Burdett v. Burdett

• Decision Date: 10 May 1910
• Docket Number: Case Number: 1085
• Citation: 1910 OK 120,109 P. 922,26 Okla. 416
• Parties: BURDETT et al. v. BURDETT et al. *
• Court: Oklahoma Supreme Court

1910 OK 120

109 P. 922

26 Okla. 416

BURDETT et al. v. BURDETT et al. *

Case Number: 1085

Supreme Court of Oklahoma

Decided: May 10, 1910

Syllabus

¶0 1. APPEAL AND ERROR--Necessity for Motion for New Trial. A motion for a new trial is unnecessary to enable this court to review the action of the trial court in sustaining a motion for judgment on the pleadings.

2. COURTS--Jurisdiction--Ind. Ter. Courts--Probate. The United States courts for Indian Territory, sitting in probate, were by act of Congress of May 2. 1890, c, 182, 26 Stat. 81, which extended to and put in force in Indian Territory Mansf. Dig. c. 53 on "dower," vested with jurisdiction to allot dower in personalty belonging to as estate in course of administration therein

3. COURTS--Jurisdiction--Statehood--Transfer of Probate Matters. A proceeding pending on petition for the allotment of dower in personalty belonging to an estate in course of administration in one of the United States courts in Indian Territory, sitting in probate, at the time of admission of the state into the Union, was, by section 19 of the enabling act (Act Cong. June 16, 1906, c. 3335, 34 Stat. 277), and section 23 of the schedule of the Constitution, transferred to the county court of the county in which was located the court in which said case was pending.

4. DESCENT AND DISTRIBUTION--Property of Husband--Proceeds of Insurance--Dower. Policies of insurance issued to insured on his own life, payable to himself, or, at his death, to his "executors, administrators, or assigns," where his separate property, the proceeds of which, if not otherwise disposed of by him, go to his executors as part of his estate, subject to the widow's dower, as provided in Mansf. Dig. c. 53 (Ind. T. Ann. St. 1899, c. 23), extended over and in force in Indian Territory at the time of his death.

5. DESCENT AND DISTRIBUTION--Rights of Surviving Wife--Seized." Prior to the admission of the state into the Union, testator died in what was then Indian Territory, now a part of this state, the owner of certain, insurance policies, on his life payable to himself, or, after his death, to his "executors, administrators, or assigns," the proceeds of which were collected by his executors. At the time of his death Mansf. Dig. c. 53, on "dower," had been extended to and was in force in Indian Territory by act of Congress of May 2, 1890, and provided: "Sec. 2591 (Ind. T. Ann. St. 1899. sec. 1879). "A widow shall be entitled, as part of her dower, absolutely in her own right, to one-third part of the personal estate, including cash on hand, bonds, bills, notes, book accounts, and evidences of debt, whereof the husband died seized or possessed." After renouncing the will, testator's widow petitioned the United States court for Indian Territory, Western district, wherein his estate was in course of administration, to decree her dower in the proceeds of said policies, which proceeding was, on admission of the state, properly transferred to the county court of the county in which was located the court where said case was pending, where the petition was granted. Held, that said proceeds were a part of testator's estate; that he died "seized" thereof within the meaning of said section and that the court had jurisdiction to and did not err in allotting dower in said proceeds; held further, that as there were no children of the marriage, petitioner is entitled to be endowed of one-half of the proceeds thereof collected, or which may be collected by the executors, absolutely and in her own right, as provided by Mansf. Dig. § 2592 (Ind. T. Ann. St. 1899, § 1880).

6. DESCENT AND DISTRIBUTION--Dower--Property Subject--"Seized." The term "seized" as used in Mansf. Dig. § 2591 (Ind. T. Ann. St. 1899 § 1879), when applied to dower in personalty, means "title" or "ownership," which carries with it the immediate right of possession.

* Appealed to the Supreme Court of the United States.

Error from District Court, Mclntosh County; Presley B. Cole, Judge.

Action by Sudie M. Burdett and others against Bell Burdett and others. Judgment for plaintiffs, and defendants bring error. Affirmed.

Wilkins & Vinson and Amos L. Beaty, for plaintiffs in error Bell Burdett and Mattie Ledbetter.--Citing: Martin v. McAlester, 94 Tex. 567; Hearings Succession, 26 La. Ann. 326; Pace v. Pace, 19 Fla. 438; Morris v. Dodd (Ga.) 36 S. E. 83; Hubbard v. Turner, 93 Ga. 752; Kenyon v. Kenyon (R. I.) 24 Atl. 787; Von Arb v. Thomas (Mo.) 63 S. W. 94; Redding v. Vogt (N. C.) 53 S. E. 337; Gray v. Whittermore (Mass.) 78 N. E. 422; Masonic Order v. Bunch (Mo.) 19 S.W. 25.

Wm. A. Collier, for defendant in error Sudie M. Burdett.--Citing: Huston v. Merrifield, 51 Ind. 24; U. S. Life Ins. Co. v. Ludwig, 103 Ill. 305; Amer. & Eng. Ency. (1st Ed.) vol. 3, p. 235, sec. 1; Id. vol. 13, p. 631, 650; Hasley v. Heist, 86 Ind. 45; St. John v. Amer. Mut. Life Ins. Co. (N. Y.) 64 Am. Dec. 529; Ionia Co. Savings Bank v. McLean, 84 Mich. 625; Foster v. Gile, 50 Wis. 610; Steel v. Gatlin, 115 Ga. 924; Stull v. Graham, 60 Ark. 470; Gould v. Emmerson, 99 Mass. 154; McClure v. Johnson, 56 Iowa, 620; Hatcher v. Buford, 60 Ark. 174; Johnson v. Hall, 55 Ark. 210; Libby v. Libby, 37 Me. 359; Schield v. Sharp, 35 Mo. App. 178; Conn. Mut. Life Ins. Co. v. Fish, 19 N. H. 126; 25 Cyc. pp. 890, 896; Pinneo v. Goodspeed, 120 Ill. 524; Douglass v. Parker, 84 Me. 522; Bliss on Life Insurance (2d Ed.) sec. 328; Rawson v. Jones, 52 Ga. 458; Burroughs v. Life Ins. Co., 97 Mass. 359; McIntyre v. Costello, 47 Hun. (N. Y.) 289; 14 Cyc. 901, sec. b; Hewett v. Cox, 55 Ark. 234; Crowley v. Mellon, 52 Ark. 1.

TURNER, J.

¶1 On January 10, 1907, Sudie M. Burdett, defendant in error, in the United States court for the Indian Territory, Western district, at Eufaula, filed her petition in which she alleged herself to be the widow of Joshua Burdett who died in Eufaula on or about April 3, 1906; that pursuant to his last will and testament, duly probated in said court, letters testamentary had issued to Phil. W. Samuels and Elmer C. Million, as executors thereof; that under the terms of said will she, Bell F. Burdett, Mattie B. Ledbetter, James C. Crabtree, C. L. Samuels, Phil. W. Samuels, and Elmer C. Million are the sole legatees; that she had filed in said court her election renouncing the provisions made for her under said will and electing to take dower in said estate; that at the time of his death said Joshua Burdett owned a large amount of property (setting it out), including certain policies on his life, as follows: Policies in Equitable Life Assurance Society, $ 70,000; policies in the Mutual Life Insurance Company of New York, $ 20,000; policies in the Indiana State Life Insurance Company of Indiana, $ 10,000; policies in the Provident Saving Life Assurance Company of New York, $ 35,000; policies in the Penn Mutual Life Insurance Company of Philadelphia, $ 100,000. In all of which she alleged herself entitled to be endowed by virtue of the statute then in force in Indian Territory; that under said statute, as there were no children born of her marriage with said Joshua Burdett, she alleged herself entitled to be endowed of one-half of all the personal property of his estate, including cash on hand, bonds, bills, notes, book accounts, and evidences of debt whereof the said Joshua Burdett died seised or possessed, and also one-half of all the real estate of which her said husband died seised; that she had demanded of said executors that her dower be set apart to her, which had not been done, and prayed that they be directed so to do, and for all proper orders in the premises.

¶2 On January 25, 1907, Bell F. Burdett and Mattie Ledbetter, joined by her husband, J. W. Ledbetter, answered in substance that prior to his death deceased had purchased a block of ground in the town of Eufaula and erected thereon certain buildings and improvements, and caused title thereto to be vested in petitioner; that he had expended large sums of money on her allotment; that he had purchased a number of policies of insurance on his life payable to her at his death and had paid premiums thereon until that time, all of which was intended to be in lieu of dower. (This conclusion was eliminated by stipulation and is unsupported.) That the several policies set forth in the petition are, by their terms, payable to the executors, administrators, or assigns of the deceased, after proof of his death occurring while they were in force; that none of them possessed a surrender value to deceased, except those in Equitable Life Assurance Society and the Mutual Life Insurance Company of New York, and that they were pledged by him for debts exceeding such value; that he died seised of no claim or right of action against any of said insurance companies under the policies out of which dower is sought. (This allegation as to seizure was also eliminated.) That a large portion of the property set forth in the petition was pledged or mortgaged by deceased, and so remained at the time of his death (setting forth the items so pledged and to whom and for what amounts, including the two policies aforesaid), and that there may be and probably are other pledges and liens having priority over the dower sought to be assigned in said property; that of said $ 235,000 life insurance so payable, said two policies of $ 20,000 each, pledged by deceased, had been collected and the proceeds thereof applied by the pledgee in satisfaction of the debt due it; that the amount collected by the executors on the remaining policies for $ 50,000 in the Equitable Life Assurance Society, after payment to it of the debt for which they were pledged, was $ 55,154.02; that the State Life Insurance Company of Indiana claimed and secured an offset on the policy issued by it and paid in full thereon $ 9,762, making in all only $ 55,154.02 of said life insurance actually paid into the hands of the executors, who had instituted suit on said remaining policies, which said suits...