Merrell v. United States

• Decision Date: 31 January 1944
• Docket Number: No. 2785.,2785.
• Citation: 140 F.2d 602
• Parties: MERRELL et al. v. UNITED STATES et al.
• Court: U.S. Court of Appeals — Tenth Circuit

140 F.2d 602 (1944)

MERRELL et al. v. UNITED STATES et al.

No. 2785.

Circuit Court of Appeals, Tenth Circuit.

January 31, 1944.

Alfred Stevenson, of Holdenville, Okl. (John Rogers, of Tulsa, Okl., W. T. Anglin and O. S. Huser, both of Holdenville, Okl., and J. Hugh Nolen, of Okemah, Okl., on the brief), for appellants.

John C. Harrington, of Washington, D.C. (Norman M. Littell, of Washington, D.C., Whit Y. Mauzy and Joe W. Howard, both of Tulsa, Okl., and Norman MacDonald of Washington, D.C., on the brief), for appellees.

M. S. Robertson, of Muskogee, Okl., for Andy Hulwa, heir.

Before PHILLIPS, BRATTON, and MURRAH, Circuit Judges.

MURRAH, Circuit Judge.

The ultimate question presented by this appeal is whether the Federal District Court acquired jurisdiction to administer the estate of a restricted Indian, member of the Five Civilized Tribes, upon removal of the administrative proceedings from the County Court of Tulsa County, Oklahoma, under the provisions of Section 3 of the Act of April 12, 1926, 44 Stat. 239, 240.¹ Preliminary thereto is the standing or authority of appellants to raise the question, and the answer depends on whether the appointment of appellants as administrators of the estate of the restricted Indian by the County Court of Okfuskee County, Oklahoma, is void upon its face and subject to collateral attack. The trial court held the Okfuskee County appointment void on its face, and sustained Federal jurisdiction to administer the estate of the restricted Indian upon removal of the proceedings from the Tulsa County Court. The Okfuskee County administrators have appealed.

On May 26, 1942, Peter Micco, a full blood restricted Indian, died intestate in Okfuskee County, Oklahoma. He was seized of both real and personal property having an aggregate value of more than $400,000, most of which was restricted funds in the custody of the Secretary of the Interior. Decedent was survived by no wife, child, or parent, and left as his sole and only heirs the following next of kin: Haney Micco Larney, incompetent, sister, whose guardian was Perry Chisholm; Katie May Clark and Juanita Clark, nieces, minors, whose guardian was also Perry Chisholm; Andy Hulwa, sometimes known as Andy High, nephew, competent; and Sallie Little, Serena Spencer, and Norman Ripley, nieces, minors, whose guardian was E. F. O'Neal.

On the date of decedent's death (May 26, 1942), petitions for letters of administration were filed in both the county courts of Tulsa and Okfuskee Counties. The petition in Tulsa County was filed by M. S. Robertson, Probate Attorney for the Superintendent of the Five Civilized Tribes. It alleged the death of Peter Micco at Okemah, Okfuskee County, Oklahoma, and his residence in Tulsa County; the character and value of his property; his intestacy, his heirs at law, and nominated and requested the appointment of N. B. Day, former guardian of the decedent (see Micco v. Huser, 185 Okl. 394, 91 P. 2d 1069), as administrator of the Estate. The matter was set for hearing on June 6, 1942, and notice was ordered and given, all as provided by the applicable Oklahoma statutes. 58 O.S.A. § 128. Notice was also given to the Superintendent of the Five Civilized Tribes in accordance with the Federal law. Sec. 3, Act of April 12, 1926. Two days later, and on May 28, 1942, Perry Chisholm, as guardian for Haney Micco Larney, Katie May Clark, and Juanita Clark, heirs at law and next of kin, joined in the petition of the United States Probate Attorney, and prayed that letters of administration be issued to N. B. Day in accordance with the original petition. On the following June 4th, the United States Attorney, acting in pursuance of the notice to the Superintendent of the Five Civilized Tribes, removed the proceedings from the Tulsa County Court to the United States District Court for the Northern District of Oklahoma in accordance with Section 3 of the Act of April 12, 1926.

The petitioner for letters of administration in the Okfuskee County Court, filed May 26, 1942, was Howard Cummings, who was neither kin nor creditor of the decedent. The petition alleged the decedent's death in Okfuskee County and his residence there. It further alleged the character and value of the estate, the intestacy of decedents, and heirs at law; that although the petitioner was not related to decedent, the heirs were full blood Indians and not eligible for appointment; that the petitioner was interested in the administration of the estate, and requested that L. F. Merrell be appointed administrator. The petition prayed that the matter be set for hearing and notice thereof given according to law. The Okfuskee County Court set the matter for hearing on June 8, 1942, and ordered statutory notices of the hearing given to the heirs at law. On the following June 3rd, Cummings filed an amendment to his original petition for letters of administration, in which it was alleged that all persons related to Peter Micco who, under the statute of the State of Oklahoma, had prior rights of appointment as administrator, were full blood Indians adjudged incompetent, and hence ineligible to serve as administrator of the Estate. Specifically, it was alleged that Andy Hulwa, one of the heirs, was a full blood Indian of the half blood relation, and unversed in the affairs of business, therefore incompetent to serve as administrator of the Estate. It was then alleged that by reason thereof, no person with preferential rights to the appointment of administrator under the laws of Oklahoma was eligible for the appointment, and consequently "no notice to any such persons is necessary for the appointment of an administrator"; that there was "immediate necessity for the appointment of an administrator for the reason that other persons whose true intent cannot be known are attempting to usurp the jurisdiction of this court * * * by seeking the appointment of an administrator in other counties of the state, all of which is highly detrimental to the Estate of Peter Micco, and not to the best interest of any of the heirs." The petition prayed for the appointment of an administrator, and the issuance of letters of administration instanter without further notice.

On the next day, June 4th, M. S. Robertson, United States Probate Attorney, and Perry Chisholm, as guardian of his next of kin wards, filed a motion to dismiss the Okfuskee County administration proceedings on the ground that the court was without jurisdiction to hear and determine the petition because the decedent was at the time of his death a legal resident of Tulsa County, as evidenced by an order of the County Court of that County dated January 16, 1942, which directed the guardian of Peter Micco to establish a suitable place of abode for Micco within Tulsa County, where the said Micco "shall reside," a copy of which order was attached to the motion and made a part thereof. The second ground of the motion to dismiss was that neither the petitioner for the letters of administration, nor his nominee for administrator, were related to the decedent or creditors of the Estate, and had no legal right to nominate or be appointed by the Okfuskee County Court.

On the same date, June 4th, without notice of any kind to any one, the County Court of Okfuskee County proceeded to hear the original petition of Howard Cummings for letters of administration as amended, and to appoint the administrators who are the appellants here. According to the "Order Appointing Administrators," Cummings and his attorney appeared at the hearing, and moved to amend the petition to request that E. F. O'Neal, guardian of Sallie Little, Serena Spencer and Norman Ripley, and Perry Chisholm, guardian of Haney Micco Larney, Katie May Clark and Juanita Clark, be appointed co-administrators with L. F. Merrell. Leave was granted to so amend, whereupon the petitioner, through his attorneys, announced to the court that the persons whom the petitioner sought to have appointed as co-administrators of the Estate, were persons having a prior right to the said appointment. The court "being satisfied" there were no other persons having a prior right of appointment, held that further notice was unnecessary, and ordered the petition as amended heard instanter. The order of May 26th, setting the original petition for hearing on June 8, 1942, was vacated and set aside, and the court proceeded to hear testimony pursuant to which it found that Peter Micco died intestate on May 26, 1942, in Okfuskee County, Oklahoma, while a bona fide resident of that County and State; that his heirs and next of kin are: Haney Micco Larney, adult incompetent sister, Sallie Little, Serena Spencer, Norman Ripley, Katie May Clark, and Juanita Clark, minors, and Andy Hulwa, a nephew of the half blood. The court found that Andy Hulwa did not have equal right to the appointment of administrator, and that E. F. O'Neal and Perry Chisholm, as guardians of their wards, were persons having a prior right to act as administrators of the Estate; that by reason thereof, no formal notice was necessary. The court then appointed O'Neal, Chisholm, and Merrell administrators, and fixed their bonds. Merrell and O'Neal qualified; Chisholm not only failed to qualify, but contested the jurisdiction of the court over the Estate.

After removal of the administrative proceedings from the Tulsa County Court to the Federal Court, and on June 12, 1942, Andy Hulwa entered his appearance in the proceedings in the United States District Court, waived service of notice, and authorized the court to hear the matter of the appointment of the administrator at any convenient time. On the same date, E. F. O'Neal, as guardian of his next of kin wards, joined in the petition for the appointment of N. B. Day as administrator, waived further notice, and asked that the cause be heard at any convenient time. Thereafter and on June 19, 1942, the matter came on for hearing on the petition of Robertson, United States...