Chastain v. Larney

Decision Date04 December 1928
Docket NumberCase Number: 18301
Citation272 P. 471,134 Okla. 127,1928 OK 698
PartiesCHASTAIN v. LARNEY et al.
CourtOklahoma Supreme Court
Syllabus

¶0 1. Descent and Distribution--Under Arkansas Statute "Ancestor" Held to Mean Immediate Ancestor.

Under section 2533 of Mansfield's Digest of the Statutes of Arkansas, the meaning of the term "ancestor" is not simply a lineal ascendant or ancestor, but the person from whom the property is derived by an heir under the statute; and the term "ancestor," as therein used, means an immediate ancestor, and not a mediate or remote ancestor.

2. Same--"Transmitting Ancestor.

Under section 2531 of Mansfield's Digest of the Statutes of Arkansas, where an estate which an intestate received by descent from his ancestor was acquired by the latter from his ancestor, the last ancestor, the person from whom the intestate immediately derived his title by descent, is the transmitting ancestor, and the kindred who inherit need be of the blood of only such last or "transmitting ancestor.

3. Same--Indians--Devolution of Seminole Allotment as Ancestral Estate.

"Therefore, where Nellsie, a Seminole citizen, died seized of an allotment of land, leaving surviving her as her next of kin, a full brother, Tom, and a maternal half-brother, Alma, her estate being in fiction of law ancestral, one-half thereof, or all that part which came to her "by her father," an Indian citizen, passed to Tom, her full brother, and the other half thereof, which came to her by reason of the blood of her mother, also an Indian, passed to Tom and Alma in equal parts. Subsequently, Tom died intestate and without issue, leaving as his next of kin, Alma, his maternal half-brother; held, that on this second descent or second cast, Nellsie was the ancestor of Tom, and that Alma (being of the blood of Tom and also of the blood of Nellsie), inherited all that portion of the estate from Nellsie of which Tom died seized, being a three-fourths interest therein.

Commissioners' Opinion, Division No. 2.

Error from District Court, Seminole County; E. A. Summers, Assigned Judge.

Action by Hattie Larney et al. against J. B. Chastain et al. Judgment for plaintiffs, and defendant J. B. Chastain appeals. Reversed, with directions.

J. B. Campbell, Pryor & Stokes, and Criswell & Billingsley, for plaintiff in error.

Neff & Neff, for defendants in error.

HALL, C.

¶1 This action or controversy involves the devolution of the estate of Nellsie, a Seminole Indian. The devolution is on a second cast of an "ancestral estate." The Arkansas law governs the descent.

¶2 Nellsie had one full brother, whose name was Tom Chotkey. Their mother was Cho Chee, and their father was Parhose. Nellsie had a half-brother named Alma Chotkey, whose mother was Cho Chee and whose father was some other Indian or person than Parhose. Of these three children Nellsie died first, in the year of 1902, and Tom Chotkey, her full brother, died about one year later. Alma Chotkey, the maternal half-brother, is still living. Cho Chee, the mother of these three children, died at about the same time of the death of Nellsie. She was dead when Tom Chotkey died. The date of her death is not material to this controversy. Parhose, the father of Nellsie and Tom Chotkey, was a Seminole citizen, and died prior to December 31, 1899, and was not enrolled.

¶3 These facts as above set forth conform to the findings of the trial court. The issue is purely a question of law. Both parties recognize the legal fiction that the allotment of Nellsie was an ancestral estate, and that upon her death one-half of her estate passed to her kindred in the line of her father, and one-half to her kindred in the line of her mother; that Alma Chotkey and Tom Chotkey represented the line of the mother of Nellsie, and took that half interest in equal parts attributed to the blood of Cho Chee. Further, that Tom Chotkey alone represented the line of Parhose, the father of Nellsie, and therefore he (Tom) took all that half. It is over this half, represented by the line of Parhose, that this controversy arose. Tom died seized of this one-half as well as one-fourth represented by the line of his mother, Cho Chee.

¶4 The contention of the plaintiff in error is well set forth by counsel in their brief as follows:

"Defendants below, and plaintiff in error here, contend that Nellsie is the ancestor of Tom Chotkey in this second descent; that it is the kin of Tom Chotkey of the blood of Nellsie who take on the death of Tom Chotkey; that, on this second cast, the blood of Parhose is not to be considered; that Alma Chotkey, the half-brother of Nellsie was her next of blood kin, and was next of kin of Tom Chotkey, and on the death of the latter, the interest of Tom Chotkey passed to his kin of the blood of Nellsie; and Alma Chotkey took all."

¶5 The plaintiffs below, and defendants in error herein, contend, and the court held that on the death of Tom Chotkey, his next of kin of the blood of Parhose took the interest that came to him through his blood of Parhose; that no matter how many descents and different casts, it must follow the blood of Parhose.

¶6 The governing statutes, included in chapter 49 of Mansfield's Digest of the Statutes of Arkansas, are as follows:

"Section 2531. In cases where the intestate shall die without descendants, if the estate comes by the father, then it shall ascend to the father and his heirs; if by the mother, the estate, or so much thereof as came by the mother, shall ascend to the mother and her heirs. * * *" (Matter dealing with new acquisitions.)
"Section 2533. Relations of the half-blood shall inherit equally with those of the whole blood in the same degree; and the descendants of such relatives shall inherit in the same manner as the descendants of the whole blood, unless the inheritance come to the intestate by descent, devise, or gift, of some one of his ancestors, in which case all those who are not of the blood of such ancestor shall be excluded from such inheritance." (Emphasis ours.)

¶7 The trial court, in reaching his legal conclusions in this case, and in construing these statutes of descent (sections 2531-2533, Mansfield's Digest), followed the rules in force at common law governing the devolution of ancestral estates.

¶8 This rule of the common law, and sometimes referred to as the "fifth canon of descent," is as follows:

"The heir must be of the blood of the ancestor who brought the estate into the family; or, to be more specific, the ancestor who last acquired the estate by purchase, no matter how many intervening transfers of title by descent or by gift, or by gratuitous devise from an ancestor there may have been."

¶9 The doctrine was applied by the North Carolina Supreme Court, in the case of Poisson v. Petteway, 159 N.C. 650, 75 S.E. 930, in which it was said:

"Even since 1842 we think that it has been settled substantially that when an estate goes to a person through a series of descents or settlements, and that person dies without issue, it results back to those of his collateral relations who would be heirs of the ancestor from whom it originally descended or by whom it was originally settled. Wilkerson v. Bracken, 24 N.C. 315."

¶10 This common-law doctrine, like nearly every other provision of the common law relating to the succession of real property, has never met with any considerable favor by the courts of this country. There are, however, a few exceptions: Pennsylvania, Maryland, and North Carolina being the states adhering to the common-law doctrine relative to ancestral estates. Arkansas has afforded a fertile field for meritorious debate,--the courts of that state having decided the question both ways during the last 20 years.

¶11 As against this common-law rule, is the American doctrine, which is as follows:

"On the other hand, by the construction placed upon these statutes in the majority of the states where the question has arisen, it is only necessary and proper to look to the intestate's ancestor, and no inquiry will be made as to the mode in which such ancestor obtained his title. Stated in other ways, the majority rule is that title and succession will not be traced back to remote ancestors, that the statutes refer to immediate and not mediate descents, and that the statutes mean an immediate descent, devise, or gift, and make the immediate ancestor, donor, or devisor the sole stock of descent." 18 C. J. 817.

¶12 Had this judgment been rendered before the decision of the Arkansas Supreme Court, in the case of Carter v. Carter, 129 Ark. 7, and 573, 195 S.W. 10 and 1184, the question and problem before us would have been even more complex and more difficult. We think, however, the Carter Case, supra, which we will later discuss, definitely settles the law governing this controversy. But, by reason of the fact that the Carter Case, supra, was not rendered until 1917, a considerable time subsequent to the act of Congress and treaty provisions applying the Arkansas statutes of descent to lands allotted to the Seminole Indians, it will be necessary to discuss the Arkansas law of descended estates, in the light of the interpretation given its statutes, by its own courts of last resort, prior to their adoption by the Seminole Tribe of Indians, which was on June 2, 1900.

¶13 It clearly appears that, at the time chapter 49 of Mansfield's Digest of the Statutes of Arkansas, was made applicable to the lands of the Seminole Indians, and for a considerable time thereafter, the exact question presented here had never been directly decided The question was considered on the 13th day of January, 1908, in the case of Johnson v. Phillips, 85 Ark. 86, 107 S.W. 170, in which case it was definitely decided that the inheritance must follow the blood of the last purchaser, being the conclusion reached by the trial court in the case at bar. This decision remained undisturbed (so far as this writer knows) until 1917. On April 30, 1917, the doctrine or rule was disregarded in the...

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