Homer v. McCurtain

• Decision Date: 13 January 1914
• Citation: 138 P. 807,40 Okla. 406,1914 OK 17
• Parties: HOMER ET AL. v. MCCURTAIN.
• Court: Oklahoma Supreme Court

138 P. 807

40 Okla. 406, 1914 OK 17

HOMER ET AL. v. MCCURTAIN.

Supreme Court of Oklahoma

January 13, 1914

Rehearing Denied Feb. 17, 1914.

Syllabus by the Court.

Whether the will of a full-blood Indian who disinherits her spouse is acknowledged by a judge of the United States Court, or United States commissioner, or a judge of the county court, pursuant to Act Cong. April 26, 1906, c. 1876, § 23, 34 Stat. 145, is a question which involves the due execution and attestation of the will, over which the county court has jurisdiction in the contest proceeding provided for by section 5157, Comp Laws Okl. 1909, after the will is presented for probate and the decision of that court upon that question, unless appealed from, is final and is not subject to collateral attack in a suit in partition filed by the spouse, wherein it is alleged that the will is void as to him on account of noncompliance with the federal statute in that respect.

Error from District Court, Bryan County; A. H. Ferguson, Judge.

Action by Joshua McCurtain against Aaron H. Homer and others. Judgment for plaintiff, and defendants bring error. Reversed and remanded.

J. M Humphreys, of Atoka, for plaintiffs in error.

McPherren & Cochran and Chas. P. Abbott, all of Durant, for defendant in error.

KANE J.

This was a suit, commenced by the defendant in error, plaintiff below, against the plaintiffs in error, defendants below, for the purpose of partitioning certain real estate. The plaintiff claimed to be the owner of an undivided one half interest in a certain tract of land by inheritance from his deceased wife, Zerena McCurtain, and that the defendants, who were also heirs of the deceased wife were entitled to the other undivided half. The defendants, by way of answer alleged in substance that said Zerena McCurtain had, prior to her death, by her last will and testament, bequeathed to said plaintiff the sum of $1, and no more, and that by said last will and testament she bequeathed the balance of her property, including the land in controversy, to the defendants; that said will was duly made and executed on the 10th day of July, 1906, and on the 30th day of August, 1908 said Zerena McCurtain died; that on the 7th day of November, 1908, said will was probated by the county court of Atoka county, the county wherein said land was situated; that said plaintiff appeared in said court for the purpose of contesting said will and filed therein his contest, which said contest was by the court dismissed and said will admitted to probate and declared to be a valid and subsisting will; and that said last will and testament was ordered to be recorded and declared to pass both real and personal estate of said decedent, Zerena McCurtain; that said plaintiff did not appeal from said judgment of said county court, and that afterwards the estate of said Zerena McCurtain, deceased, was distributed by said probate court, pursuant to the terms of said will; that said plaintiff ought not to be permitted to say that said premises, or any part thereof, belong to him for the reason that he appeared and contested said will, and that said judgment was given against him in the county court of Atoka county; that he did not appeal therefrom, and said judgment, therefore, is a valid and subsisting judgment on the records in the county court of said county, and that said judgment was duly given on the merits of said case and duly considered in favor of the defendants. Thereafter a general demurrer was sustained to the answer of the defendants, and, declining to plead further, judgment was rendered against them, as prayed for by plaintiff, to reverse which this proceeding in error was commenced.

The proceeding is clearly a collateral attack upon the proceedings of the county court in relation to the will, and in our judgment, it was error to sustain the demurrer to the answer setting up an estoppel. Counsel for defendant in error state the propositions of law involved as follows: "There is no question of fact involved in this appeal and but one question of law. The question of law is: Was the order of the county court of Atoka county, Okl., admitting the will to probate over the protest of the plaintiff, an adjudication of the question as to whether or not the said Zerena McCurtain had, by the provisions of the said will, so devised her said real estate as to disinherit the plaintiff, contrary to the Act of Congress of April 26, 1906 (34 Stat. 145, c. 1876, § 23), which provided that: 'Every person of lawful age and sound mind may, by last will and testament, devise and bequeath all his estate, real and personal, and all interest therein, provided that no will of a full-blood Indian, devising real estate, shall be valid, if said last will and testament disinherits the parents, wife, spouse or children of such full-blood Indian, unless acknowledged before and approved by a judge of the United States Court for the Indian...