In re Byford's Will

• Decision Date: 15 May 1917
• Docket Number: Case Number: 7289
• Parties: In re BYFORD'S WILL.
• Court: Oklahoma Supreme Court

1917 OK 237

165 P. 194

65 Okla. 159

In re BYFORD'S WILL.

Case Number: 7289

Supreme Court of Oklahoma

Decided: May 15, 1917

Syllabus

¶0 1. Wills--Contest--Validity of Execution--Construction. While, in a contest over the probate of a will, Its construction is not before the court and cannot be determined, yet the court can examine the contents of the will as an incident, where it would aid in determining the validity of its execution.

2. Same--Execution of Will of Full-Blood Indian--Acknowledgment and Approval. The due execution and attestation of the will of a full-blood Indian member of the Five Civilized Tribes, devising real estate, which disinherits a parent, wife, spouse, or children of such Indian, involves the question of whether or not such will is acknowledged and approved by a judge of the United States Court for the Indian Terri. tory, a United States Commissioner, or a judge of a county court of the state of Oklahoma pursuant to Act Cong. April 26, 1906. ch. 1876, sec. 23, 34 Stat. 145, as amended by section 8, Act Cong. May 27, 1908, ch. 199. 35 Stat. 312.

3. Same--Construction--Disinheritance. A devise by a full-blood Indian testator of his real estate, which deprives the parent, wife, spouse, or children of such testator of the estate therein to which they or any of them would succeed upon his death intestate, disinherits such parent, wife, spouse, or children, so deprived, within the provisions of Act Cong. Apr. 26, 1906, ch. 1876 sec. 23, 34 Stat. 145.

4. Same. The will of a full-blood Indian member of the Five Civilized Tribes, devising real estate, which disinherits the parent, wife, spouse, or children of such Indian, is invalid, unless acknowledged and approved in conformity with the provisions of Act Cong. April 26, 1906, ch. 1876, sec. 23, 34 Stat. 145, as amended by Act Cong. May 27, 1908. ch. 199, sec. 8, 35 Stat. 312, and therefore not entitled to probate.

W. H. Woods, United States Probate Atty., for plaintiffs in error.

Tom Wallace, for defendant in error.

RUMMONS, C.

¶1 This Is a proceeding brought by the plaintiffs in error to reverse the action of the district court of Garvin county admitting to probate the last will and testament of Ellen Byford, deceased. This cause was tried in the court below upon an agreed statement of facts, which is as follows:

"That Ellen Byford was a full-blood Choctaw Indian, and that her restrictions had never been removed by the Department of the Interior of the United States, or any representative thereof. That the only property that the decedent undertook to alienate by will in this case consisted of real estate and is of the value of about $ 4,500, and is composed of her homestead allotment and surplus allotment as a member of the Choctaw Tribe of Indians. That at the time of her death she was an adult, and she has no issue born since March 4, 1906; and that she left no husband surviving her. That the said Ellen Byford died on the 11th day of May, 1914, and at the time of her death she was a resident of Garvin county, Okla. That the will in question herein was duly and legally executed, as provided by the laws of the state of Oklahoma, but the same was not acknowledged before, nor approved by, a judge of the United States Court in the Indian Teritory, nor a United States Commissioner, nor any county judge of the county court of the state of Oklahoma. That at the time of the execution of the will aforesaid the said Ellen Byford was of a sound and disposing mind and memory, and that the will was duly and properly signed, as is provided by the law of the state of Oklahoma on the 17th day of January, 1914, and the will herein is the only will left by the decedent, Ellen Byford, and that the contestants, Simeon Wesley and Nelson Wesley and Edmond Wesley, are direct issue (children) of the said Ellen Byford, and are full-blood Indians. That Joshua Wesley and Florence Bedford, named in said will, are grandchildren of the decedent, Ellen Byford, and are also full-blood Choctaw Indians.

"It is agreed that the sole and only questions to be determined herein are:

"First. Whether or not a full-blood Indian having no issue born since March 4, 1906, in being, may make a valid will disposing of real estate, including her homestead.

"Second. Whether or not under the terms of the will above referred to (which will is hereby referred to, and made a part of this agreed statement of facts), there is such a disinheritance as will bring this will under the supervision of the congressional act of May 27, 1908, necessitating that said will be acknowledged before and approved by a judge of the United States Court of the Indian Territory, or a United States Commissioner, or a judge of the county court of the state of Oklahoma."

¶2 The will offered for probate authorized and directed the executor, named therein, to sell all of the real estate of which testator died seised, and directed the payment by said executor of certain legacies as follows: To Nelson Wesley, son of testator, the sum of $ 500 in installments of $ 50 every three months; to Edmond Wesley, son of testator, the sum of $ 400 in installments of $ 50 every three months; to Simeon Wesley, son of testator, the sum of $ 400 in installments of $ 50 every three months; to Florence Bedford, granddaughter of testator, the sum of $ 200 in installments of $ 50 every three months; to Moses Wesley, grandson of testator, the sum of $ 500 in installments of $ 50 every three months; and to Joshua Wesley, grandson of testator, all the residue of the estate of testator. The only question involved in the determination of this case is whether or not the provisions of section 23 of the act of the Congress of April 26, 1906, as amended by section 8 of the act of the Congress of May 27, 1908, governing the execution of wills, devising real estate, by full-blood Indians, are applicable to the will here in question. Said section 23 is as follows:

"Every person of lawful age and sound mind may by last will and testament devise and bequeath all of 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 such last will and testament disinherits the parent, 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 Territory, or a United States Commissioner." 34 Stat. 145.

¶3 Said section 8 is as follows:

"That section 23 of an act entitled 'An act to provide for the final disposition of the affairs of the Five Civilized Tribes in the Indian Territory, and for other purposes, approved April twenty-sixth, nineteen hundred and six, is hereby amended by adding at the end of said section, the words, 'or a judge of a county court of the state of Oklahoma.'" 35 Stat. 312.

¶4 It is argued by counsel for defendant in error that, as it has been held by this court that, in a proceeding for the probate of a will, the only question to be determined by the court is the factum of the will or devisavit vel non, the question of whether or not the provisions of the will are valid and constitute a good devise or bequest was not before the court, and therefore, it having been agreed that the will in question was executed in conformity to the laws of Oklahoma, it was properly admitted to probate. Unfortunately for defendant in error, this is no longer an open question in this jurisdiction. In the case of Bell v. Davis, 55 Okla. 121, 155 P. 1132, this court says:

"Still another point made in one of the briefs as a reason for denying the probate of the will is that its execution was insufficient because it was not acknowledged before a

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