In re House's Heirs

Decision Date21 May 1907
Citation112 N.W. 27,132 Wis. 212
PartiesIN RE HOUSE'S HEIRS.
CourtWisconsin Supreme Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Brown County; Samuel D. Hastings, Judge.

Proceedings under St. 1898, § 3873b, to determine the heirs of Thomas House, deceased. From the judgment, Thomas House Ninham and another appeal. Affirmed.

Thomas House, Sr., an Oneida Indian, died on the Oneida reservation, in Brown county, November 13, 1894. At the time of his death he held a patent to certain lands which were part of the reservation which had been allotted among the Oneidas. The patent provided as follows: “That the United States of America, in consideration of the premises and in accordance with the provisions of the fifth section of [the act of Congress of the 8th of February, 1887, c. 119, 24 Stat. 388, which provided for the allotment] hereby declares that it does and will hold the land thus allotted [subject to all the restrictions and conditions contained in said fifth section] for the period of twenty-five years, in trust for the sole use and benefit of the said Thomas House, or in case of his decease, for the sole use of his heirs, according to the laws of the state or territory where such land is located, and that at the expiration of said period the United States will convey the same by patent to said Indian, or his heirs, as aforesaid, in fee, discharged of said trust and free of all charge or incumbrance whatsoever: Provided, that the President of the United States may in his discretion, extend the said period.” In 1837 House married according to white man's law one Lydia Archiquette, with whom he lived for about one year. There was no issue as the result of this marriage, and at the end of about a year they voluntarily separated, and Lydia Archiquette thereafter cohabited for a period of about 50 years with another Indian, with whom she raised a large family of children. Lydia Archiquette died before House, but during her life House cohabited with and had children with eight other Indian women. All of these children except two were living at the time of his death. One of these two children left surviving her Thomas House Ninham, and the other left surviving her Simon House and William House. Thomas House Ninham is the legitimate child of his mother. Before the dissolution of the tribal relation by the Oneidas, the deceased adopted Thomas House Ninham in accordance with a well-defined custom or law of adoption among the Oneidas. As such son by adoption he was entitled under the laws and customs of the Oneida Indian tribe to the same rights and privileges as a natural born son. The laws, customs, and rules of the Oneidas and the procedure for their enforcement rested entirely in parol. Permanent marriage of one man to one woman was fully recognized among them and generally observed. There was no law of descent of real property among them.

By a will which has been lost, House attempted to devise the lands involved in this action to one of his children. He referred to him in such will as “my son Aaron House.” By another will, attempting to dispose of these lands, he referred to Thomas House Ninham as his grandson. House left a number of brothers and sisters surviving him. This proceeding is instituted under chapter 166A, St. 1898, for the purpose of determining who are the heirs of Thomas House, Sr. The above facts are taken from the stipulation made by the interested parties before the county court, and on appeal were stipulated before the circuit court as the facts of the case. As conclusions of law, the circuit court found that Aaron House, an illegitimate son of Thomas House, had been legitimated by the will, wherein he was referred to as “my son Aaron House; that Thomas House Ninham, by virtue of his adoption by Thomas House, Sr., was entitled to inherit according to the customs and laws of the Oneida Indians the same as any lawful issue of Thomas House, Sr.; that Thomas House, Sr., had no legal capacity to make a will disposing of the real estate in question; that all of the illegitimate children of Thomas House, Sr., were entitled, under the federal statutes, to inherit and share in the real estate of their father the same as though they were legitimate children; and that the children of a deceased illegitimate child were entitled to the share of their deceased parent. This is an appeal from such judgment establishing who were the heirs of Thomas House, Sr., which was entered in accordance with the conclusions of law of the circuit court.

Cady & Strehlow, for Thomas House Ninham.

C. W. Lomas and P. H. Sheridan, for Aaron House.

John F. Watermolen, for Esther and Henry House.

Kittel & Burke and M. E. Davis, for William House of Canada, Simon House, William House of Oneida, Wis., Dolly House, Thomas House, Jr., and Daniel House.

SIEBECKER, J. (after stating the facts).

This is a proceeding under section 3873b, St. 1898, to determine who are the heirs of Thomas House, deceased. The judgment appealed from declares that all the children named are his heirs for the purpose of taking an interest in the lands allotted to him under an act of Congress approved February 8, 1887 (24 Stat. 388, c. 119), as amended by an act of February 28, 1891 (26 Stat. 794, c. 383). This statute provides for the allotment of lands to Indians, and section 5 provides that patents shall issue to allottees. It declares “that the United States does and will hold the land thus allotted, for the period of twenty-five years, in trust for the sole use and benefit of the Indian to whom such allotment shall have been made, or, in case of his decease, to his heirs according to the laws of the state or territory where such land is located,” and that a conveyance in fee by patent will be made to the allottees at the expiration of such period, discharged of the trust and free from all charges and...

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6 cases
  • Gray v. Mcknight
    • United States
    • Oklahoma Supreme Court
    • June 24, 1919
    ...This identical question has received the consideration of the Supreme Court of Wisconsin in a case entitled In re House''''s Heirs, 132 Wis. 212, 112 N.W. 27, and also in the case of Smith v. Smith, 140 Wis. 599, 123 N.W. 146, wherein the court held that an illegitimate child of a white fat......
  • Gray v. McKnight
    • United States
    • Oklahoma Supreme Court
    • June 24, 1919
    ... ... 794, c. 383), and at the ... expiration of said period the title was to be conveyed in fee ... simple to the allottee, or his heirs, free from all ... incumbrances. The said John Nestell died in August, 1902, ... prior to the issuance of final patent, but subsequent to the ... ...
  • Smith v. Smith
    • United States
    • Wisconsin Supreme Court
    • November 12, 1909
    ...the part of the appellant were the following: Ott v. Boring (Wis.) 121 N. W. 126;Busse v. State, 129 Wis. 171;108 N. W. 64;Heirs of House, 132 Wis. 212, 112 N. W. 27; section 2274, St. 1898; Schiefelbein v. Fidelity, etc., Co. (Wis.) 120 N. W. 398;Sufferling v. Heyl & Patterson (Wis.) 121 N......
  • Okla. Land Co. v. Thomas
    • United States
    • Oklahoma Supreme Court
    • August 20, 1912
    ...15 Minn. 369 (Gil. 302); People ex rel. La Forte v. Rubin (Sup.) 98 N.Y.S. 787; Jones v. Laney et al., 2 Tex. 342; In re Heirs of House, 132 Wis. 212, 112 N.W. 27; Kansas Indians, 5 Wall. 737, 18 L. Ed. 667; Pourier et al. v. McKinzie et al. (C. C.) 147 F. 287. Will this rule, however, be e......
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