Hanson v. Hoffman

• Decision Date: 10 June 1939
• Docket Number: 34292.
• Citation: 150 Kan. 121,91 P.2d 31
• Parties: v. HOFFMAN et al. HANSON
• Court: Kansas Supreme Court

91 P.2d 31

150 Kan. 121

HANSON v. HOFFMAN et al.

No. 34292.

Supreme Court of Kansas

June 10, 1939

Rehearing Denied July 8, 1939.

Syllabus by the Court.

Though the Supreme Court may look to the law of a foreign testator's domicile to ascertain his intention and the sense in which the words of his will are used, an interpretation cannot be accepted which brings about a result contrary to the law of Kansas as to the devolution of title of land located in Kansas.

The fact that testator and his daughter were residents of Oklahoma did not render inapplicable the Kansas statute dealing with absent and pretermitted children with respect to land located within Kansas. Gen. St.1935, 22-243.

The rights of an Indian's child who was absent and reported dead at the time of the execution of the Indian's will were fixed by statute relating to absent or pretermitted children, and did not depend on a contest of the will, or whether the parties were residents or nonresidents. Gen.St.1935, 22-243, 22-255.

A full blood Quapaw Indian could dispose of his restricted lands by will under federal statutes if the action was approved by the Secretary of the Interior, but could dispose of his unrestricted land as any other citizen. Act Cong. June 7 1897, 30 Stat. 62; Act Cong. June 25, 1910, as amended by Act Feb. 14, 1913, 37 Stat. 678.

1. While we may look to the law of the domicile of the testator to ascertain his intention and the sense in which the words of a will are used, the rule cannot be so applied as to contravene the law of this state, where the land is situate and which controls the devolution of title on the death of the owner.

2. The rights of a child absent and reported to be dead at the time of the execution of his will by a testator are fixed by statute, do not depend on a contest of his will, or whether the parties are residents or non-residents of this state.

Appeal from District Court, Cherokee County; Vernor J. Bowersock Judge.

Action by Lilia Quapaw Hanson against Agnes Quapaw Hoffman and others to recover possession and to quiet title to a certain lot. From a judgment overruling a demurrer to the petition the defendants appeal.

Judgment affirmed.

F. W Boss and Marc. Boss, both of Columbus, Vern. E. Thompson and Loyd E. Roberts, both of Joplin, Mo., and Byron Hoffman, of Miami, Okl., for appellants.

Fred A. Walker, of Columbus, and Dick Rice, of Miami, Okl., for appellee.

ALLEN Justice.

This action was to recover possession and to quiet title to Lot 4, Block 7, Baxter Springs, Cherokee county, Kansas. The appeal is from a judgment overruling a demurrer to the petition.

The petition alleged: That Benjamin Quapaw, a full blood Quapaw Indian, died in May, 1926, a resident of Ottawa county, Oklahoma; that plaintiff is a daughter by blood of the deceased Benjamin; that the defendants Agnes Quapaw Hoffman and Jean Ann Quapaw Hoffman are devisees and legatees under his last will. The defendant, Long, is in possession of the property, and the other defendant is guardian of the minor defendant Jean Ann.

It was further alleged that Benjamin Quapaw owned allotted and allotted inherited land in Ottawa county, Oklahoma. These lands were restricted against alienation; the restrictions on alienation were removed by the Act of Congress approved June 7, 1897, 30 Stat. 62, to the extent that the allottee was empowered to lease such lands for farming and mining purposes. In 1915 Benjamin Quapaw joined by his wife See-Saw gave a mining lease on these allotted lands; that lead and zinc mines were developed thereon; that Benjamin Quapaw collected as mining royalties there from the sum of $179,084, which came into his hands unrestricted and free from governmental control; that the land here in dispute was bought and the purchase price paid out of such unrestricted royalties. The deed was made to Benjamin Quapaw and See-Saw Quapaw his wife, and the deed was duly recorded in Cherokee county. See-Saw died intestate in 1920, leaving Benjamin as her sole heir, who inherited her interest in Lot 4, Block 7, Baxter Springs, here in question.

The petition sets out the Act of Congress of June 25, 1910, 36 Stat. 856, as amended by the Act of Congress approved February 14, 1913, 37 Stat. 678, which authorized the owner of restricted land, under the regulations of the Secretary of the Interior, to dispose of such lands by will; on October 28, 1924, Benjamin Quapaw executed a will disposing of his entire estate, including restricted and unrestricted lands, to the defendants Agnes and Jean Ann. Plaintiff alleges that the pretended will is void; that under the Acts of Congress he was not authorized to dispose of his unrestricted land by will; that he was mentally incompetent to make a will and that the will was not executed according to law.

The petition alleged:

"Plaintiff alleges that at the time her father executed said will hereto attached, marked Exhibit 'B', the plaintiff was his child and her whereabouts were unknown; that she was lost to her said father; reported to be dead and was absent, and that plaintiff, his child, was not named or provided for in said will and that under the provisions of Section 22--243, Revised Statutes of Kansas 1923 which were in force and effect at the date of her father's death, her said father died intestate as provided by the Kansas Law.

"That after the date the title to said unrestricted real estate vested in Benjamin Quapaw as aforesaid, the Secretary of the Interior on December 31, 1917, declared Benjamin Quapaw incompetent by authority of the act of Congress of June 7, 1897 (30 Stats.L. 62), but prior to the said date of incompetency, to-wit; December 31, 1917, the Secretary of the Interior exercised no supervisions or control over Benjamin Quapaw or his affairs, money or property and there is not now, nor has there ever been, an Act of Congress imposing restrictions against alienation of, or empowering the Secretary of the Interior to control or exercise jurisdiction over, said unrestricted real estate purchased by Benjamin Quapaw with unrestricted money prior to December 31, 1917, as aforesaid."

It was alleged that the plaintiff as the child of Benjamin Quapaw deceased inherited the unrestricted land above described and is entitled to the immediate possession of the land, and prays that her title be quieted against defendants.

On this appeal appellant contends that our statute, G.S.1935, 22-243, relating to absent or pretermitted children has no application to a foreign will where a testator was never domiciled in Kansas. In support of this theory the case of Keith v. Eaton, 58 Kan. 732, 51 P. 271, is cited and lengthy quotations made therefrom in appellant's brief. The Keith case is said to be "a parallel case to the case at bar," and that "We see no difference at all between that case and the case at bar."

In Keith v. Eaton, it was held: "The interpretation of a foreign will, as to the meaning of words used in it, is to be ascertained by the law of the testator's domicile, unless the circumstances surrounding the testator or the language of the instrument as a whole require a different interpretation, or unless an interpretation by the law of the testator's domicile will contravene the law of the state in which it is offered for record and probate."

The rule there announced that the meaning of words in a foreign will devising land in Kansas is, in the absence of controlling circumstances to the contrary, determined in accordance with usage at the domicile of the testator at the time when the will was made is merely a rule of interpretation. However it has not escaped criticism by the text writers. In Goodrich, Conflict of Laws, page 440, it is stated: "A conflict of authority exists concerning whether the law of the testator's domicile or the law of the situs governs the construction of a will of land. There are good reasons for referring this matter to the law of the situs of the land."

But whatever the extent of the rule as to the interpretation of a foreign will, we have held that an interpretation cannot be accepted which brings about a result contrary to the law of this state. Thus in Larned v. Larned, 98 Kan. 328, 158 P. 3, 4, it was said:

"*** The descent, alienation, or

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