Caesar v. Burgess, 1767.

• Decision Date: 11 April 1939
• Docket Number: No. 1767.,1767.
• Citation: 103 F.2d 503
• Parties: CAESAR v. BURGESS et al.
• Court: U.S. Court of Appeals — Tenth Circuit

103 F.2d 503 (1939)

CAESAR v. BURGESS et al.

No. 1767.

Circuit Court of Appeals, Tenth Circuit.

April 11, 1939.

COPYRIGHT MATERIAL OMITTED

William W. Pryor and Glenn O. Wallace, both of Wewoka, Okl., for appellant.

William H. Churchwell, Atty., Department of Justice, of Washington, D. C., and Charles N. Champion, Asst. U. S. Atty., of Muskogee, Okl. (Cleon A. Summers, U. S. Atty., of Muskogee, Okl., on the brief), for appellee United States.

Louis A. Ledbetter, of Wewoka, Okl. (John T. Cooper and Bat Shunatona, both of Wewoka, Okl., Luther Bohanon, of Oklahoma City, Okl., and Arthur S. Wells, of Wewoka, Okl., and Tom Huser, of Oklahoma City, Okl., on the brief), for other appellees.

Before PHILLIPS and BRATTON, Circuit Judges, and VAUGHT, District Judge.

BRATTON, Circuit Judge.

This is a proceeding for the probate of a will of an Indian. The facts are not in dispute. Jeanetta Burgess, nee Tiger, an enrolled full blood restricted Creek Indian, executed her last will and testament in which she bequeathed to her eight living children and a stepson, each, the sum of $25, and to her husband, John Caesar or John Burgess, the rest, residue, and remainder of her estate. No provision was made for two grandchildren, the issue of a deceased son of the testatrix. The instrument was silent in respect to them. The husband was named as executor. Alex Sulphur, Isaac Jones, and Anna Burgess subscribed the instrument as attesting witnesses. Isaac Jones was the husband of a daughter of the testatrix, a legatee; and Anna Burgess was the wife of the stepson of the testatrix, also a legatee. The testatrix acknowledged the instrument before J. Henry Weston, county judge of Seminole County, and he approved it in writing. The husband was an enrolled Seminole Indian; the children were unenrolled Indians; the stepson was an enrolled Seminole; and the entire estate consisted of restricted lands in Oklahoma, and restricted moneys in the custody of the Secretary of the Interior.

The testatrix died about four years after the execution of the will. John Caesar tendered the instrument to the county court and prayed that it be admitted to probate. All of the children except one, and the two grandchildren, lodged contests on the ground that at the time of its execution the testatrix was incompetent and incapacitated to execute it, and that it was not executed and attested as required by law. Notice of the pendency of the proceeding was served upon the superintendent of the Five Civilized Tribes. The United States seasonably thereafter filed a petition for the removal of the proceeding to the United States court, and the judge of the county court entered an order of removal. The United States subsequently intervened alleging that the testatrix was mentally capacitated to execute the will; that she did not act under duress, menace, fraud, undue influence, or misrepresentation; and that the will was valid. It later filed an amendment to its plea in intervention alleging that from the information then in its possession it was uncertain whether the testatrix had testamentary capacity, and was uncertain whether the instrument was executed, under duress, or undue influence, and that it was not executed, acknowledged, and approved as required by law. The prayer was that the instrument be not probated. One surviving child died while the proceeding was pending in the United States court, and the administrator of his estate was substituted as a party.

The depositions of Sulphur and Anna Burgess, as attesting witnesses, were on file; and they testified in person at the hearing. Weston, John Caesar, and Harper Burgess also testified. The court concluded as matters of law that the respective spouses of the two legatees were not competent to act as attesting witnesses; and that the instrument was invalid as a will for want of two competent attesting witnesses. A decree was entered rejecting it for probate. John Caesar appealed.

The jurisdiction of the court below is challenged. The contention is that the proceeding was not subject to removal from the county court. The question was not presented in any form to the court below. It is raised here for the first time, but since it relates to jurisdiction of the subject-matter it may be raised at any time. It is well settled that a proceeding purely for the establishment and probate of a will, and matters of strict probate relating to the administration of estates of decedents are not within the general equity jurisdiction of the courts of the United States. Gaines v. Fuentes, 92 U.S. 10, 23 L.Ed. 524; Ellis v. Davis, 109 U.S. 485, 3 S.Ct. 327, 27 L.Ed. 1006; Waterman v. Canal-Louisiana Bank and Trust Co., 215 U.S. 33, 30 S.Ct. 10, 54 L.Ed. 80; Sutton v. English, 246 U.S. 199, 38 S.Ct. 254, 62 L.Ed. 664. It is likewise clear that the general removal statute — section 28 of the Judicial Code, 28 U.S.C.A. § 71 — has no application to a proceeding of that kind and that such a proceeding is not removable under its provisions. Wahl v. Franz, 8 Cir., 100 F. 680, 49 L.R.A. 62; In re Cilley, C.C., 58 F. 977; Reed v. Reed, C.C., 31 F. 49.

But this proceeding was not removed under that statute. It was removed under section 3 of the Act of April 12, 1926, 44 Stat. 239, 240, which provides that a party to a suit in the United States Court in Oklahoma or in the state court of that state to which a restricted member of the Five Civilized Tribes, or the restricted heirs of grantees of such an Indian are parties, as plaintiff, defendant, or intervenor, and claiming or entitled to claim title to or an interest in lands allotted to a citizen of the Five Civilized Tribes, or the proceeds or profits therefrom, may serve written notice of the pendency of such suit upon the superintendent of the Five Civilized Tribes; that the United States may appear in such cause within twenty days thereafter or within such further time as the court may allow; that after such appearance or the expiration of the time allowed therefor the proceedings and judgment shall bind the United States and the parties thereto to the same extent as though no Indian land or question were involved; that within twenty days after service of notice on the superintendent or within such further time as the court may in its discretion permit, the United States shall have the right to remove any such suit pending in the state court to the United States District Court by filing a petition for such removal in the suit in the state court; that it shall be the duty of the state court to accept such petition when filed and proceed no further in the action; and that after removal in that manner the cause shall proceed as if it had been originally commenced in the United States court. Prior to the enactment of such statute, the United States was not bound by the judgment or decree of a state court in an action, to which it was not a party, quieting title to restricted lands or determining other questions of property affecting restricted members of the Five Civilized Tribes. Instead, it was free to proceed in the United States court to have such a judgment or decree set aside. Sunderland v. United States, 266 U.S. 226, 45 S.Ct. 64, 69 L.Ed. 259. The plain purpose of the statute was to provide for the giving of notice to the superintendent of the Five Civilized Tribes; for the United States becoming a party at its election; and for the judgment or decree having binding and conclusive effect on the United States. The United States thus yielded to that extent its exclusive jurisdiction of its restricted Indian wards. But in doing so it expressly reserved in clear language the right to remove any such suit to the United States court. The statute is complete within itself and authorizes the removal of a cause coming within the ambit of its provisions even though other independent grounds of federal jurisdiction are not present. United States v. Mid-Continent Petroleum Corporation, 10 Cir., 67 F.2d 37, certiorari denied, Hosey v. Mid-Continent Petroleum Corp., 290 U.S. 702, 54 S.Ct. 346, 78 L.Ed. 603. Is this proceeding within its purview?

Section 1067, Oklahoma Statutes 1931, 58 Okl.St.Ann. § 1, provides that the county court shall have probate jurisdiction. Section 1080, 58 Okl.St.Ann. § 709, provides that all issues of fact must be tried by the court; that after hearing the court shall give in writing the findings of fact and conclusions of law, and shall enter judgment; and that the judgment shall be enforced by execution or otherwise as in civil actions. Section 1082, 58 Okl.St. Ann. § 2, provides that the proceedings of the court shall be construed in the same manner and with like intendments as the proceedings of courts of general jurisdiction, and that its judgments and decrees shall be accorded like force and effect as the judgments and decrees of district courts. Section 1090, 58 Okl.St.Ann. § 21, provides that the custodian of a will shall deliver the same to the county court having jurisdiction of the estate, or to the executor named therein. Section 1091, 58 Okl.St.Ann. § 22, provides that an executor, devisee or legatee, or other person interested in the estate may petition the court to have the will proved. Section 1101, 58 Okl.St.Ann. § 41, authorizes the contest of a will and provides that on the trial the contestant shall be plaintiff and the petitioner defendant. Section 1102, 58 Okl.St.Ann. § 42, provides that the court shall make findings of fact and conclusions of law upon the issues submitted, and render judgment either admitting the will to probate or rejecting it. The supreme court of the state has held repeatedly that a contested proceeding for the probate of a will is a special proceeding in the nature of an equitable action, In re Smith's Estate, 105 Okl. 218, 232 P. 399, In re Wah-kon-tah-he-um-pah's Estate, 109 Okl. 126, 234 P. 210, Youngblood v. Rector, 126 Okl. 210, 259 P. 579, In re Chubbee's Will, 133 Okl. 156, 271 P. 681, In re...