Banks v. Galbraith

• Decision Date: 09 May 1899
• Parties: BANKS et al. v. GALBRAITH et al.
• Court: Missouri Supreme Court

51 S.W. 105

149 Mo. 529

BANKS et al. v. GALBRAITH et al.

Supreme Court of Missouri, Division No. 2.

May 9, 1899.

WILLS — PLEADING — INCONSISTENT AVERMENTS — JOINDER — MARRIAGE — INDIAN CUSTOMS — RIGHTS OF ISSUE.

1. In an action by pretermitted heirs against the legatee named in their ancestor's will for contribution, an averment that the will was procured by undue influence on the part of the legatee is inconsistent with the claim for contribution.

2. In an action by pretermitted heirs against the legatee named in their ancestor's will for contribution, it is improper to join in the same count with the allegations as to the execution of the will and the failure to provide for plaintiffs an allegation that the will was procured by undue influence on the part of the legatee, as it would be a commingling of two different causes of action in one count.

3. Where an Indian woman leaves the Indian country, and goes to Missouri, with her parents, and is there sold to a white man, and she lives with him in Missouri, the relation created is governed by the laws of Missouri, and not by Indian customs.

4. Where an Indian woman is sold by her parents to a white man in Missouri, in accordance with Indian marriage customs, and lives with him for several years, without a lawful marriage, the issue born to them is incapable of inheriting from the father.

Appeal from circuit court, Holt county; C. A. Anthony, Judge.

Action by Oscar Banks, Willie Banks, Ada Banks, and Bessie Banks, minors, by their next friend, George Nuzum, against Catherine Galbraith, William Banks, Lewis Banks, Walter Banks, Annie Banks, Tracey Banks, Henry Banks, Mathew Banks, and Alice Ruth Banks, to establish plaintiffs' rights as pretermitted heirs of William Banks, Sr., deceased. There was a judgment for defendants, and plaintiffs appeal. Affirmed.

This is an action by plaintiffs to establish their rights as pretermitted heirs of William Banks, Sr., deceased, late of Holt county, Mo. The record discloses substantially these facts: That William Banks, Sr., deceased, lived in Holt county, Mo., from about the year 1840 until the 6th day of April, 1895, when he died testate, having made a will disposing of all his estate to the defendants, without having in any way mentioned the plaintiffs or their father in the will. That in 1840 said William Banks, deceased, settled on the east shore of the Missouri river in Holt county, Mo., and established a trading point for the sale of goods, and operated a ferry across the Missouri river between his trading post and a landing known as "Iowa Point" in Kansas. Tribes of Indians, known as the "Foxes," "Sacs," and "Iowas," occupied a reservation in the then territory of Kansas which included the place of said ferry landing on that side of the river. Banks continued in business at his trading post on the Missouri side, doing a general mercantile business, and trading with both white people and Indians as his customers, operating the ferry and carrying on a farm, and kept store. In 1844, after he had been in business there about four years, he bought a woman, called "Wa-rush-ka-me," of her parents, and paid for her with goods, and maintained illicit relations with her for about three years, during which time she had a child, who is called "Joseph Banks" in the record of the proceedings in this case, and under whom the plaintiffs in this suit claim as heirs at law a portion of the estate of William Banks, deceased, by descent or inheritance. This woman was a member of the Iowa tribe of Indians, and lived with her parents on the Indian reservation in Kansas territory, opposite to where William Banks lived and kept his trading point. After Banks bought this woman, she divided her time between living with the tribe and with Banks, going back and forth. Her parents brought her over, and delivered her to Banks, and received the consideration for her at his place of business in Missouri. After she had visited him occasionally, remaining with him such length of time as suited her inclination, she left him, or he put her away, or sent her home, where she remained until her death. There were other squaws that came across the river and dwelt with Banks and his partner for illicit purposes, and some of the witnesses say no one knew who sired their children. And shortly after Banks sent Wa-rush-ka-me home, or broke his illicit relations with her, he appropriated another Indian woman, called "Jane," who was the mother of William Banks, Jr., one of the defendants, and this woman lived with Banks until she died, about 1854. So far as the present inquiry is...