Copeland v. Johnson

• Decision Date: 01 April 1924
• Docket Number: Case Number: 14163
• Citation: 224 P. 986,1924 OK 368,101 Okla. 228
• Parties: COPELAND v. JOHNSON et al.
• Court: Oklahoma Supreme Court

1924 OK 368

224 P. 986

101 Okla. 228

COPELAND v. JOHNSON et al.

Case Number: 14163

Supreme Court of Oklahoma

Decided: April 1, 1924

Syllabus

¶0 1. Indians--Wills of Full-Bloods--Approval by Courts.

By the provisions of section 23 of the act of Congress approved April 26, 1906 (34 Stat. at L. 137), as amended by section 8 of the act of Congress approved May 27, 1908 (35 Stat. at L. 312), the will of a full-blood Indian which disinherits the parent, wife, spouse or children of such full-blood Indian is invalid, unless such will is acknowledged before and approved by a judge of the United States court, a United States commissioner, or a judge of the county court of the state.

2. Same--"Disinheritance."

Disinheritance is the act by which a person deprives his heir of an inheritance, who without such act would inherit--the act by which the owner of an estate deprives a person of the right to inherit the same, who would otherwise be his heir.

3. Same--Validity of Will.

Where the will of a full-blood Chickasaw Indian devised to his wife the lands allotted to him as his homestead, and to his daughter his allotted lands exclusive of homestead, they being his sole heirs at law and the persons to whom said lands would have passed in equal shares by descent, and where said will was not acknowledged and approved in accordance with the provisions of the act of Congress approved April 26, 1906, supra, as amended by the act of Congress approved May 27, 1908, supra, held, that the validity of the will must be determined by the value of the lands devised to each at the date of the death of the testator; that if the lands were of substantially the same value at that time, the will is not invalid as disinheriting the wife and daughter, or either of them.

4. Same -- Deed by Full-Blood Devisee Without Approval of Court.

It is not essential to the validity of a deed of a full-blood Indian conveying lands devised to her by will that such deed be approved by the court having jurisdiction of the settlement of the estate of the deceased allottee, as a devisee takes under the will as an instrument of conveyance, and not by descent as an heir.

5. Same--County Court Jurisdiction.

By the provisions of section 1088, Comp. Stat. 1921, wills must be proved and letters testamentary or of administration granted in the county of which the decedent was a resident at the time of his death in whatever place he may have died, but the jurisdictional facts must be determined by the county court wherein administration proceedings are instituted, and where that court determined that it had jurisdiction and proceeded with the administration of the estate, and the approval of a conveyance by a full-blood Indian heir of the decedent followed such regular proceeding for the settlement of the estate, such court had jurisdiction to approve said conveyance, and its action in that regard cannot be attacked collaterally.

Error from District Court, Johnston County; J. H. Linebaugh, Judge.

Action by B. F. Copeland against F. M. Johnson and others. Judgment for defendants, and plaintiff brings error. Reversed and remanded, with directions.

Cornelius Hardy and Embry, Johnson & Tolbert, for plaintiff in error.

Ratliff & Ratliff, for defendants in error.

NICHOLSON, J.

¶1 This action was brought by B. F. Copeland, as plaintiff, against F. M. Johnson, Geo. E. Rider, and R. L. Davis, as defendants, to quiet the title to 199 acres of land situated in Johnston county.

¶2 The plaintiff alleged in his petition that he was the owner of the title in fee simple to and in possession of the land, and alleged facts showing that the land involved, together with other lands, was conveyed to Noel Tyubby, a member of the Chickasaw Tribe of Indians, by patent from the Choctaw and Chickasaw Nations, as his homestead; that on the 13th day of October, 1908, said Noel Tyubby died in Johnston county, leaving a will by which he devised to his wife, Leah Tyubby, his homestead, and to his daughter, Nicey Tyubby, his allotted lands exclusive of homestead; that said will was on March 12, 1909, duly admitted to probate by the county court of Johnston county, the court having jurisdiction of the settlement of the estate of the deceased allottee; that on the 29th day of July, 1912, Leah Tyubby, duly enrolled as a full-blood Chickasaw Indian, the surviving widow of said Noel Tyubby, deceased, conveyed to R. E. Anderson, by warranty deed the land involved, which deed was duly approved by the county court of Johnston county; that Anderson and wife conveyed the land to Fred E. Trotter by warranty deed; that Fred E. Trotter conveyed to John W. Tabler by warranty deed, and that on the 16th day of August, 1917, John W. Tabler conveyed the land involved to the plaintiff by warranty deed, copies of all of said conveyances being attached to said petition as exhibits.

¶3 It was further alleged that on the 9th day of July, 1920, Leah Emi-yah-tubee, formerly Leah Tyubby, the surviving widow of Noel Tyubby, joined by her husband, Arch Emi-yah-tubie, executed and delivered to the defendant F. M. Johnson a deed conveying to him the land involved, together with other lands, which deed was approved by the county court of Marshall county; that afterwards said defendant Johnson executed and delivered to the defendant Geo. E. Rider a quitclaim deed conveying said land to him.That the defendant F. M. Johnson, purporting to act as the guardian of Nicey Mose, nee Tyubby, by proceedings had in the county court of Marshall county, sold said lands, together with other lands, to the defendant R. L. Davis; that said sale was confirmed by the county court of Marshall county, and said guardian was directed to execute to said Davis a deed to said premises; that said order of confirmation was duly recorded in the office of the county clerk of Johnston county, but the guardian's deed had not been filed for record; and prayed that said conveyances to the defendants in so far as they affected the title to the land involved be canceled as clouds upon the title of said plaintiff to said land and that the title thereto be quieted in him.

¶4 The defendants filed answer, in which, after denying each and every allegation in plaintiff's petition contained, except such thereof as were expressly admitted, they admitted that the land involved was the homestead allotment of Noel Tyubby, and was conveyed to him by patent as shown by plaintiff's petition; that Noel Tyubby died on the 13th day of October, 1908; that he executed a purported will, a copy of which is attached to plaintiff's petition, and that said will was filed for probate in the county court of Johnston county and that there was a purported probation thereof; they admitted that the heirs of said Noel Tyubby were Leah Tyubby, his wife, and Nicey Tyubby, his daughter, and further admitted that all deeds set out and mentioned in plaintiff's petition were executed as alleged.

¶5 It was averred in said answer that Noel Tyubby was a full-blood Chickasaw Indian; that he was a resident of Marshall county at time of his death and that the county court of that county had jurisdiction of the settlement of his estate; that the purported will set up in plaintiff's petition was not acknowledged before, or approved by the county judge of any county in the state, or any person having authority to acknowledge or approve the will of a full-blood Indian; that said purported will attempted to disinherit his daughter, Nicey Tyubby, of all of her interest in and to the homestead allotment of the deceased, and attempted to disinherit the wife of her interest in and to the surplus allotment of the deceased; that said will was not sufficient under the law to pass title to the land involved, and was not executed in such manner as not to disinherit the wife or child of the deceased. And by cross-petition, prayed that the title to said land be quieted in the defendants.

¶6 Both parties filed motions for judgment on the pleadings. The motion of the plaintiff was denied and that of the defendants sustained, and judgment rendered for the defendants, from which the plaintiff has appealed.

¶7 The questions presented by the pleadings are: Did the will of Noel Tyubby, deceased, disinherit his wife or child, or either of them, and if so, did the deed from the surviving widow convey to R. E. Anderson an undivided one-half of the homestead allotted to the deceased?

¶8 By section 23 of the act of Congress approved April 26, 1906 (34 Stat. at L. 137), as amended by the act of Congress approved May 27, 1908 (35 Stat. at L. 312), it is provided that every person of lawful age and sound mind may, by last will and testament, devise and bequeath all of his estate, real and personal, and all interest therein, provided, that no will of a full-blood Indian devising real estate shall be valid if said last will and testament disinherits the parent, wife, spouse, or children of such full-blood Indian, unless acknowledged before and approved by a judge of the United States court, a United States commissioner, or a judge of the county court of the state.

¶9 It will be observed that no obstacle is placed in the way of a full-blood Indian disposing of his allotted lands by will. To the contrary, he is by the aforesaid act of Congress expressly authorized to devise or bequeath all of his estate, real and personal, and all interest therein. He may disinherit his parent, wife, or child, but in order to do this, the will must be acknowledged before and approved by one of the...