Smith v. Smith

• Decision Date: 12 November 1909
• Citation: 140 Wis. 599,123 N.W. 146
• Parties: SMITH v. SMITH.
• Court: Wisconsin Supreme Court

140 Wis. 599

123 N.W. 146

SMITH

v.SMITH.

Supreme Court of Wisconsin.

Nov. 12, 1909.

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

Proceedings for the settlement of the estate of Ezekiel Smith, deceased. From an order determining that Taylor Smith was decedent's heir, and as such was entitled to the latter's entire interest in certain lands, subject to the homestead rights of decedent's widow, Hattie C. Smith, she appeals. Affirmed.

Among other references upon 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. W. 251;Menn v. State, 132 Wis. 61, 112 N. W. 38;Baker v. State, 47 Wis. 111, 2 N. W. 110;Goyke v. State (dis. op.) 136 Wis. 557, 117 N. W. 1027, 1126;Hofer v. State, 130 Wis. 576, 110 N. W. 391;Grotjan v. Rice, 124 Wis. 253, 102 N. W. 551;Benedict v. Horner, 13 Wis. 256;Richmond v. State, 19 Wis. 307;Miller v. C. & N. W. Ry. Co., 133 Wis. 183, 113 N. W. 384;Kelley v. Crawford, 112 Wis. 368, 88 N. W. 296.

Among references upon the part of the respondent were: Jones v. Roberts, 84 Wis. 465, 54 N. W. 917;Gillett v. Treganza, 13 Wis. 472.Cady, Strehlow & Jaseph, for appellant.

M. E. Davis, for respondent.

TIMLIN, J.

The county court of Outagamie county granted letters of administration upon the estate of Ezekiel Smith, an Indian, to Hattie C. Smith, his widow, and thereafter it was stipulated, prior to the time for final distribution, that the question whether Taylor Smith was the son and sole heir at law of decedent should be tried before said county court at a time and place stated. We are informed by counsel that the department of the United States government having charge of Indian affairs until recently approved, recognized, and acted upon this mode of ascertaining Indian heirs for the purpose of identifying the person or persons for whom the United States held the title in trust. The county court heard the evidence, and determined that Taylor Smith was the son of decedent, but that Hattie C. Smith was his widow and sole heir. An appeal was taken to the circuit court from this order, and the place of trial changed to Brown county where, after a trial of the question, the circuit court found that Ezekiel Smith, deceased, was an Oneida Indian, an allottee of lands in the Oneida Indian reservation in this state, and held a trust patent from the United States for two quarter quarter sections of such land, and that Taylor Smith was the illegitimate son of said Ezekiel and one Dolly Hill, deceased, but that the said Ezekiel and Dolly never cohabited as husband and wife according to the custom and manner of Indian life, and Ezekiel never admitted in writing that Taylor was his son. From these facts the circuit court concluded that Taylor Smith was the heir at law of Ezekiel Smith, deceased, and as such was entitled to the entire interest of said Ezekiel in and to the lands in question, subject to the dower and homestead rights of Hattie C. Smith, widow of decedent. An order was then made in the form of judgment remitting the cause to the county court of Outagamie county with directions to enter the proper order assigning to Taylor Smith the entire interest of Ezekiel Smith in and to the lands in question, subject to the dower and homestead rights of Hattie C. Smith. Upon appeal to this court from the order last mentioned Hattie C. Smith assigns error: (1) That the court erred in exercising jurisdiction; (2) that the court erred in finding Taylor Smith was the son of Ezekiel; (3) in admitting evidence of declarations of Dolly Hill; (4) in limiting cross-examination; (5) in admitting parol declarations of Ezekiel Smith as to his paternity of Taylor Smith; (6) In the conclusion of law that Taylor Smith is the heir of Ezekiel Smith.

No objection to the jurisdiction of the circuit court appears to have been made in that court, but appellant cites in this court the case of McKay v. Kalyton, 204 U. S. 458, 27 Sup. Ct. 346, 51 L. Ed. 566, in support of the first assignment of error. In that case, however, the action was one to recover possession of or title to the allotted land, or both such possession and title. This is not true of the instant case. Here the parties have by stipulation and mutual consent submitted to the state court the question of whether a certain person was the heir at law of Ezekiel Smith. The order or judgment does not transfer the title to, or disturb the possession of, the land in question. Jones v. Roberts, 84 Wis. 465, 471, 54 N. W. 917;Gillett v. Treganza, 13 Wis. 472; Gary's Probate Law (3d Ed.) §§ 630, 633. And the United States as trustee may recognize, or refuse to recognize, this order as evidence conclusive or prima facie. Act Cong. Feb. 8, 1887, c. 119, 24 Stat. 388, as amended by Act Cong. Feb. 28, 1891, c. 383, 26 Stat. 794, 3 Fed. St. Ann. pp. 493, 494, 496, 501, 502. There was other property of Ezekiel Smith besides the trust lands which authorized...