Hayes v. Simmons

• Decision Date: 18 December 1928
• Docket Number: Case Number: 18417
• Parties: HAYES v. SIMMONS et al.
• Court: Oklahoma Supreme Court

1928 OK 734

277 P. 213

136 Okla. 206

HAYES v. SIMMONS et al.

Case Number: 18417

Supreme Court of Oklahoma

Decided: December 18, 1928

Syllabus

¶0 1. Divorce--Marriage--Indian Tribal Marriages and Divorces--Recognition of Validity.

A marriage contracted between members of an Indian tribe, in accordance with the customs of such tribe, where the tribal relations and government existed at the time of such marriage, and there was no federal statute rendering the tribal custom invalid, will be recognized by the courts as a regular and valid marriage for all purposes. And the same effect is also given to the dissolution of marriages, under the customs of the tribe, as is given to the marriage relation itself. ( Unussee v. McKinney, 133 Okla. 40, 270 P. 1096.)

2. Wills--Petitioners for Probate of Will 15 Years After Death of Testator and Ten Years After Distribution of Estate Held Guilty of Laches and not Entitled to Have Will Probated.

William Grayson, in 1911, filed an instrument purporting to be the last will of Hilly Bear, deceased. The judgment of the district court denying the application to admit the will to probate became final. The estate of Hilly Bear was thereafter distributed to Marchie Hayes as her sole heir. He and those claiming under him have been in possession of the estate since the distribution. The petitioners in the instant case or those under whom they claim, were present and testified in the Grayson case and at that time knew of the alleged will in the instant case. They failed to make application to have it probated and have kept silent as to its existence until the instant case was filed in June, 1926, some 15 years after the death of Hilly Bear. Held, the petitioners and those under whom they claim are guilty of laches and the will cannot now be probated.

Error from District Court, Tulsa County; E. A. Summers, Judge.

Application by Nancy Simmons and others to have probated the will of Hilly Bear; Marchie Hayes, protesting. On appeal from county court, the will was, by judgment of district court, admitted to probate, and protestant brings error. Reversed, with directions.

Frank P. Smith, Miller & Stephenson, and Burford, Miley, Hoffman & Burford, for plaintiff in error.

Carroll, Jameson & Severson, Holt & Kopplin, and Newton & Pinson, for defendants in error.

HEFNER, J.

¶1 A proceeding was brought in the county court of Tulsa county to probate the will and testament of Hilly Bear, deceased. The county court denied the application to probate the will, and an appeal was taken to the district court of Tulsa county, and that court admitted the will to probate. Marchie Hayes, contestant and plaintiff in error, has brought the case here for review.

¶2 It is admitted that Hilly Bear was a full-blood Creek Indian and died in the summer of 1911 seized and possessed of the allotment of land made to her as a Creek citizen. The alleged will was not offered for probate until June 16, 1926, nearly 15 years after the death of Hilly Bear.

¶3 Her estate was administered in the county court of Tulsa county; a final decree of distribution was entered in that court in 1915 in which is was determined that Hilly Bear died leaving surviving her no issue nor children of issue, and no father nor mother, nor brother nor sister, but left surviving her husband, Marchie Hayes, the plaintiff in error herein, who was found to be her sole and only heir.

¶4 The devisees and legatees under the alleged will, or their representatives, were all parties to the decree of distribution and appeared upon the hearing of the petition for a decree of distribution of the estate either in person or by their representatives.

¶5 The proponents of the alleged will are the heirs of the devisees and legatees who were parties to the proceedings and decree of distribution. Since the distribution of the estate, various persons have acquired interests in the land allotted to Hilly Bear from Marchie Hayes, who had been declared the husband and sole heir of Hilly Bear by the county court.

¶6 The attempt to probate the alleged will was contested by Marchie Hayes on several grounds. The will undertakes to devise the allotment of Hilly Bear. In his protest Marchie Hayes alleged that he was the surviving husband of Hilly Bear and the alleged will was invalid because it disinherited him and it was not acknowledged before and approved by the proper officer designated by the provisions of section 23, of the act of Congress of April 26, 1906, as amended.

¶7 The trial court found as a matter of fact, and the evidence clearly so shows, that Marchie Hayes was living with Sah-ta-quan-ney as her husband by custom marriage up to the year 1900 or 1901, and that no divorce was ever granted to Marchie Hayes from this woman by any of the courts authorized to grant divorces. In 1901, Marchie Hayes and his wife separated under what is known as a Creek custom divorce. The record discloses that Marchie Hayes and Hilly Bear contracted a ceremonial marriage before a minister of the gospel on December 12, 1905, pursuant to a license regularly issued on December 9, 1905.

¶8 In this connection a portion of the findings of the trial court is as follows:

"If the Creek custom divorce and the Creek laws were not abolished by the Act of June 7, 1897, and the provisions referred to, they were undoubtedly abolished by section 26 of the Curtis Bill, which provided that after the passage and approval of that act, the laws of the various Indian Nations should not he enforced, and further by section 28 of that act, which provided that on and after October 1, 1898, all tribal courts should be abolished. Under these acts of Congress the court is of the opinion and holds that the Creek custom divorce was abolished on January 1, 1898, and if not on that date, from and after passage and approval of the Curtis Bill, which was at least two years before the separation of Marchie Hayes and his custom wife, Sah-ta-quan-ney. That being true and no divorce being had, the marriage of Marchie Hayes to Hilly Bear was, as a matter of law (though not by intent on the part of Marchie Hayes), bigamous and void. The court is of the opinion and holds and adjudges under this state of facts that Marchie Hayes has no standing in this court or in this case and no rights in the estate of Hilly Bear, either by inheritance or by the decree of distribution in case No. 1058, and therefore no right to raise the question of disinheritance of a surviving spouse or the failure of the will to be acknowledged and approved by any proper approving federal agency--and the court further finds and holds that the deceased, Hilly Bear, left no surviving legal spouse, at all--and to this finding and holding and judgment of the court, the contestant, Marchie Hayes, excepts."

¶9 It is now contended that the ceremonial marriage of Hilly Bear and Marchie Hayes solemnized in 1905, and recognized by all parties for about 20 years, is invalid because at the time of the marriage Marchie Hayes was the lawful husband of Sah-ta-quan-ney. The evidence clearly shows that the separation of Marchie Hayes from his first wife constituted a valid divorce under the Creek tribal custom. The trial court, however, held that the Creek custom divorce was abolished by the Curtis Bill, effective on October 1, 1898.

¶10 This question has been recently before this court in the case of Unussee v. McKinney, 133 Okla. 40, 270 P. 1096. In that case Mistaley Chupco, a full-blood Creek Indian, was the allottee of, and died the owner of, the land involved in that suit. He and Nicey Unussee began living together as husband and wife in 1899. In 1902 or 1903, they voluntarily separated, and in 1903 or 1904 Nicey and Barnosee Unussee began living together as husband and wife. They reared a family of four children, and were still living together as husband and wife during the progress of the litigation....