Bruce v. Globe Indemnity Co.

• Decision Date: 30 January 1935
• Docket Number: No. 1830.,1830.
• Citation: 9 F. Supp. 761
• Parties: BRUCE et al. v. GLOBE INDEMNITY CO.
• Court: U.S. District Court — Northern District of Oklahoma

9 F. Supp. 761

BRUCE et al. v. GLOBE INDEMNITY CO.

No. 1830.

District Court, N. D. Oklahoma.

January 30, 1935.

H. W. Conyers and H. R. Duncan, both of Tulsa, Okl., for plaintiffs.

M. L. Holcombe, Clarence Lohman, and R. A. Barney, all of Pawhuska, Okl., for defendant.

FRANKLIN E. KENNAMER, District Judge.

Plaintiffs seek the recovery of $10,000 from the defendant, Globe Indemnity Company, upon an executor's bond, executed by A. Wade Patton, executor of the estate of Maude Panther Bruce, a deceased member of the Osage Tribe of Indians, as principal, and the defendant as surety. Patton was appointed executor of the estate on July 7, 1925, by the county court of Osage county, Okl. He qualified as such, and filed his bond, executed by the defendant as surety, for the principal sum of $10,000, which bond, after reciting the provisions contained therein as required by law, also provided, "This bond is made subject to all the provisions of Section 3 of the Act of Congress approved April 18, 1912, amendatory to the Osage Indian Allotment Act of June 28, 1906, and acts amendatory thereof," and, "* * * shall faithfully execute the duties of said trust as such executor, according to law."

The executor received $31,701.83 from the superintendent of the Osage Agency, who made the payments under the directions of the Secretary of the Interior. The funds paid by the Osage Agency to the executor, were moneys which had accrued to the credit of the Osage headright of the deceased, Maude Panther Bruce, subsequent to her death. These funds were disbursed by the executor, during his administration, by paying $15,005.61 to the minors, plaintiffs herein; $10,090 in claims for debts of the deceased; $2,514.55 for expenses of last illness and funeral; $237.70 as court costs; $238.32 as bond premiums; $1,415 as executor's fees; $688.60 as attorney's fees; $564.83 for insurance and taxes; and $645 in miscellaneous expenses.

The allowance to the minors in the amount of $15,005.61, was paid for family allowance under orders of the county court, and approved by the Osage Agency. The minors received the money, and should be chargeable therewith. It can make no difference that the funds were not paid directly by the Osage Agency to the heirs, if in fact such funds were received by them through an intermediary, the executor. Subtracting the $15,005.61 from the total received, there is a balance of $16,696.83, which appears to have been used by the executor in paying the debts of the deceased and the administration costs.

A jury has been waived and the order submitted to the court for determination. The facts are not in dispute, and the question for determination is, Are the plaintiffs entitled to recover against the surety of the executor upon the bond for the funds accrued to the headright of the deceased, Maude Panther Bruce, because of said executor having paid claims of the deceased which had their foundation in debts owing by the deceased on the date of her death?

It is established by the pleadings and stipulation on file, that C. L. Bruce, one of the plaintiffs in the action, is a white man and was the husband of Maude Panther Bruce during her life, and that by reason thereof, inherited one-third of her estate; that the minor plaintiffs herein were the minor children of the deceased, and have inherited the remaining two-thirds of the estate. The record further establishes that C. L. Bruce consented to the payment of the debts of the deceased out of the funds involved in this action, by sending a letter to that effect to the Interior Department.

Section 7 of the Act of April 18, 1912 (37 Stat. L. 86, 88) specifically provides: "That inherited moneys shall be liable for funeral expenses and expenses of last illness of deceased Osage allottees, to be paid upon order of the county court of Osage County, State of Oklahoma."

The item of $2,514.55 is properly liable under the above statute.

This court has previously announced that funds accruing to a headright subsequent to the death of a member of the Osage Tribe of Indians, descend directly to the heirs of such tribal member, and are not assets of the estate of the deceased, subject to administration by the probate courts of Oklahoma for the purpose of paying the debts and costs of administration, except expenses of last illness and funeral. Tapp v. Stuart (D. C.) 6 F. Supp. 577, which was an opinion upon a motion to dismiss, and Id. (D. C.) 9 F. Supp. 23, filed in the case December 8, 1934, which was a decision upon the merits. Other decisions have also established that such funds, accruing after the death of the deceased, are payable directly to the heirs, and are not subject to distribution by the county court of Osage county. De Noya v. Arrington, 163 Okl. 44, 20 P. (2d) 563; In re Denison (D. C. Western Dist. Okl.), 38 F.(2d) 662; Taylor v. Tayrien (C. C. A. 10) 51 F.(2d) 884. It is unnecessary to here consider the congressional acts, or the reasons supporting the above decisions. For such decisions, see Tapp v. Stuart (D. C.) 9 F. Supp. 23, filed December 8, 1934, and United States v. Hughes (D. C. Northern Dist., Okl.) 6 F. Supp. 972. The county court of Osage county was without jurisdiction to subject such funds to the payment of the debts of the deceased. All claims for the expenses of last illness and funeral should have been approved by the county court, and thereafter submitted to the Secretary of the Interior for payment. Any orders of the county court with respect to such trust funds were void and subject to collateral attack, because the probate court was without jurisdiction over such funds. See Cowokochee v. Chapman et al., 90 Okl. 121, 215 P. 759; ...