Chisholm v. House

• Decision Date: 14 April 1947
• Docket Number: 3249.,No. 3220,3220
• Citation: 160 F.2d 632
• Parties: CHISHOLM et al. v. HOUSE et al. UNITED STATES v. SAME.
• Court: U.S. Court of Appeals — Tenth Circuit

160 F.2d 632 (1947)

CHISHOLM et al. v. HOUSE et al. UNITED STATES v. SAME.

Nos. 3220, 3249.

Circuit Court of Appeals, Tenth Circuit.

February 10, 1947.

Rehearing Denied April 14, 1947.

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Creekmore Wallace and Don Anderson, both of Oklahoma City, Okl. (B. E. Harkey, of Oklahoma City, Okl., and Roy White, of Eufaula, Okl., on the brief), for George Chisholm et al., appellants.

Charles O. Butler, Sp. Asst. to Atty. Gen. (David L. Bazelon, Asst. Atty. Gen., and Roger P. Marquis, Atty., Dept. of Justice, of Washington, D. C., on the brief), for the United States.

Alfred Stevenson, of Holdenville, Okl. (W. T. Anglin and O. S. Huser, both of Holdenville, Okl., on the brief), for D. W. Johnston and Washington Grayson.

Paxton Howard, of Tulsa, Okl. (Geo. W. Cunningham, of Tulsa, Okl., and Jesse M. Davis, of Houston, Tex., on the brief), for Shell Oil Co.

Thomas M. Finney, of Tulsa, Okl. (Villard Martin, Garrett Logan, and R. J. Stanton, all of Tulsa, Okl., on the brief), for Martin, Randles, Chowning and Okemah Nat. Bank.

Before PHILLIPS, BRATTON, and MURRAH, Circuit Judges.

PHILLIPS, Circuit Judge.

Cussehta Yarhola,¹ Linda Yarhola,² Maley Fiers,³ and Lessey Yarhola⁴ were enrolled, full-blood Creek Indians. Linda and Maley were each allotted tracts of land, situated in Creek County, Oklahoma. Nancy Yarhola,⁵ now Bradburn, is an enrolled, full-blood Creek Indian. Cussehta was the husband of Linda and the father of Maley, Nancy, and Lessey.

Maley and Linda executed oil and gas leases covering their respective allotments. Both leases were duly approved by the Superintendent of the Five Civilized Tribes and by the Secretary of the Interior. Each lease reserved a royalty of one-eighth of the proceeds derived from the sale of oil and gas produced, and provided that such royalty should be paid to the lessor and her successors in interest.

House was employed as a field clerk in the Union Agency at Muskogee, Oklahoma, from 1910 to 1913. He became acquainted with the Yarhola family in 1915. Cussehta, Linda, and Maley reposed trust and confidence in House. Linda sought House's advice and counsel in the preparation of her will. The will named House as executor thereunder and provided he should receive for his services, 10 per cent of all property coming into his hands as such executor. Linda died October 11, 1916. By her will, she provided that for the period of seven years next after her death, Nancy and Lessey should each be paid $2,000 per annum and Cussehta $1,000 per annum from her personal estate, and that at the end of such seven-year period, the remainder of her estate should be divided one-fifth to Cussehta, two-fifths to Lessey, and two-fifths to Nancy. Included in Linda's estate which passed under her will, was her allotment above referred to.

Maley died testate about May 3, 1917. By her will, she devised and bequeathed to Cussehta, the east one-half of her allotment and two-fifths of her personal property.

Linda's will was admitted to probate in the county court of Okmulgee County, Oklahoma. Maley's will was admitted to probate in the county court of Okfuskee County, Oklahoma. House and H. E. Kennedy were appointed executors under the will of Linda. House was appointed administrator with the will annexed of Maley's estate.

On May 16, 1921, there had accumulated in the custody of the Secretary of the Interior, $242,500 belonging to the estate of Linda, which had been invested in United States bonds and was held in trust by the Secretary of the Interior. On the lastmentioned date, the Secretary of the Interior delivered these bonds to House and Kennedy.

On February 16, 1917, an order was entered in the county court of Okfuskee County, Oklahoma, adjudging Cussehta incompetent and appointing W. H. Barber as guardian of his person and estate. The evidence introduced at the hearing on the petition for the appointment of a guardian for Cussehta fully sustained the finding of incompetency. On February 28, 1921, Barber filed a petition in the county court of Okfuskee County, requesting that House be appointed co-guardian of Cussehta. On February 28, 1921, an order was entered appointing House as co-guardian of Cussehta.

There had accumulated in the hands of the Secretary of the Interior, $160,500 belonging to the estate of Maley. The Secretary of the Interior had invested such funds in United States bonds and held such bonds in trust. The Secretary of the Interior delivered to House and Barber, as guardians of Cussehta, such bonds and $35,612.09 in cash. Such invested funds and cash were income derived from Maley's allotment and had passed to Cussehta under Maley's will.

Barber resigned as co-guardian of Cussehta in July, 1921. House resigned as co-guardian of Cussehta in March, 1923. From March, 1923, to April, 1924, H. A. Dolen and Hill Moore were guardians of Cussehta.

On September 25, 1923, Cussehta filed a petition in the county court of Okfuskee County seeking his restoration to capacity. Thereafter, he filed a motion to dismiss such petition. The motion to dismiss came on for hearing on October 1, 1923. At that hearing, Cussehta appeared in person; Dolen and Hill Moore appeared in person and by Crump, White and Seawell, their attorneys. At the hearing, Cussehta testified that Barney Beaver and one Cunningham induced him to sign the petition; that they represented to him that his guardians were wasting his estate, that Lake Moore and Joe Stone had got a lot of money out of his estate, and that if he would sign the paper, they would get the money all back within a week; that he had learned they had lied to him; and that he desired to dismiss the petition. For their services rendered to the guardians, Crump, White and Seawell were allowed a fee of $10,000 by the county judge.

On April 21, 1924, L. H. McDermott filed a petition in the county court of Okfuskee County in which he alleged that he was a friend of Cussehta and prayed that Cussehta be restored to capacity and that his guardianship be terminated. House employed Crump, White and Seawell to represent Cussehta and McDermott in the proceeding to have Cussehta restored to competency commenced on April 21, 1924. The petition purported to be signed by Cussehta by his thumbmark and to be verified by McDermott and Cussehta. Attached to the petition are certificates of Washington Grayson certifying that he signed Cussehta's name to the petition and to the verification in Cussehta's presence and at his request. On April 24, 1924, Seawell, the County Judge of Okfuskee County, filed a certificate in the matter in which he certified that he was disqualified to hear and determine the petition to restore Cussehta to capacity on account of relationship to the parties and bias and prejudice. On April 28, 1924, an agreement, selecting Guy L. Trimble, a duly licensed and practicing attorney and a member of the bar of Okfuskee County, as special judge to hear and determine the matter, executed by McDermott as next friend of Cussehta, by Crump and Carver, attorneys for Cussehta, by Hill Moore, guardian of Cussehta, and by White and Nichols, attorneys for such guardian, was filed in the county court of Okfuskee County. On April 21, 1924, Seawell entered an order setting the petition for hearing on April 25, 1924. On April 24, 1924, Dolen, the guardian, filed a motion for continuance. On April 28, 1924, the cause came on for hearing before Trimble, the special judge. Crump and Seawell appeared as counsel for petitioner and Cussehta. White and Nichols appeared as counsel for Moore and Dolen, guardians. Dolen tendered his resignation in open court. The court accepted such resignation and his name was stricken as a party to the proceeding. Cussehta appeared as a witness and testified in his own behalf. McDermott, D. W. Johnston, and four other witnesses appeared and gave testimony tending to establish Cussehta's competency. Two witnesses were called by the guardian and also gave testimony tending to establish Cussehta's competency. On April 28, 1924, Trimble, the special judge, entered an order in which he recited that McDermott and Cussehta appeared in person; that Selie Yarhola, wife of Cussehta, Lessey, his daughter, and Corner Hawkins, her husband, appeared in person and by their attorneys, Crump and Seawell; that Moore appeared in person and by his attorneys, White and Nichols; that Dolen tendered his resignation as guardian in open court and that the resignation was accepted and his name was stricken as a party; that the parties announced they were ready for trial; and that the testimony of witnesses was introduced; and in which he found that Cussehta was a person of sound mind and fully competent to manage his own estate; and in which he adjudged that Cussehta be restored to competency, and that his guardians be discharged, and that such guardians account to him for his estate in their hands. The testimony introduced at the hearing was sufficient to support the findings of the special judge.

Prior to the filing of the second petition to restore Cussehta to capacity, he entered into an agreement with House by which he agreed to pay House 10 per cent of the value of his estate in consideration of House's bringing about his restoration to capacity. On April 29, 1924, Cussehta and his wife, Selie, went to Muskogee, where they met House and R. S. Cate, a lawyer and an associate of House. At Muskogee, Cussehta and Selie executed a trust instrument which had therefore been prepared by Cate at House's request and under his direction. However, the trust instrument purports to have been executed and acknowledged before a notary public on April 28, 1924. At the same time, House selected notes and mortgages belonging to Cussehta of the face value of $30,600, and Cussehta endorsed such notes and assigned such mortgages to House as compensation for his services in bringing about Cussehta's restoration to capacity.

The...