Tieyah, Julia, Estate of, 11 IBIA 211 (1983)

• Court: Interior Board of Indian Appeals

Appeal from an order denying petition for reopening issued by Administrative Law Judge Sam E. Taylor in Indian Probate No. H-49-65.

Affirmed as modified.

1. Indian Probate: Reopening: Standing to Petition for Reopening

   An adult who participated in the original probate hearing into a deceased Indian's estate lacks standing to petition for reopening.

2. Indian Probate: Wills: Holographic Will

   A holographic will that is not attested by two disinterested witnesses is not valid.

   On December 6, 1982, the Board of Indian Appeals received a notice of appeal from Valoris Marie Stroup (appellant), appearing pro se, from an order denying petition for rehearing in the estate of Julia Tieyah (decedent). The order appealed from was entered by Administrative Law Judge Sam E. Taylor on October 5, 1982. The Board affirms that order as modified by this opinion.

   Background

   Julia Tieyah, an unallotted Comanche Indian, died on November 9, 1964, at the age of 48. A hearing into her estate was held by Examiner of Inheritance Kent R. Blaine on March 11, 1965. In an order determining heirs, issued on April 9, 1965, the examiner found that decedent died intestate and was survived by six sons and three daughters, three of whom were minors. Under the Oklahoma laws of intestate succession, decedent's estate was distributed equally to these nine children, with homestead rights in one 5-acre tract being given to the three minor children until each of them reached majority or the rights were otherwise disposed of by law.

   On September 16, 1982, appellant, through counsel, filed a petition for rehearing, alleging that on April 12, 1963, decedent wrote a holographic will

   IBIA 83-7

   which she gave to appellant. Appellant alleged that she attempted to present this holographic will to the Bureau of Indian Affairs (BIA) after the hearing, but was not permitted to make it part of the record in decedent's estate.

   On October 5, 1982, Administrative Law Judge Sam E. Taylor denied the petition. The Judge did not consider whether the petition met the requirements for reopening under 43 CFR 4.242, but held that the alleged holographic will was inadequate under 43 CFR 4.260 because it was not witnessed by two disinterested persons. Appellant appealed this decision to the Board. No briefs were filed.

   Discussion and Conclusions

   Although termed a petition for rehearing, appellant's petition must be considered under the reopening procedures of 43 CFR 4.242(h) rather than the rehearing...