Armstrong v. Letty

• Decision Date: 14 March 1922
• Docket Number: Case Number: 9974
• Parties: ARMSTRONG et al. v. LETTY et al.
• Court: Oklahoma Supreme Court

1922 OK 82

209 P. 168

85 Okla. 205

ARMSTRONG et al. v. LETTY et al.

Case Number: 9974

Supreme Court of Oklahoma

Decided: March 14, 1922

Syllabus

¶0 1. Indians--Wills--Execution--Attestation.

The approval and acknowledgment of the will of a full-blood Indian required by act of April 26, 1906, 34 Stat. 137, sec. 23, as amended by the act of Congress of May 27, 1908, 35 Stat. 312, sec. 8, is not an element of the execution and attestation contemplated by the statute of Oklahoma, and is not within the purview of the jurisdiction of the county court in admitting a will to probate.

2. Same--Alienation of Restricted Land by Will.

The approval and acknowledgment of the will of a full-blood Indian required by the act of Congress is a requisite to the validity of the devise of restricted lands, and is not an element of due execution and attestation of the will of such Indian.

3. Wills--Probate--Issue.

In a proceeding to probate a will under Rev. Laws 1910, secs. 6210, 6211, the only issue triable is the factum of the will, or the question of devisavit vel non. Letts v. Letts, 73 Okla. , 176 P. 234.

4. Same--Issues Determined on Admission to Probate.

The decree admitting a will to probate determines that the will is in form and terms sufficient to pass realty, but does not determine title actually passed.

5. Same--Judgment--Probate of Will of Full-Blood Indian--Effect.

The judgment of the county court probating a will is conclusive only as to the matters within its jurisdiction on such hearing. A county court has no jurisdiction upon such hearing to construe the validity of any devise thereunder or to determine the effect of the will as a conveyance of real estate. A will of a full-blood Indian may be admitted to probate in the county court, yet such probate is not conclusive upon the right of such Indian to devise real estate, and the heir, upon ejectment brought to recover the land attempted to be devised, may call in question the legal effect of the will as a muniment of title, and show that it was ineffectual to pass the estate because no power to make such will had been acquired by the testatrix as prescribed by law.

6. Indians--Alienation of Restricted Lands by Will--Judgment.

The judgment of the county court admitting to probate the will of a full-blood Indian, which disinherits the father of such Indian as to the allotment of the decedent, and which has not been acknowledged and approved as required by act of the Congress, is not a bar to the action in the district court by such parent for possession of the inherited lands.

7. Same--Statute--Construction--Estoppel.

A will which is void as a conveyance of restricted Indian lands because it fails to comply with the requirements of the acts of the Congress providing the manner by which such will must be executed cannot be given validity by the Judgment of the county court admitting such will to probate, and the decree of the probate court admitting such will to probate is not available as an estoppel against the lawful heir of the decedent in an action for possession of the lands.

Error from District Court, Pontotoc County; J. W. Bolen, Judge.

Action by John Letty against George W. Armstrong, L. W. Clapp, and others in ejectment and to set aside will and other instruments affecting title. Judgment for plaintiff, and the defendants named bring error. On rehearing, affirmed.

Pitchford, V. C. J., and Kane, J., dissenting.

Stanard & Ennis, for plaintiffs in error.

Reuben M. Roddie, Hatchett & Semple, and J. B. Dudley, for defendants in error.

KENNAMER, J.

¶1 This action was commenced by the defendant in error John Letty, as plaintiff, against the plaintiffs in error and the other defendants in error, as defendants, for the purpose of recovering possession of a certain tract of land situated in Pontotoc county and for canceling and setting aside a certain will and other instruments in writing affecting the title to said real estate. Upon trial to a jury there was a verdict in favor of the plaintiff, upon which judgment was duly entered, to reverse which this proceeding in error was commenced. There is very little, if any, conflict in the evidence on any material point. It appears that the land involved constituted the homestead and surplus allotment of Carry Letty, deceased, a full-blood Chickasaw Indian; that during her last illness the allottee made a will devising the land to Calvin Parnacher, her stepfather, with whom she lived from early childhood, which will was duly admitted to probate by the county court of Pontotoc county; that almost two years after the probate of the will this action was commenced in the district court of Pontotoc county by the plaintiff, who alleged that he was the father of the testator and that the will was void under the act of Congress of April 26, 1906, 34 Stat. 137, section 23, as amended by the act of Congress of May 27, 1908, 35 Stat. 312, sec. 8, because it was not acknowledged before and approved by the officers designated by the acts of Congress and attempted to disinherit the plaintiff, the paternal parent of the full-blood devisor. The section of the federal statute referred to reads as follows:

"Every person, of lawful age and sound mind, may by last will and testament, devise and bequeath all of his estate, real and personal, and all interest therein; Provided, that no will of a full-blood Indian devising real estate, shall be valid if such last will and testament disinherits the parent, wife, spouse or children of such full-blood Indian, unless acknowledged before and approved by a judge of the United States Court for the Indian Territory or a United States Commissioner, or a judge of a county court of the state of Oklahoma."

¶2 On the other hand, it is contended that:

(1) This action, being an action in ejectment, is a collateral attack upon the judgment of the county court admitting the will to probate and cannot be maintained. (2) The county court of Pontotoc county in the hearing upon the application for the probate of the will of Carry Letty in the exercise of its jurisdiction, lawfully conferred, had to determine the question of due execution and attestation of the will, which involved the question of whether it was acknowledged as required by the act of Congress, and that court's judgment admitting the will to probate, when not appealed from, is conclusive in a collateral attack. (3) Under our Constitution and laws original jurisdiction to determine the validity or invalidity of the will is exclusively vested in the county court (as a probate court), and a court of equity has no jurisdiction to vacate, set aside, or annul, on any ground, the judgment of the county court on that question."

¶3 Two question are involved in this appeal: First, does the action of the county court in probating the will of a full-blood Indian involve a determination of the question of whether the will has been acknowledged in the manner required by the act of Congress? Second, if the probating of the will requires a determination of this question, can the judgment of the county court probating a will, which has not been acknowledged as required by the act of Congress, operate to disinherit the heirs who are protected by said act? We must answer both questions in the negative. This court has repeatedly held that the sole question involved when a will is offered to the county court for probate is the factum of the will. That is, has the will been executed and attested in the manner and form required by the statutes, and was the testator competent to make a will at the time he made it, and was he free from the disabilities which operate under our statute to defeat the will? Letts v. Letts, 73 Okla. 313, 176 P. 234; 28 R. C. L. 379; 40 Cyc. 1373; Taylor v. Hilton, 23 Okla. 354, 100 P. 537; Brock v. Keifer, 59 Okla. 5, 157 P. 88.

¶4 In the case of Brock v. Keifer, supra, Collier, C., delivering the opinion of the court, in the third paragraph of the syllabus, held:

"In a proceeding to probate a will, the court cannot construe or interpret the will or distinguish between valid and void dispositions. If the will be legally executed and proved, and not successfully attacked for want of testamentary capacity, undue influence, fraud, or duress, it must be admitted to probate."

¶5 In the case of Letts v. Letts et al., supra, this court, in the fifth paragraph of the syllabus, held:

"In a proceeding to probate a will under Rev. Laws 1910, sections 6210, 6211, the only issue triable is the factum of the will, or the question of devisavit vel non."

¶6 The decree and judgment of the county court in probate admitting a will to probate does not involve in the least degree a construction of a will as to its legal effect; therefore, in an action by any person interested in the estate of the deceased for possession of lands affected by the will no question of collateral attack or any other kind of attack on the judgment of the court admitting the will to probate can be drawn in issue. Quite a different question might arise had the probate court entered a decree of distribution of the estate of the deceased or testatrix upon proper notice to all interested parties, and judgment or decree of distribution necessarily would involve a construction of the will of the testatrix in order to determine the distributive shares of the interested parties, just as it would require of the probate court a construction and application of the laws of descent and distribution where the deceased died intestate, but in the absence of a decree of distribution, the mere admission of a will to probate is not binding upon anyone as to the proper construction of the will, for the obvious reason that until such a decree of distribution has been entered there has been no construction of the will.

¶7 The Supreme Court of California in Re Trescony's Estate, 51 P. 951, held:

"The decree of distribution was a judicial construction of the will of the decedent, and a determination bY the court

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