Gray v. McKnight
| Decision Date | 24 June 1919 |
| Docket Number | 8755. |
| Citation | 183 P. 489,75 Okla. 268,1919 OK 190 |
| Parties | GRAY et al. v. McKNIGHT et al. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Sept. 9, 1919.
Syllabus by the Court.
Under Act Cong. Feb. 28, 1891, 26 Stat. 794, c. 383, § 5 (U. S Comp. St. § 4222), providing that, for determination of descent of allotted lands, whenever a male and female Indian shall have cohabitated as husband and wife, their issue for such purpose shall be regarded as legitimate, and that every other Indian child, otherwise illegitimate, shall for that purpose be taken to be the legitimate issue of the father the illegitimate child of an allottee by an Indian woman whether born as the result of cohabitation in accordance with Indian customs or not, is entitled to inherit rights in his father's allotment as his heir.
John Nestell, a white man, by the provisions of the Kiowa, Comanche, and Apache Agreement (31 Stat. 676, c. 813) was awarded all the benefits of land and money conferred by the agreement the same as members by blood of one of said tribes. Under the agreement, after an allotment was selected and approved by the Secretary of the Interior, the title thereto was to be held in trust for the allottee for a period of 25 years in the time and manner provided by Act Feb. 8, 1887, c. 119, 24 Stat. 388, and the act amendatory thereof approved February 28, 1891 (26 Stat. 794, c. 383), and at the expiration of said period the title was to be conveyed in fee simple to the allottee, or his heirs, free from all incumbrances. The said John Nestell died in August, 1902, prior to the issuance of final patent, but subsequent to the issuance of the trust patent. The Indian Appropriation Act approved March 3, 1903 (32 Stat. 1008, c. 994), authorized and directed the Secretary of the Interior to issue a patent in fee to several designated persons, including the said John Nestell, and further provided that "all restrictions as to the sale, incumbrance, or taxation of said lands are hereby removed." On June 17, 1903, the Secretary of the Interior issued a patent to the heirs of John Nestell without naming them. Held, that said heirs took the estate by inheritance, and not by direct grant from the United States.
County courts of this state, in the exercise of their probate jurisdiction, are authorized to determine who, in fact, are the heirs of a deceased person for the purpose of distributing the estate of the decedent, except in those cases involving Indian allotments where Congress has not relinquished its supervisory control over the same or delegated such authority to said courts, and after the death of an allottee in the Kiowa, Comanche, and Apache reservation under a trust patent, and during the trust period, county courts are without jurisdiction to determine who in fact are the heirs of said decedent; but after the issuance of patent, and the removal of restrictions, and the withdrawal of federal supervision, and where the question of heirship has not been determined by the Secretary of the Interior during the trust period, the county court having jurisdiction of the administration of the estate of the deceased allottee is authorized to determine, under the state law, who in fact are the heirs of the decedent, and to distribute his estate accordingly.
A decree of distribution of a county court cannot be successfully attacked in a collateral proceeding for mere irregularities in the proceedings in the county court.
Under section 6463, Rev. Laws 1910, upon the final settlement of an account of the executor or administrator, or at any subsequent time, upon the application of the executor or administrator, or of any heir, legatee, or devisee, the court must proceed to distribute the residue of the estate of the decedent over which it is exercising jurisdiction.
It is not every kind of fraud that will vitiate a judgment in an independent proceeding, for to investigate the character of the testimony upon which a judgment was obtained would be to retry the issues submitted in the trial at which the judgment was obtained, and the result would be that there would be no end to the litigation. The fraud which will vitiate a judgment in an independent proceeding must be extraneous to the issues and such as would deprive the party of a fair opportunity to present his case. Brown et al. v. Trent et al., 36 Okl. 239, 128 P. 895.
In an action for the recovery of real property, tried to the court without a jury, the findings of the court upon disputed questions of fact will be given the same weight and effect as the verdict of a jury, and, where reasonably supported by the evidence, will not be disturbed on appeal.
Error from District Court, Caddo County; Will Linn, Judge.
Action by Sarah B. Gray, as administratrix of the estate of Mary B. Gray, deceased, and others, against L. E. McKnight and others. Judgment for defendants, and plaintiffs bring error. Affirmed.
H. E. Asp, of Oklahoma City, C. H. Carswell, of Anadarko, and Blake & Boys, of Oklahoma City, for plaintiffs in error.
A. J. Morris, of Anadarko, for defendants in error McKnight and Haskett.
This case involves the title to an allotment of land made under the Kiowa, Comanche, and Apache Agreement (31 Stat. 676, c. 813). John Nestell was a white man, and under the said agreement he, with certain other named persons, were awarded all the benefits of land and money conferred by the agreement, the same as members by blood of one said tribes. The agreement provided that, when allotments of land were selected and approved by the Secretary of the Interior, the title thereto should be held in trust for the respective allottees for a period of 25 years The act of February 8, 1887, is commonly called the General Allotment Act. John Nestell died in August, 1902, prior to the issuance of final patent, but subsequent to the issuance of the trust patent. The Indian Appropriations Act, approved March 3, 1903 (32 Stat. 1008, c. 994), authorized and directed the Secretary of the Interior to issue a patent in fee to several designated persons, including the said John Nestell, and provided that "all restrictions as to the sale, incumbrance, or taxation of said lands are hereby removed." The Allotment Act of February 8, 1887, supra, contained the following provisions:
John Nestell, at the time of his death, was possessed of certain personal property, and he left a will devising his estate to Callie Ryan. An executor was appointed by the probate court of Caddo county. Prior to the issuance of patent the executor did not claim that he had the right, nor did he attempt, to take possession of the allotment in controversy, but subsequent to the issuance of patent did for several years collect the rents therefrom. On the 21st day of May, 1907 the executor filed his final account, and an order was entered directing him to pay certain allowed claims out of the funds of the estate, and, upon filing his receipts, that he be discharged. An appeal was taken from this order, which appeal was dismissed by the district court on the 19th day of June, 1909. The case was then neglected, and no order was made transmitting it back to the county court until April 23, 1910, when the order dismissing the appeal was filed in the county court. The appearance docket of the probate court shows that on May 5, 1910, another order was entered setting a day for settlement of account and issuing notice, etc. On August 19, 1910, an order of discharge, together with a decree of distribution, was entered, distributing the estate to L. E. McKnight and F. L. Haskett, as grantees of Albert Lamar,...
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