Hanson v. Hoffman, 2011.

• Citation: 113 F.2d 780
• Decision Date: 13 July 1940
• Docket Number: No. 2011.,2011.
• Parties: HANSON v. HOFFMAN et al.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

113 F.2d 780 (1940)

HANSON v. HOFFMAN et al.

No. 2011.

Circuit Court of Appeals, Tenth Circuit.

May 24, 1940.

Rehearing Denied July 13, 1940.

COPYRIGHT MATERIAL OMITTED

Dick Rice, of Miami, Okl., for appellant.

Vern E. Thompson, of Joplin, Mo. (Loyd E. Roberts and Thompson & Roberts, all of Joplin, Mo., and Byron B. Hoffman, of Miami, Okl., on the brief), for appellees.

Before PHILLIPS, BRATTON, and WILLIAMS, Circuit Judges.

PHILLIPS, Circuit Judge.

Lilia Quapaw Hanson brought this suit against Agnes Quapaw Hoffman, Jean Ann Quapaw Hoffman, an infant, Henry E. Hoffman, as guardian of Jean Ann Quapaw Hoffman, and Henry E. Hoffman, individually. The defendants filed a motion to dismiss the suit. The trial court held that it was without jurisdiction over the subject matter, that there was an absence of indispensable parties defendant, and that the complaint failed to state a claim upon which relief could be granted against Hoffman individually, and entered its decree dismissing the suit. Lilia has appealed.

The complaint is involved and prolix. Interspersed therein are many statements of evidentiary facts as distinguished from ultimate facts, and many conclusions of law. We shall undertake to gather from the complaint, and state as we understand them, the ultimate facts upon which Lilia predicates her prayer for relief.

Each party to the action is a citizen of the state of Oklahoma. Lilia is a resident of the Eastern District of Oklahoma. The defendants are residents of Ottawa County, Oklahoma, in the Northern District of Oklahoma.

Benjamin Quapaw was a full-blood Quapaw Indian. About 1870 he married Lizzie Perryman, a Creek woman. Lilia was born about 1874, the lawful issue of that marriage. Four or five years later, Benjamin was divorced from Lizzie in accordance with Creek custom. Lizzie, in accordance with that custom, retained custody of Lilia. Thereafter, Benjamin married See-sah. Benjamin and See-sah each received Quapaw allotments and they inherited another Quapaw allotment from their deceased daughter, Hum-bah-wat-tah. In 1915, pursuant to the Act of June 7, 1897, 30 Stat. 62, 72, they entered into mining leases on their allotments and during the years 1915, 1916, and 1917, the lessee discovered and developed rich deposits of lead and zinc ore therein. From royalties reserved under such leases, they received the sum of $179,084. $172,710.94 thereof was deposited in the names of Benjamin and See-sah in the Baxter National Bank, at Baxter Springs, Kansas.

On May 2, 1917, Benjamin purchased with such funds a tract of land in Ottawa County, Oklahoma, referred to in the complaint as parcel No. 1. On February 12, 1917, March 19, 1917, and April 18, 1917, respectively, Benjamin purchased with such funds certain lots in Baxter Springs, Kansas. These lots are referred to in the complaint as parcel No. 2. He took deeds of conveyance for parcels 1 and 2 in his own name.

Between March, 1915, and December 31, 1917, Benjamin purchased with such funds certain other lots in Baxter Springs, Kansas. These are referred to in the complaint as parcel No. 3. The deeds of conveyance therefor were taken in the name of Charles Goodeagle.

On December 31, 1917, pursuant to the Act of Congress of June 7, 1897, § 1, 30 Stat. 62, 72, the Secretary of the Interior declared Benjamin and See-sah incompetent.

In 1919 a suit was commenced by the United States in behalf of Benjamin and See-sah against Walter T. Apple, Charles Goodeagle, and others to recover certain real estate and funds of Benjamin and See-sah. See United States v. Apple, D.C. Kan., 262 F. 200, and United States v. Apple, 8 Cir., 292 F. 935. Certain compromises and adjustments were entered into between the United States and certain of the defendants. See 292 F. 936.

On May 6, 1918, Charles Goodeagle executed and delivered a deed conveying to Franklin K. Lane, as Secretary of the Interior, and his successors in office, in trust for Benjamin and See-sah, the lands embraced in parcel No. 3. The deed contained the following provision:

"It being the intent and purpose of this deed that in the event of the death of either the said Benjamin Quapaw or See-sah Quapaw, the survivor of them shall, subject to the trust herein declared, succeed to the sole beneficial interest in said lands."

On October 6, 1920, Francis Goodeagle by deed, conveyed to John Barton Payne, Secretary of the Interior, in trust for Benjamin, certain lots in Baxter Springs, Kansas, referred to in the complaint as parcel No. 4.

On June 10, 1918, John I. Cooper held the legal title to a certain lot in Baxter Springs, Kansas, in trust for Benjamin, and on that date, conveyed the same to Franklin K. Lane, Secretary of the Interior, in trust for Benjamin and See-sah. It is referred to in the complaint as parcel No. 5. The deed contained a provision for survivorship substantially like the provision above quoted from the deed of May 6, 1918.

The Secretary of the Interior did not release the funds with which Benjamin acquired parcels numbered 1, 2, 3, 4, and 5 upon condition that a clause imposing restrictions on alienation be inserted in the deeds conveying such land to Benjamin or to others for his benefit.

See-sah died intestate in Ottawa County, Oklahoma, in the year 1920, leaving surviving as her sole heir at law Benjamin.¹

On January 4, 1921, Agnes went through a pretended civil marriage ceremony with Benjamin at Columbus, Cherokee County, Kansas, and because thereof claims to be the widow and heir at law of Benjamin. At the time of such pretended marriage, Agnes was a prepossessing Indian maiden about 20 years of age; she was educated and intelligent, and could speak both Quapaw and English; Benjamin was past 70 years of age, was infirm, and illiterate; he could not read, speak, nor understand the English language; he was mentally incapable of understanding or consenting to a marriage ceremony with Agnes, and did not understand, comprehend, nor consent to the marriage.

Section 23 — 120, R.S.Kan.1923, prohibits marriage by an imbecile or feeble-minded person to a woman under 45 years of age.

Prior to such marriage Benjamin had been declared incompetent by the Secretary of the Interior and incompetent in fact under the laws of Oklahoma by the county court of Ottawa County, Oklahoma, and at the time of such marriage had a regularly appointed, qualified, and acting guardian, both of his person and estate.

At the time of the death of See-sah, Mes-kah-tun-ka, mother of Agnes, saw Benjamin weeping and told him in Quapaw "Not to weep or take the death so hard for he could have her daughter, Agnes." Thereupon, Agnes devised a plan or scheme to acquire Benjamin's wealth and deprive Lilia thereof by a pretext of a lawful marriage with Benjamin. In furtherance of such scheme, on January 4, 1921, in Ottawa County, Oklahoma, Agnes and her mother and the latter's husband, Buck Slagle, a white man, inveigled Benjamin to accompany them by automobile to Columbus, Cherokee County, Kansas. On their arrival in Columbus, Agnes and the other members of the party took Benjamin to the court house. Agnes applied for a license to marry Benjamin. Agnes filled out the application for the license, stating under oath that her age was 23 years and Benjamin's was 43 years. Thereupon, the probate judge issued the marriage license to Agnes. The party then went to an adjoining room and Agnes ordered Benjamin to take his place by her side in front of the probate judge, who conducted a pretended ceremony in the English language, which Benjamin did not understand and could not comprehend.

On October 28, 1924, Benjamin pretending to act under the Act of February 14, 1913, 37 Stat. 678, 25 U.S.C.A. § 373, and regulations adopted and approved by the Secretary of the Interior on June 19, 1923, executed a pretended will by thumb print, bequeathing and devising all his estate, real, personal, and mixed, to his wife, Agnes, and his daughter, Jean. Victor Griffin was the chief of the Quapaws; he married a sister of Agnes; he was educated in English schools and was mentally and physically strong and alert; he lived on the Quapaw Reservation and was a neighbor and had the confidence of Benjamin. On the morning of October 28, 1924, Agnes, in furtherance of her scheme to acquire Benjamin's wealth, drove to the home of Griffin and informed him that Benjamin wanted him to come to town to act as interpreter for his will; in the forenoon of October 28, 1924, Griffin met Agnes and Benjamin on the street in Miami; Griffin importuned, solicited, and directed Benjamin to convey all his property and estate by will to Agnes and Jean; Griffin stated to Benjamin that a man had told him Lilia and Lizzie Perryman were dead, and directed him to make his wife and child, meaning Agnes and Jean, the beneficiaries under the will. Benjamin, Agnes, and Griffin then went to a lawyer's office in Miami for the purpose of preparing the pretended will. Griffin and Agnes furnished the lawyer with the information and dictated the terms and provisions of the pretended will. Benjamin was of a confiding and yielding disposition and succumbed to the importunities, solicitations, and demands of Griffin and Agnes. Benjamin was mentally incapable of understanding or comprehending the nature and extent of his property. The will was not interpreted into the Quapaw language, and Benjamin did not understand nor comprehend it.

Section 33 of the regulations of June 19, 1923, provides that the will of an Indian shall set forth the name, age, residence, and tribe of the Indian, the names, ages, and relationship of the devisees, a specific description of the trust or restricted lands disposed of, and a sufficient description of the personal property bequeathed, to enable the Indian office to identify it. The pretended will did not meet the foregoing requirements of the regulations.

Benjamin died on May 28, 1926. At the time of his death he was a resident of Ottawa County,...