Coats v. Riley, Case Number: 20454

• Decision Date: 08 December 1931
• Docket Number: Case Number: 20454
• Citation: 1931 OK 758,154 Okla. 291,7 P.2d 644
• Parties: COATS et al. v. RILEY et al.
• Court: Oklahoma Supreme Court

1931 OK 758

7 P.2d 644

154 Okla. 291

COATS et al. v. RILEY et al.

Case Number: 20454

Supreme Court of Oklahoma

Decided: December 8, 1931

Syllabus

¶0 1. Wills--Will of Full--Blood Indian Devising Real Estate and Disinheriting Parent, Spouse or Child--Necessary Acknowledgment and Approval.

Under the provisions of section 23 of the Act of Congress of April 26, 1906, as amended by section 8 of the Act of Congress of May 27, 1908, a will of a full-blood Indian devising real estate is invalid, if it disinherits the parent, wife, spouse, or children of such full-blood Indian, unless the will was acknowledged before and approved by a judge of the United States Court for the Indian Territory, or a United States Commissioner, or a judge of a county court of the state of Oklahoma.

2. Same--Will of Full-Blood Indian Disinheriting Children Held Invalid.

Record examined, and held that the will herein questioned is that of a full-blood Indian; that it devises real estate consisting of allotted land; that it disinherits children of such full-blood Indian; that it was not acknowledged before and approved by a judge of the United States Court for the Indian Territory, or a United States Commissioner, or a judge of a county court of the state of Oklahoma; and that it is invalid, under the provisions of section 23 of the Act of Congress of April 26, 1906, 34 Stat. L. 137, as amended by section 8 of the Act of Congress of May 27, 1908, 35 Stat. L. 312.

3. Same--Requisite Acknowledgment and Approval of Will not Within Purview of County Court's Jurisdiction in Admitting Will to Probate.

The approval and acknowledgment of the will of a full-blood Indian required by Act of April 26, 1906, 34 Stat. 137, sec. 23, as amended by the Act of Congress of May 27, 1908, 35 Stat. 312, sec. 8, is not an element of the execution and attestation of the will contemplated by the statute of Oklahoma, and is not within the purview of the jurisdiction of the county court in admitting a will to probate.

4. Same--Determination of Whether Children Disinherited--Value of Lands Devised to Each as Factor.

In determining whether or not children of a full-blood Indian were disinherited by a will of such full-blood Indian devising real estate, within the meaning of section 23 of the Act of Congress of April 26, 1906, as amended by section 8 of the Act of Congress of May 27, 1908, the value of the lands devised to each of the devisees at the date of the death of the testator is the determining factor, and, if the lands devised to each were not at that time of substantially the same value, there was a disinheritance and the will is invalid.

5. Same--Effect of Disproportion in Acreage Devised.

A will of a full-blood Indian devising 230 acres out of a tract of land to one child and ten acres out of the same tract of land to each of three other children of the testator, in the absence of proof that the land devised was all of substantially equal value, will be presumed to have disinherited the children of the testator, and the burden is upon the one claiming that the will is valid to show that the disproportion in the acreage of the land devised did not amount to a disproportion in the value of the land devised.

6. Evidence--Presumption From Failure to Produce Evidence.

Where it lies within the power of a party to an action to produce evidence upon an issue, and he fails, the presumption follows that the evidence, if produced, would be unfavorable to the cause of such party.

7. Wills--Void Will Devising Restricted Indian Lands not Validated by Decree of Court Admitting Will to Probate, and Heir not Estopped by Contesting Probate.

A will which is void as a conveyance of restricted Indian lands because it fails to comply with the requirements of the acts of Congress providing the manner by which such will must be executed, cannot be given validity by the judgment of the county court admitting such will to probate, and the decree of the probate court admitting such will to probate is not available as an estoppel against a lawful heir of the decedent in an action for possession of the lands attempted to be devised, even though the heir appeared in the probate court and contested the probate of the will.

8. Same--Grandchildren of Testator Held Entitled to Maintain Action to Recover Inheritable Interest in Real Estate Devised.

Record examined, and held that, inasmuch as the will of the full-blood Indian herein questioned attempting to disinherit children of the testator was not approved by a judge of the United States Court for the Indian Territory, or a United States Commissioner, or a judge of a county court of the state of Oklahoma, as provided by section 23 of the Act of Congress of April 26, 1906, as amended by section 8 of the Act of Congress of May 27, 1908, the same is invalid, and grandchildren of the testator may maintain an action for recovery of their inheritable interest in the real estate devised.

9. Courts--Statutes--Subsequent Decision of Court Construing Procedural Statute Held to Apply Retroactively.

The general rule that a decision of a court construing a statute is prospective in operation only and does not affect a contract made pursuant to a former decision of the court, does not apply to a decision of a court construing a statute affecting procedure or a legal remedy, and a subsequent decision construing such a statute applies retroactively as well as prospectively.

10. Same -- Wills -- Right of Minor Heir Within Year After Removal of Disability to Attack Probate of Will of Full-Blood Indian.

Under the provisions of section 1121, C. O. S. 1921, a minor heir of a deceased full-blood Indian may contest the probate of a will or the validity thereof, within one year after the disability is removed. A decision of this court, holding that an order of a county court admitting a will of a full-blood Indian to probate is final and not subject to collateral attack in a suit in partition filed by an heir on a ground that the will is void on account of noncompliance with the federal statute, does not deprive a minor heir of the right to attack the probate of the will or the validity thereof, within one year after removal of the disability, under the provisions of section 1121, supra. The right of a minor heir to attack the probate of a will or the validity thereof, within one year after the removal of the disability, remains pursuant to the provisions of section 1121, supra. A subsequent decision of this court, holding that the approval and acknowledgment of a will of a full-blood Indian, as required by an act of Congress, is not an element of due execution and attestation of the will of such Indian, was a decision affecting procedure and remedy, which applied retroactively as well as prospectively.

11. Same--Effect of Change in Decisions of Court Permitting Collateral Attack on Validity of Will of Full-Blood Indian Disinheriting Children.

One who purchased real estate that had been devised by a full-blood Indian under a will which had not been acknowledged before and approved by a judge of the United States Court for the Indian Territory, or a United States Commissioner, or a judge of a county court of the state of Oklahoma, in reliance in good faith upon the decision of this court in Homer v. McCurtain, 40 Okla. 406, 138 P. 807, did not acquire rights which would prevent an attack upon the validity of the will on the ground that the same disinherited children of the testator, after the rule stated in Armstrong v. Letty, 85 Okla. 205, 209 P. 168.

12. Same.

Under the rule stated by this court in Armstrong v. Letty, 85 Okla. 205, 209 P. 168, an attack upon the validity of a will of a full-blood Indian theretofore admitted to probate may be made in a collateral proceeding.

13. Vendor and Purchaser--Purchaser Relying on Record Title Put Upon Inquiry by Matters in Record.

A purchaser of lands, who buys in reliance upon the record title, is chargeable with all the notice brought to him by the records; and if the record contains matters that would put a person of ordinary prudence upon inquiry into the nature of the title of the grantor, or of the rights and equities of another owner, then the law charges such purchaser with all the knowledge an inquiry upon his part, prosecuted with reasonable diligence, would have brought home to him.

14. Estoppel--Essential Element That Party Was Misled to His Injury by Other Party.

An essential element of estoppel is that the party invoking it must have been misled to his injury by the wrongful conduct of the party against whom it is invoked.

15. Tenancy in Common--Heirs of Deceased Indian as Tenants in Common--Possession by One not Adverse to Others.

The heirs of a deceased Indian take title to the property of the decedent as tenants in common, and the possession of one of them is the possession of all. The possession of one of the heirs does not set in motion the statute of limitation as against one of the heirs not in possession.

16. Same.

The mere possession of a tenant in common, no matter how full and complete, does not operate as an ouster of his cotenant, or amount to adverse possession as against the claim of his cotenant. There must be something to show a denial or repudiation of his cotenant's rights, or the possession will be deemed to be held in subordination to the rights of the cotenant.

17. Estoppel--Owner of Land not Precluded from Asserting Title by Unauthorized Conveyance of Another.

Where a person has, without authority, undertaken to sell and convey the land of another person, the real owner of the land is not precluded by this wrongful act from asserting his title to the land.

18. Adverse Possession--Continuity Broken by Recognition of Title of Another.

If the one in possession recognizes the title of one out of possession, at any time prior to the expiration of the period provided by the statutes of limitation, the continuity of the adverse possession is broken.

19. Indians--Approval of Conveyance of...