Brady v. Sizemore
| Decision Date | 14 May 1912 |
| Citation | 124 P. 615,33 Okla. 169,1912 OK 331 |
| Parties | BRADY v. SIZEMORE et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Where a duly enrolled citizen of the Creek Nation died on March 1 1901, before receiving his allotment or a certificate of selection therefor, held, that he died seised of no estate of inheritance therein.
Where a duly enrolled citizen of the Creek Nation died on March 1 1901, before receiving his allotment for which on August 23 1902, certificate of selection issued to his heirs held. that chapter 49 of Mansfield's Digest of the Laws of Arkansas (Ind. T. Ann. St. 1899, §§ 1820-1843) governs the devolution of the allotment, as provided by the Indian Appropriation Act of May 27, 1902 (32 Stat. 258, c. 888) and section 6 of an act of Congress approved June 30, 1902, ratified July 26, 1902 (32 Stat. 500, c. 1323), known as the Creek Supplemental Agreement, to be applied as if deceased had received title to his allotment and died seised thereof.
Error from District Court, Wagoner County; John H. King, Judge.
Action by Foil M. Brady against William Sizemore and others. Judgment for defendants, and plaintiff brings error. Reversed and remanded, with directions.
John R. Thomas and Grant Foreman, both of Muskogee, for plaintiff in error.
W.D. Halfhill, of Muskogee, for defendants in error.
On December 8, 1905, plaintiff in error, Foil M. Brady, alleging himself to be the sole heir at law of Ellis Grayson, a deceased citizen of the Creek Nation, sued William Sizemore and Jeannetta Newberry, defendants in error, who claimed to be his sole heirs, in the United States Court for the Indian Territory, Northern District at Wagoner, to determine the question of heirship and which of the two contending parties was entitled to the allotment of said deceased. After reference to the master, there was trial to the court and judgment for defendants, and plaintiff brings the case here. The facts are: That Ellis Grayson, a duly enrolled citizen of the Creek Nation and, as such, entitled to an allotment, died intestate March 1, 1901, leaving him surviving neither child nor children nor their descendants, nor father nor mother, nor brother nor sister; but leaving him surviving plaintiff in error, the son of an aunt on the paternal side, and defendants in error, the children of an aunt on the maternal side; all three claimants being first cousins of the deceased. That on August 23, 1902, the Commission to the Five Civilized Tribes issued to the heirs of said Grayson a "certificate of selection" for the N.W. 1/4 of the, S.W. 1/4 of section 13, township 17 N., range 17 E., and the S.E. 1/4 of the N.W. 1/4 and lots 1 and 2 of section 19, township 17 N., range 18 E., containing 163.60 acres. That on June 13, 1905, the Principal Chief of the Creek Nation delivered to plaintiff, as the heir at law of said Grayson, patents therefor which had been approved by the Secretary of the Interior and were thereafter duly recorded.
It is insisted for Brady, herein called plaintiff, that chapter 49 of Mansfield's Digest of the Laws of Arkansas (Ind. T Ann. St. 1899, c. 21) is the governing statute and determines the devolution, and that he as the sole heir of the allottee is entitled to the whole allotment. On the other hand, by defendants in error, herein called defendants, it is contended that the Creek law of descent and distribution determines the devolution, and that they, who are brother and sister, are his "nearest relation," and as such the sole heirs of the allottee and entitled to his allotment in equal moieties. The trial court took this view, but therein was error. Having died on March 1, 1901, after enrollment (under the "Curtis Act") and before receiving his allotment, it might seem, as contended, that the devolution of his allotment is governed by section 28S of the original agreement ratified May 25, 1901, which reads: "All citizens who were living on the first day of April, eighteen hundred and ninety-nine, entitled to be enrolled under section twenty-one of the act of Congress approved June twenty-eighth, eighteen hundred and ninety-eight, entitled 'An act for the protection of the people of the Indian Territory, and for other purposes,' shall be placed upon the rolls to be made by said commission under said act of Congress, and if any such citizen has died since that time, or may hereafter die, before receiving his allotment of lands and distributive share of all funds of the tribe, the lands and money to which he would be entitled, if living, shall descend to his heirs according to the laws of descent and distribution of the Creek Nation, and be allotted and distributed to them accordingly." Act March 1, 1901, c. 676, 31 Stat. 870. And that such would be in keeping with Sanders v. Sanders et al., 28 Okl. 59, 117 P. 338. Not so. In that case where a duly enrolled citizen of the Creek Nation was in possession of...
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