Barnett v. Equitable Trust Co.
| Citation | 21 F.2d 325 |
| Parties | BARNETT v. EQUITABLE TRUST CO. OF NEW YORK et al. |
| Decision Date | 09 August 1927 |
| Court | U.S. District Court — Southern District of New York |
Patterson, Eagle, Greenough & Day, of New York City (Carroll G. Walter, of New York City, and Rayburn L. Foster, Cochran & Ellison and McCrory & Monk, all of Okmulgee, Okl., of counsel), for plaintiff.
Murray, Aldrich & Roberts, of New York City (A. M. Stackhouse, of New York City, of counsel), for respondent Equitable Trust Co. of New York.
Charles S. Fettretch, of New York City , for respondent American Baptist Home Mission Soc.
Emory R. Buckner, U. S. Atty., of New York City , for intervener.
For the purposes of this case, it may be assumed that the Secretary of the Interior had power and authority to remove the restrictions which the Congress of the United States has placed upon the property of Jackson Barnett, as a full-blood Indian of the Creek tribe, and to approve such gifts and donations of his property as he in fact made. But such approval, however honest and disinterested it may have been, cannot give validity to a gift or donation which the apparent donor did not make, and which, by reason of mental incompetency, he was incapable of making. Jennings v. Wood (C. C. A.) 192 F. 507; Kendall v. Ewert, 259 U. S. 139, 42 S. Ct. 444, 66 L. Ed. 862.
The record now before the court is of great volume, and it would be a laborious task to summarize all the details of the amazing set of facts that seem to me to compel a conclusion that the instruments under attack should be set aside. By reason of this, my recital of the matters by which I am convinced of Barnett's mental incompetency will be as brief as they can understandingly be stated.
Here is an illiterate Indian, now in the neighborhood of 77 or 78 years of age, who, until he became wealthy, was allowed to shift for himself, and to eke out an existence as best he could. This he did, in a more or less haphazard way, until oil was found upon his allotment of land in Oklahoma. From that time until the present, he has been the shuttledore in a game of battlecock, in which the stakes were high. Solicited and importuned for donations, to which he readily affixed his thumb print for most any one who asked it; kidnapped and married by an adventuress; harassed and annoyed by her attorneys and their allies, who enlisted the support of officials of the government, and who were probably convinced of the justification of their subsequent action — he was finally induced to assent to part with Liberty bonds in the vast sum of $1,100,000. To the credit of the persons engaged in the transaction, it must be said that, under the terms of the gifts thus made, and the trust agreements executed, provision was made for a substantial and sufficient life income to Barnett. But, even so, and admitting that the object of the trust created for Bacone University is a worthy one, and that Mrs. Barnett, so far as is known, has been a good wife to the Indian, the provisions for his support, which are contained in the several instruments of gift, and in the trusts, will not suffice to lend countenance to the ravishment of property rights that here occurred, nor warrant officials of the government in substituting their judgment for that which Barnett was unable to exercise.
The witness Mason, who testified to a conversation had with McGugin, the attorney for Mrs. Barnett, on an occasion in 1921, when he met him, Jackson Barnett, and his wife in an automobile, has been twice convicted for unlawful sales of whisky, and is not friendly to McGugin. His evidence must, in consequence, be considered with these circumstances in mind. Nevertheless, a part of what he told was corroborated by subsequent events, and that was this:
The prophecy came true in the consummation of the transactions now before the court. The extent of the "airing" was that Mrs. Barnett received Liberty bonds in the amount of $550,000, with a part of which she created a trust for Barnett, and turned over to McGugin, as his portion of the distribution, bonds worth $125,000 or perhaps a larger sum. At the same time, and in an effort to make this transaction palatable, a deserving charity was remembered to the extent of $550,000. It is to this gift that the present suit relates.
In considering Barnett's mentality, it is pertinent to give some attention to his proclivity in making donations. In the files of the Department of the Interior, there is an undated letter, thumb-marked by him, in which he donates $1,000,000 for a hospital in or near Henryetta, Okl., $150,000 to be applied to the acquisition of land, and the erection of buildings, the balance to be utilized for an endowment of the institution. Under date of February 11, 1920, Barnett authorized the following gifts to be made out of his restricted funds:
Indiana Orphan Home, at Bacone .......... $ 50,000
Orphans' Home, near Oklahoma City 50,000
M.E. Church, South Henryetta ............ 25,000
Christian Church, Henryetta ............. 25,000
Catholic Church, Henryetta .............. 25,000
Nazarene Church, Henryetta .............. 25,000
First Presbyterian Church, Henryetta 25,000
Episcopal Church, Henryetta ............. 25,000
Silver Springs Indian Church ............ 10,000
Indian Church, near Holdenville ......... 2,500
To the Baptist Church denomination
for the work designated in the donation
itself ................................ 200,000
________
$462,000
Jackson's thumb mark to these proposed gifts, together with one of $1,000,000 for the hospital, were obtained by a man named Casey, at the suggestion of two others named Cameron and Burroughs, respectively. Casey accomplished his purpose as a result of having frequently gratified Barnett's taste for egg malted milk, and by telling him that his contribution was wanted to build a hospital. The paper was not read over to the Indian, and Casey justifies himself for not having done so by saying that Barnett could not have understood it. Had these gifts been consummated, Casey, Burroughs, and Cameron were to have received $105,000. In this connection, it is only just to say that Cato Sells, who first suggested that Barnett donate $1,000,000 for the purpose of building a hospital, was not to share in the commissions which Casey testifies were to be paid. Mr. Sells was sincere in his desire that a hospital for Indians be erected, and believed himself to be warranted in having Barnett furnish the funds for doing so. The project, however, did not materialize. One reason was that within a week or two the present Mrs. Barnett, then Mrs. Lowe, appeared on the scene, and, after several vicissitudes, succeeded in carrying Barnett to Kansas, where they were married. To make assurance doubly sure, that they were legally wedlocked, she then took him to Missouri, where a second marriage ceremony was had. A few days after the first ceremony, Barnett thumb-marked a letter in which he rescinded the foregoing authorized gifts. He was then under the dominance of his wife and her attorney, McGugin. But some time afterwards, on December 18, 1920, Casey succeeded in getting Barnett into Cameron's office in Henryetta, and had no difficulty whatever in having the Indian repudiate his rescission of the gifts proposed in the original Casey document, and, by a new authorization, reinstate the same as an expression of his wishes and desires. The instrument, last executed, was sent by Cameron to the then Commissioner of Indian Affairs, but that official, although deeply interested in the hospital project, failed to approve the gifts, and they were not made.
Thus matters remained for a period of six months. Meanwhile the administration of the national government changed, and there was a new Commissioner of Indian Affairs and a new Secretary of the Interior, and in July of 1921 overtures for withdrawals of Barnett's money were made to them. Cameron, in company with a delegation of Baptist ministers, and in possession of a letter of introduction from a man named Motter, a special assistant to the recently installed Attorney General of the United States, called on Indian Commissioner Burke, seeking his approval of the donation of $200,000 theretofore attempted to be made by Barnett. The solicitors for funds were requested to initiate the request through the office of Victor M. Locke, Jr., who was then Superintendent of the Five Civilized Tribes. Burke then wrote to Locke and said, inter alia:
"I take it for granted that one of the first steps would be to have it (the proposed donation) referred to Mr. A. J. Ward, the Creek Tribal Attorney, with a request that he express an opinion as to the legal questions that may be involved."
This course was pursued, and on September 24, 1921, Locke forwarded a memorandum prepared by his law clerk and another prepared by Ward. In the letter of transmittal, Locke called attention to the fact that Barnett had been adjudged an incompetent by one of the courts of Oklahoma, and that he had a guardian. The reports of his law clerk and that of Ward had dealt with the relationship between the Department and the probate courts of Oklahoma, and had recommended, in view of resulting questions of law and policy, that the gift be not approved. In this opinion, Locke concurred. It was near this time that McGugin met the special assistant to the Attorney General, who had introduced...
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...of his life were reviewed in subsequent litigation in which it was determined that the pretended gifts were invalid. Barnett v. Equitable Trust Co., D.C., 21 F.2d 325; American Baptist Home Mission Soc. v. Barnett 2 Cir., 26 F.2d 350, certiorari denied, 278 U. S. 626, 49 S.Ct. 28, 73 L.Ed. ......
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