Estate of Margerate Arline Glenn, 50 IBIA 5 (2009)

INTERIOR BOARD OF INDIAN APPEALS Estate of Margerate Arline Glenn 50 IBIA 5 (07/06/2009)

United States Department of the Interior

OFFICE OF HEARINGS AND APPEALS INTERIOR BOARD OF INDIAN APPEALS 801 NORTH QUINCY STREET SUITE 300 ARLINGTON, VA 22203

ESTATE OF MARGERATE ARLINE GLENN

Order Affirming Denial of Administrative Costs and Denial of Rehearing; But Setting Aside Decree and Remanding Docket No. IBIA 07-97 July 6, 2009

Roberta Two Elk (Appellant or Roberta) appeals to the Board of Indian Appeals (Board) from two orders entered February 22, 2007,1 by Administrative Law Judge Marcel S. Greenia (ALJ or Judge Greenia), in the Estate of Margerate Arline Glenn (Decedent), Deceased Oglala Sioux Indian, Probate No. P000003622IP. In one order, Judge Greenia denied Appellant's Petition for Rehearing from an Order Determining Heirs, Approving Will, and Decree of Distribution, dated September 20, 2006 (2006 Decree), which distributed Decedent's trust assets in equal 1/4 shares to the four lineal descendants of Decedent's youngest child, Susie Rose Glenn, pursuant to Decedent's will.2 In her Petition for Rehearing, Appellant had sought to overturn the approval of the will on grounds that it had been revoked by the Decedent. In denying rehearing, the ALJ concluded that Appellant had not justified her failure to submit, at the probate hearing, information in support of her assertion that Decedent had revoked her will. Judge Greenia's second order denied a "Petition for Allowance of Claim," in which Appellant sought recovery of administrative expenses she "paid to manage this case $6,680.00," on the grounds that her request was untimely. We affirm Judge Greenia's Order Denying Costs on other grounds, to clarify that it was neither a Petition to Reopen under 43 C.F.R. § 4.242,3 nor a creditor Both orders were erroneously styled as Orders Denying Petition for Reopening. One order was in substance a denial of a petition for rehearing and the other was a denial of a motion for administrative costs. We refer to them herein as an Order Denying Rehearing and an Order Denying Costs.

2 1

Omitted interests were added in an Administrative Modification on December 5, 2006.

The Department's probate regulations were amended in 2008 to incorporate the provisions of the American Indian Probate Reform Act of 2004, 25 U.S.C. § 2201, et seq. (continued...) 50 IBIA 53

Judge Greenia conducted the hearing on March 24, 2006. Only Roberta appeared. Judge Greenia and Roberta began by addressing facts regarding Decedent and family members. Transcript of Hearing (Tr.) at 3. Roberta proffered to the ALJ a set of papers which included family documents such as certificates of birth, death, marriage and divorce. Id. at 24. In addition to her letter objections to the Will, Judge Greenia accepted four sets of documents, which he identified as Exhibit X.10 At the hearing, Roberta sought to discount the relevance of any beneficiaries identified in the Will. She objected to the validity of Richard's birth certificate, which Judge Greenia found in the probate file. Roberta asked to "make a formal challenge to" the official birth certificate, and asserted that "this just, this isn't a fact." Tr. at 8-11. She claimed that her searches for information about Richard had been unproductive. She denied the existence of Richard's alleged twin sons. Id. at 20, 23. Roberta contended that Susie Rose "turned over custody . . . to Social Services" of her children, apparently in an attempt to question whether they could be considered heirs or beneficiaries. Tr. at 22, 27. She claimed that the "children were not in [Susie Rose's] custody when she died . . . ," and asserted that she had "found no proof" that Susie Rose had ever married the children's father, Myron Plenty Wolf. Id. at 22.11 In addition to her challenges or questions concerning Decedent's potential heirs or beneficiaries, Roberta also served on Judge Greenia her March 22 written request that he invalidate the Will and declare Decedent to have died intestate. Tr. at 14. Roberta repeated her challenge to the validity of the Will and claimed that it must be disregarded because the scrivener and witnesses are dead. Id. The ALJ responded to each of the nine points listed in that document, noting for example that the Office of Hearing Examiner was abolished and that it was up to the judge in charge of the probate proceeding to approve a will. Id. He explained that no property inventories were required on the face of the Will, given that it devised all of Decedent's property interests. Id. at 15.10

ROBERTA TWO ELK: But everyone else, all her nine sisters and brothers are all gone, all except for this one [Pearl Pourier, whom Roberta was unable to reach], everybody's gone. So this is why I cannot specify that one day. JUDGE GREENIA: Or, you know, the week, the month, somewhere in that approximate time frame. You know. I want to explain to you that, to invalidate a Will that was properly executed, and this appears to be prepared by the BIA, notarized, witnessed, in proper form, that it's really your burden of proof. ROBERTA TWO ELK: Alright sir, let me point out that mental illness is not just one day. There are different categories, and it's progressive, and it's like any other illness, like cancer, a little bit, and then it gets worse, and that sort of a thing. Mental illness is not just one day, one psychotic episode between 9 and 4. JUDGE GREENIA: Okay. ROBERTA TWO ELK: That's not the way mental illness goes. JUDGE GREENIA: But I need . . . right, but just like cancer, or mental illness, it has to be existing on a certain day. Either it existed . . . ROBERTA TWO ELK: Well I can . . . JUDGE GREENIA: . . . or it didn't exist. ROBERTA TWO ELK: Okay I can swear to two things. One, again we're going back to when I was about 3 years old, her mother, her stepmother . . . . JUDGE GREENIA: You know I'd let you continue, but again . . . ROBERTA TWO ELK: . . . beat her in the head, so she had closed head injuries. She was unconscious for three days, while I sat at her feet eating raw potatoes off the floor, because she was unconscious. JUDGE GREENIA: Okay. ROBERTA TWO ELK: Clearly, with my medical profession, there was a post head injury, and her father died of diabetes, and probably she was undiagnosed childhood diabetes. Because I'm diabetic now. 50 IBIA 12

.... JUDGE GREENIA: I just want to make you aware of what evidence I need, in order to find what you are claiming. That's all I'm trying to do, is, in a sense I'm trying to help you. Because generalities, vague opinions, hearsays, that are uncorroborated, really are not evidence, and so, you know, I don't want you to find out in a decision that, well what you said about when you were two years old really doesn't matter. It's not material. That's why I'm trying . . . ROBERTA TWO ELK: Okay, well then let me ask you this, if I need to prove that she was stable or not stable on that day, can you prove that she was stable when both . . . their witnesses are passed away. JUDGE GREENIA: . . . it's not my burden. I have a Will that appears to be properly documented, and that's why they go through that documentation. Tr. at 18-20 (emphasis added). Judge Greenia advised Roberta that he would address her objections in his decision. Id. at 20. In his 2006 Decree, Judge Greenia approved Decedent's Will and rejected Roberta's efforts to have it invalidated. Judge Greenia explained that the Second Clause leaving all property to Susie Rose could not be effectuated because she had predeceased Decedent. He explained that the devise in the Third Clause to Richard Jeffrey Glenn's "twin sons" must also fail because there is no record of the existence of such children, or of Decedent's adoption of them. He thus effectuated the Rest and Residue Clause devising all of the remainder of the estate to Susie Rose. Pursuant to the anti-lapse provision of 43 C.F.R. § 4.261,12 distribution of property is made to descendants of a predeceased devisee per stirpes "[w]hen an Indian testator devises or bequeaths trust property to any of his

We have explained the purpose of an anti-lapse provision as follows: As a general rule, when a devise to a living person cannot be given effect because that person has predeceased the testator, the devise "lapses" as a matter of law and is rendered null and void. See 96 C.J.S. Wills § 1197. To prevent such a lapse, probate laws may contain "anti-lapse" provisions, which designate eligible alternative beneficiaries who may receive the devise by operation of statute. Id. Estate of Genevieve W. Pollak, 47 IBIA 147, 150 n.3 (2008). 50 IBIA 1312

To the extent Appellant claims in her Notice of Appeal that Judge Greenia erred in approving the Will because "[t]here is no Susy R. Glenn," Opening Brief at 2, and "no such person as Richard Glenn," id., she has not shown that the ALJ committed any error. The record contains birth certificates for both Richard and Susie Rose, at Exhibit H. Moreover, in the 2000 Affidavit of Family History signed by Roberta, she identified all of her siblings and half-siblings including Susie Rose and Richard. Roberta signed this document and had it notarized on April 7, 2000. In this and subsequent letters she noted the death of Susie Rose and her last communications with Richard and Duroy in the 1960s. In any event, we do not reverse Judge Greenia for his findings, which were based on evidence of record (birth certificates, Affidavits of Family History signed by Roberta and Bruce, and Bruce's letter to OHA expressly describing his moving back and forth from Louisiana with his brother Richard) regarding Richard's and Susie Rose's relationships to Decedent.27 For similar reasons, we affirm Judge Greenia's Order rejecting Roberta's evidence, submitted with her Petition for Rehearing, regarding Decedent's alleged assertions in August 1999 of her intentional destruction of the Will. The Petition documents that in August 1999 Roberta...