Janis, Ethel Edith Wood Ring, Estate of, 15 IBIA 216 (1987)

Appeal from an order denying rehearing issued by Administrative Law Judge Elmer T. Nitzschke in Indian Probate No. IP TC-234S 85-87.

Dismissed.

1. Indian Probate: Aggrieved Parties--Indian Probate: Appeal: Standing to Appeal

   In order to have standing to appeal a decision entered in an Indian probate case, an individual must be an actual or presumptive heir of the decedent, a beneficiary under a will executed by the decedent, or a person asserting a claim against the decedent's estate.

2. Indians: Generally--Intervention

   An intervenor or joined party cannot maintain a case when the original case or parties are dismissed unless he/she is independently properly before the Board of Indian Appeals.

3. Indian Probate: Appeals: Timely Filing

   Under 43 CFR 4.320(a), a notice of appeal from a denial of rehearing in an Indian probate proceeding must be filed within 60 days from the date of the decision being appealed.

   On December 15, 1986, the Board of Indian Appeals (Board) received separate notices of appeal from Gordon L. Bettelyoun (Gordon) and William Hawkman Bettelyoun (William) (also appellants). Appellants sought review of an order denying rehearing entered on October 21, 1986, in the estate of their grandmother, Ethel Edith Wood Ring Janis (decedent), by Administrative Law Judge Elmer T. Nitzschke. Denial of rehearing let stand an August 5, 1986 order approving decedent's last will and testament. For the reasons discussed below, the Board finds this appeal must be dismissed.

   IBIA 87-15

   Background

   Decedent, Allottee 5950 of the Rosebud Sioux Reservation in South Dakota, was born December 23, 1903, and died June 17, 1983. Hearings to probate her Indian trust or restricted estate were held on October 24, 1985, before Administrative Law Judge Frederick W. Lambrecht and on May 21, 1986, before Judge Nitzschke. The hearing before Judge Lambrecht primarily concerned the establishment of decedent's family history. A continuance was granted when it became apparent that a document dated September 18, 1978, and purported to be decedent's last will and testament, would be contested. The will left decedent's estate to one of her daughters, Vera (Bissonette) Herman, and a grandson, specifically excluding other family members. The continuance resulted in the second hearing before Judge Nitzschke. That hearing was specifically addressed to the contest to decedent's will.

   The will contest was based on the allegation of some family members that decedent had changed her mind about the testamentary scheme established in the 1978 will. However, no later document either revoking the 1978 will or constituting a new will was introduced.

   In his August 5, 1986 order, Judge Nitzschke approved decedent's will, but found that Vera Herman had predeceased her mother. Accordingly, he applied the Department's anti-lapse regulation, 43 CFR 4.261, 1/ to find that the devise to Vera Herman passed to her sole lineal descendant, Janis Steenberg (appellee). Appellee was one of the family members listed in decedent's will as not to take under the will.

   Appellants sought review of this order. Judge Nitzschke treated their appeal as a petition for rehearing. By order dated October 21, 1986, he denied rehearing on the grounds that appellants lacked standing because they were not heirs of the decedent or beneficiaries under her will. 2/

   Appellants filed separate notices of appeal from this order. Both notices were received on December 15, 1986. Appellants also filed separate briefs.

   On April 7, 1987, while briefing was continuing, the Board received a motion to join as appellants and statements from Geraldine Cherry Janis Bettelyoun (Geraldine) and Dorrine Janis Gardner (Dorrine). Geraldine is the mother of Gordon and William; Geraldine and Dorrine are daughters of __________________________ 1/ Section 4.261 states:

   "When an Indian testator devises or bequeaths trust property to any of his lineal descendants, mother or father, brothers or sisters, either of the whole or...