Robbs' Estate, In re

• Decision Date: 12 December 1972
• Docket Number: No. 44044,44044
• Citation: 504 P.2d 1228
• Parties: In the Matter of the ESTATE of Lucinda ROBBS, a/k/a Babe Robbs, a/k/a Salena C. Robbs, Deceased. Hotona SLACK et al., Appellees, v. Charles F. HOWARD, Administrator of the Estate of C. P. Howard, Deceased, et al., Appellants.
• Court: Oklahoma Supreme Court

Page 1228

504 P.2d 1228

In the Matter of the ESTATE of Lucinda ROBBS, a/k/a Babe

Robbs, a/k/a Salena C. Robbs, Deceased. Hotona

SLACK et al., Appellees, v. Charles F. HOWARD, Administrator of the Estate of C. P.

Howard, Deceased, et al., Appellants.

No. 44044.

Supreme Court of Oklahoma.

Dec. 12, 1972.

Rehearing Denied Jan. 8, 1973.

Syllabus by the Court

Our half blood inheritance statute, 84 O.S.1971, § 222, is applicable only when the surviving half blood kindred and whole blood kindred are related to decedent in the same degree, and it does not operate to disinherit nearer half blood kindred not of the blood of the ancestor in favor of more remote kindred of the whole blood who are of the blood of the ancestor. The contrary holding in Thompson v. Smith, 102 Okl. 150, 227 P. 77, is hereby specifically overruled insofar as the same is in conflict herewith.

Certiorari to the Court of Appeals, Division I.

Application for certiorari to the Court of Appeals, Div. No. 1, for the review of a decision of that court affirming a judgment of the District Court of Muskogee County, Hon. C. F. Bliss, Jr., Judge, holding under 84 O.S.1961, now 1971, § 222, that nearer half blood kindred of an intestate decedent who are not of the blood of decedent's ancestor are excluded from inheriting the ancestral estate, in favor of more remote whole blood kindred who are of the blood of the ancestor. Certiorari granted; opinion of Court of Appeals vacated; judgment of Trial Court reversed and cause remanded.

Alpheus Varner, Poteau, for appellees.

Kay Wilson, Jr., Muskogee, for appellants.

WILLIAMS, Justice.

This appeal presents a question of statutory interpretation in a factual setting never considered by this Court before. It involves the general scheme of descent and distribution found in our statutes of intestate succession.

The question is whether the exception following the word 'unless' in our half blood statute, 84 O.S.1971, § 222, is applicable only when the half blood kindred and whole blood kindred are related to decedent in the same degree, or whether it operates to disinherit nearer half blood kindred Not of the blood of the ancestor in favor of more remote whole blood kindred of the decedent who Are of the blood of the ancestor.

§ 222 provides as follows:

'Kindred of the half-blood inherit equally with those of the whole blood In the same degree, unless the inheritance come to the intestate by descent, devise or gift of some one of his ancestors, in which case all those who are not of the blood of such ancestors must be excluded from such inheritance.' (Emphasis added).

The decedent in this case was Lucinda Robbs. She died unmarried and without issue, father, mother, or full brothers or sisters. Her surviving kindred are a maternal half brother and the children of some maternal half brothers and maternal half sisters, on the one hand, and some paternal cousins on the other. The contest is between these two sets of rival claimants. A substantial portion of her estate, and the only portion involved in this appeal, consisted of real estate devised to her by a paternal uncle. It is agreed that an uncle is within the broad definition accorded the word 'ancestors' in our half blood statute.

The county court decreed that the paternal ancestral estate descended to the half blood maternal kindred of decedent (her kindred of the 2nd and 3rd degrees; see 84 O.S.1971, § 221); the district court decreed that it descended to the paternal cousins (decedent's kindred of the 4th degree).

It is said that the rule of the common law excluding the half blood from an inheritance has never met with favor in the United States, and that Even in the absence of a statute such as our § 222, 'the half blood is usually held to take equally with the whole blood, such rule being based either on the intent of the legislature as gathered from the other sections of the statutes of descent, or on the theory that the common-law rule was founded on the feudal law and is not applicable to our institutions'. 141 A.L.R. 977. This is the case in Oklahoma. In 1924, in Thompson v. Smith, 102 Okl. 150, 227 P. 77, this Court said:

'* * * where the statute refers to brothers and sisters of the decedent, the same is held to include one-half brothers and one-half sisters in determining the right to inherit. * * * Therefore it is plain that, instead of (§ 222) being an enabling statute, it must be construed to be a qualification of the general rule in the preceding section (now 84 O.S.1971, § 213).'

Many of the other states of this country have half blood statutes that are identical, or almost identical, with our § 222. Under the varying constructions of these statutes, two divergent lines of authority have emerged on the question of whether the statutes operate to disinherit the decedent's nearer kindred of the half blood not of the blood of the ancestor in favor of decedent's more remote kindred of the whole blood who are of the blood of the ancestor. See annotation at 141 A.L.R. 977. Although in that annotation, published in 1942, Oklahoma is listed among those states in which the decedent's nearer half blood kindred not of the blood are excluded in favor of decedent's more remote kindred of the whole blood who are of the blood of the ancestor (page 998), it is perhaps significant that the annotator deemed it advisable to discuss the Oklahoma decisions in a separate category (page 1006).

The reason may lie in the fact that in this state, the construction of our half blood statute has often come in cases also involving another vexing question: whether Indian allotments should be considered ancestral estates (estate of inheritance) or non-ancestral in origin. In 1913, in Pigeon et al. v. Buck et al., 38 Okl. 101, 131 P. 1083; 237 U.S. 386, 35 S.Ct. 608, 59 L.Ed. 1007, this Court took the position that Indian allotments were ancestral estates within the meaning of certain sections of Mansfield's Digest of the Laws of Arkansas (not the half blood section of that digest). In Pigeon, the Indian intestate died in 1905, and the devolution of her estate was controlled by the provisions of Arkansas law found in Chapter 49 of Mansfield's Digest, which had been placed in force in Indian Territory by act of Congress. No 'half blood' question was presented in Pigeon.

Three years later, in Hill v. Hill, 58 Okl. 707, 160 P. 1116, this Court for the first time considered § 222. The rival claimants in that case were brothers and sisters of the whole blood, on the one hand, and a half brother and a half sister, on the other. The land concerned was an Indian allotment, the allottee having died in 1913. The controlling rule of descent was the one now codified as 84 O.S.1971, § 213 Third, modified, however, by § 222 if the Indian allotment were considered to be an ancestral estate. The majority, considering that question no longer open because of the holding in Pigeon, which in the meantime had been affirmed in the United States Supreme Court, held that the allotment was an ancestral estate within the meaning of § 222 and descended to the decedent's brothers and sisters of the whole blood to the exclusion of decedent's half brother and half sister, who were not of the blood of the decedent's mother (his father being 'a noncitizen of the Choctaw Nation'). In a lengthy dissent, Justice Sharp pointed out, among other things, that different statutes were involved in Pigeon and Hill, and that the Arkansas statutes in Pigeon which justified resort to the fiction that Indian allotments are estates of inheritance had no counterpart in Oklahoma. In 1930, in the face of intervening conflicting decisions on the question, this Court abandoned the doctrine that Indian allotments are ancestral estates and specifically overruled the Hill holding on that question. See In re Yahola's Estate, 142 Okl. 79, 285 P. 946.

In the meantime, however, in Thompson v. Smith, 102 Okl. 150, 227 P. 77, which also involved an Indian allotment, this Court had examined the two divergent lines of authority on the interpretation of half blood statutes in the jurisdictions of this country.

For convenience we will refer to the conflicting conclusions reached as the California rule and the Arkansas rule. In Thompson, this Court quite specifically rejected the California rule and adopted the Arkansas rule, holding with regard to § 222 that 'said section qualifies the general rule as to inheritance by those of the half blood found in (84 O.S.1971, § 213 Second) and the half blood is excluded from an inheritance that came to the deceased by descent, devise or gift of some one of his ancestors, and that the rule in Kelly v. McGuire, 15 Ark. (555) 586, be followed.' In Kelly, the Arkansas Court had held, in 1854, that under the Arkansas version of the half blood statute, 'where the inheritance is in any one line, if there goes in succession * * * precisely as if the other line was extinct, and precisely as the inheritance of a bastard would take a course in his mother's line, he having no father's line at all.' Under this construction of the half blood statute, decedent's half blood kindred not of the blood of the ancestor were totally disinherited in favor of decedent's kindred of the whole blood who were of the blood of the ancestor, regardless of whether they were related to decedent 'in the same degree.'

The California rule which was examined and rejected by this Court in Thompson was apparently first stated by the California court in In re Smith's Estate, 131 Cal 433, 63 P. 729. In that case, in 1901, the court held in effect that the California half blood statute, identical with our § 222, was applicable only in situations where the half blood kindred and whole blood kindred were related to decedent 'in the same degree', in which case the half blood kindred not of the blood of the ancestor would be excluded from inheriting the ancestral property. Under that construction, the half blood statute would...