Estate of Sims v. Sims
| Decision Date | 18 October 1927 |
| Docket Number | Case Number: 17430 |
| Citation | 129 Okla. 155,265 P. 1064,1927 OK 362 |
| Parties | In re ESTATE of WILLIS Sims v. Sims |
| Court | Oklahoma Supreme Court |
¶0 1. Appeal and Error--Conclusiveness of Findings of Fact Proof as to Foreign Marriage Law.
Where the pleadings allege the law as to marriage in effect at a certain date in a foreign jurisdiction, the character of evidence required by the Oklahoma statute must be adduced to sustain such an allegation. Where it is so adduced and the trial court finds as a fact that the allegations are true, this court will not disturb same.
2. Bastards--Construction of Legitimation Statute--Heirship--Necessity for Proof that Claimant was "Issue of Marriage Null in Law."
Section 11303, C. O. S. 1921, is for the protection of off-spring "of a marriage contracted and consummated in accordance with the forms of the law," and which marriage for some reason is void. Neither by express language nor intendment does the statute undertake to give such an alleged marriage the status of "actual wedlock," nor to clothe a child born to a woman who had entered into such void relation with the presumption given a child born during the existence of a legal marriage. When it appears that such alleged marriage is void, it must be shown by him who claims the protection of that statute that he was born "of such marriage," and the law of probable access to the mother, controlling in cases of actual legal wedlock, has no application. A judgment which shows that it rested on such presumption and probable access will not be sustained by this court.
3. Marriage--Legality of Marriage Negatived by Final Judgment Finding Former Marriage Still in Force.
A judgment in an heirship proceeding which finds that W. and F. married, the record showing such marriage in 1903, and further finds that it was dissolved by a valid decree of divorce in 1924, which carried an enforceable judgment as alimony, and the record showing error was prosecuted to this court by W. to reverse said decree, where it was pending when W. died in 1925, and no alleged error is prosecuted to review that part of the judgment and finding in the heirship proceeding, fixed a marital status upon W. which precluded his legal marriage to M. D. thereafter in 1924, although W. and M. D. did go through the form of a ceremonial marriage.
Hatchett & Semple, for plaintiff in error.
Sigler & Jackson, J. A. Bass and Ledbetter & Ledbetter, for defendant in error Mattie Willis.
G. E. Wilson, F. M. Adams, T. B. Orr, and Lila C. Franklin, for defendant in error Lonie Scott.
Ogden & Spaulding, for defendant in error Oney Willis.
¶1 This is a proceeding to determine heirship and permissible as to Indians by reason of the Act of Congress of June 14, 1918 (40 Stat. L. 606). The decedent was Hickman Willis, full-blood Indian, enrolled citizen of the Choctaw Tribe. He belonged to that class of enrolled citizens known as Mississippi Choctaws. He received an allotment of land under and by reason of the Acts of Congress (June 28, 1898, 30 Stat. L. 495; July 1, 1902, 32 Stat. 641). His estate was all but solely or solely revenues arising from the production of oil on the allotment. On appeal from the county court, the district court of Carter county adjudged several of the claimants to be entitled to take under the succession statutes of the state. The claimants were Lonie Scott, and alleged child; Lilly Tubby, an alleged wife; Filliah Jim, an alleged wife; Lodie Willis, and Oney Willis, alleged children, and Mattie Willis (or Dial) an alleged wife.
¶2 Error is prosecuted here solely by Lodie Willis.
¶3 The district court found against Lilly Tubby. As to her the judgment is therefore final.
¶4 The district court found that:
"Hickman Willis came to the Indian Territory * * * and was married to Filliah Jim; * * * that the marriage to Filliah Jim was under the Choctaw custom, and by members of the Choctaw Nation was considered a legal marriage, and that after said marriage the said Hickman Willis lived with and cohabited with the Filliah Jim, and held the said Filliah Jim out to the world as his wife, and that Hickman Willis and the said Filliah Jim were in fact husband and wife; * * * that Hickman Willis was by the district court of Love county divorced from Filliah Jim, and there was awarded to the said Filliah Jim the sum of ten thousand ($ 10,000) dollars, as alimony against Hickman Willis; * * * that Filliah Jim is entitled to receive the $ 10,000 awarded as alimony by virtue of the decree of divorce rendered in 1924."
¶5 The appeal from the judgment granting Filliah Jim a divorce was pending at the time of Hickman''s death in 1925. The record discloses that on the 8th day of August, 1911, Hickman Willis, the decedent after securing a marriage license in Marshall county, Okla., went through a ceremonial marriage with one Marceline. Marceline prosecuted a suit for and secured a divorce from the decedent in 1923. Lodie, the plaintiff in error, adjudged by the district court to be a child and heir at law of the decedent, was born to the said deceased and the said Marceline, as the issue of said ceremonial marriage, prior to 1914. In 1914, the deceased, convicted of murder, was sentenced to the state penitentiary at McAlester, Okla., from which he was not released until 1922. During that time the alleged child, Oney, was born to the said Marceline.
¶6 In 1924, the said Hickman Willis secured a marriage license in Carter county and a ceremonial marriage was performed between him and Mattie Dial. At that time the appeal from the judgment granting Filliah Jim a divorce and $ 10,000 alimony was pending in this court. Mattie Willis (or Dial) files no petition in error here to review this part of the judgment.
¶7 No assignment of error is made against the part of the judgment finding plaintiff in error an heir. As to her, it is a finality.
¶8 Lodie, however, assigns error against Oney, Lonie Scott, and Mattie Willis (or Dial). The disposition of these assignments ends this lawsuit.
¶9 The plaintiff in error, in her brief (page 82), takes no exception to the finding that Filliah Jim and Hickman Willis were married; the only contention is that the judgment of $ 10,000 alimony should not have been adjudged a lien against his estate.
¶10 The record fails to disclose whether Hickman Willis was possessed of any property other than that restricted by the acts of the national Congress, the disposition of which must be with the approval of the Secretary of the Interior. If he had such other estate, such a judgment could properly be made a lien thereon. The state law cannot fix a lien which is effective to enforce any alleged rights against property subject to the control of the Department of the Interior under restrictions imposed by the national Congress as to full-blood Indians, unless the efforts of the court to administer what they believe to be justice is approved by the Department.
¶11 The record shows that the continuous legal residence of Hickman Willis was in Carter county, Okla. He brought a suit for divorce in 1911 against Filliah Jim, which he subsequently dismissed. She brought a suit against him, secured a decree of divorce and alimony in the sum of $ 10,000. There was nothing interposed in that suit, defensive or otherwise, that he had ever been divorced from her prior to that time. The suit he brought in 1911 for divorce against her was an admission of the existence of a marital relation. The decree rendered in favor of Filliah in the suit brought by her for divorce, from which he appealed to this court, and a judgment entered thereon that they were husband and wife at the time the decree was entered, had become a finality, the appeal abating on the death of Hickman Willis. In the instant case the district court finds that Filliah and Hickman were husband and wife. No error as to this finding in the instant case to prosecuted here. So we are confronted with two judgments--one in the divorce suit brought by Filliah, finding that she and Hickman were husband and wife. The record herein discloses that that relation had existed since about 1903. Also a judgment in the instant case finds that they were legally married and were husband and wife. These judgments, which were matters of record in the district court of Carter county and Love county, strike down the strong presumption raised by the law to support the marriage of Hickman and Mattie The judgment of the trial court finding that she was his lawful wife at the time of his death is a conclusion not justified by the record. The alleged marriage to Mattie is clearly shown to have been consummated at a time when Hickman Willis was a married man. The judgement as to Mattie is reversed, set aside, and held for naught.
¶12 The judgment of the trial court finds Lonie Scott to be a child and one of the heirs. We do not feel justified in sustaining the error assigned against her.
¶13 As stated, supra, Hickman was a Mississippi Choctaw Indian. The record is not in dispute that in the year 1900, in an Indian community in Neshoba county, Miss., Hickman and one Lilly, in this record designated as Lilly Tubby, went through the form of exchange of marital consent, prevalent among the members of said tribe; that thereafter they lived together in said community until Hickman was convicted of crime and sent to the Mississippi penitentiary; that at the time he was sent to the penitentiary he was known as the husband of Lilly, and Lonie Scott was born a few weeks after Hickman was confined in the Mississippi penitentiary. It is vigorously urged that at best this so-called interchange of marital consent, under the law of the state of Mississippi, which is pleaded, would constitute only a marriage, if at all, as known at common law, and it is insisted that between the years 1892 and 1906, the so-called common-law marriage, which had by the Supreme Court of Mississippi been recognized as existing in that state prior to 1992,...
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