not timely when the Board received it. The Board has consistently held that an appellant fails to file a timely notice of appeal when that person is given proper appeal...