In re Hamm's Estate
| Decision Date | 27 February 1940 |
| Docket Number | 28354. |
| Citation | 99 P.2d 895,186 Okla. 610,1940 OK 101 |
| Parties | In re HAMM'S ESTATE. STUART et al. v. HAMM. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. To be "of Indian Blood" as contemplated by sec. 7 of the Act of Congress of Feb. 27, 1925, 43 Stat. 1008, 25 U.S.C.A. § 331 note, precluding inheritance from those of one-half, or more, Indian blood of the Osage Tribe by persons not "of Indian blood" one does not have to be of dominant Indian blood, nor does such Indian blood need to be of the Osage Tribe, and a person who is one thirty-second Cherokee may inherit.
2. A party is not concluded by the statement of any witness, but has the right to introduce other competent evidence, to show the real facts, although such testimony may incidentally contradict or tend to impeach the testimony of a previous witness.
3. Subject to some limitations and restrictions, matters of family history, relationship, and pedigree constitute an exception to the rule excluding hearsay evidence and such matters may be established by members of the family, or by persons whose knowledge of the subject was derived from close acquaintance with the propositus and his family.
4. A cause will not be reversed for the exclusion of competent evidence in the trial of a cause to the court when upon hearing of motion for new trial such evidence was admitted and its probative force determined and held to be insufficient to alter the judicial conclusion previously announced.
Appeal from District Court, Osage County; Jesse J. Worten, Judge.
Proceeding in the matter of the estate of Anna Trent Hamm, deceased, a full blood Osage allottee, wherein the question for determination was whether Murl Hamm, the surviving husband of Anna Trent Hamm, deceased, was of Indian blood, so as to be entitled to inherit a portion of her estate. The county court decided as a matter of fact that Murl Hamm was of part Indian blood, and entitled to inherit, and Nora Claremore Stuart and others appealed to the district court. The district court arrived at the same conclusion, and Nora Claremore Stuart and others appeal.
Affirmed.
Frank Mahan, of Fairfax, and Tillman & Tillman and J. C. Cornett all of Pawhuska, for plaintiffs in error.
L. R Stith, of Fairfax, C. S. Macdonald, of Pawhuska, and F. E Chappell, of Oklahoma City, for defendant in error.
The question to be determined in this case is whether Murl Hamm, the surviving husband of Ann Trent Hamm, deceased, a full blood Osage allottee, is of Indian blood and entitled to inherit a portion of her estate as one of her heirs at law. Murl Hamm and Ann Trent Hamm were married on the 23d of December 1929, subsequent to the Act of Congress of Feb. 27, 1925, 43 Stat. 1008, 25 U.S.C.A. § 331 note, sec. 7 of which prohibits inheritance by persons not of Indian blood from those of one-half or more Indian blood of the Osage Tribe, except spouses of then existing marriages.
The case originated in the county court of Osage County which decided as a matter of fact that the surviving husband was of part Indian blood of the Cherokee Tribe and, therefore, entitled to inherit. On appeal the District Court of Osage County arrived at the same conclusion.
There were no children, father or mother of Anna Trent Hamm left surviving her, thus her estate passed, one-half to her surviving husband, and one-half to her collateral kindred, consisting of a sister and several nieces and nephews, unless the surviving husband is disqualified to inherit, in which event it should pass in toto to the collateral kindred, who appear herein, as plaintiffs in error.
In presenting this case on appeal the plaintiffs in error first urge that: "The evidence does not justify the finding that Murl Hamm is of Indian Blood and entitled to share in this estate as an heir at law."
A determination of the merit of this proposition has required a careful review and analysis of the evidence produced by the parties. Due to its voluminous character, we shall not undertake to delineate the same in detail in this opinion. Our purpose will be served sufficiently by an epitomization of the salient features.
When this case was tried in the District Court in June of 1937, Murl Hamm was 27 years of age. He claims to be 1/32d Indian blood of the Cherokee Tribe. He attributes his Indian blood to his maternal ancestors. According to his testimony, he was many times advised of this fact by his mother and relatives on his mother's side of the family. His mother's name was May Hamm. His maternal grandmother's name was Georgia (also referred to as Georgianna) Moore Marshall whose father was Joseph Green Moore (also referred to as Green Moore). There is a great amount of testimony in the record that according to family tradition and statements, made by each of the foregoing ancestors, and other relatives of the mother's line, Green Moore and his descendants were and are possessed of a degree of Indian blood.
In the trial of this case, the collateral kindred took the position that Green Moore was not of Indian blood and this controversial issue became the focal point of a large part of the testimony of both parties hereto.
The date of Green Moore's birth is fixed as October 8, 1824, and the date of his death, as approximately 1896. A picture of Green Moore was introduced in evidence. His features and appearance as thereby reflected were not such as to definitely establish Indian blood. However, they were not such as to preclude the possibility of its existence. A picture identified as that of his mother was also introduced in evidence. The features of the mother, referred to by the witnesses as Susan, Susan Ann, and Susanna Moore, are such as to leave little room for doubt concerning the presence of Indian blood in her veins.
The collateral kindred deny, however, that the woman, Susan Moore, was of Indian blood and that she was the mother of Green Moore or as they assert the maternal relationship is, under the evidence produced in this case, at least doubtful. This challenge of relationship traverses the testimony of a number of the kindred of Murl Hamm to the effect that according to family history as known to them, Susan Moore was the mother of Green Moore. On the question of identity, the picture produced, offered, and admitted originated with the kindred of Murl Hamm who has preserved it as a family memento. A number of his relatives, immediate and remote, who testified as witnesses, identified the picture as that of the mother of Green Moore, with whose likeness they were familiar in connection with family history.
The plaintiffs in error say the probative force of this evidence is destroyed by certain evidence touching upon the age of Susan Moore which it is said demonstrates that it would have been a biological impossibility for her to have been the mother of Green Moore by reason of her tender age at the date of his birth. A Cherokee Census Roll was made up in 1867, which, if correct, would have made her 7 years old at the date of Green Moore's birth. However, it is not contended that the census roll is conclusive evidence on the question of age. It appears from the record and was found by the trial court that such roll was not altogether accurate on such matters. In addition to the foregoing, the plaintiffs in error also point to the testimony of witnesses who were acquainted with Susan Moore and who in retrospect estimated her age at such a figure as to render it improbable or impossible that she were the mother of Green Moore, if such estimates were correct.
The trial court found that the Cherokee census taker of 1867 was either mistaken or misinformed as to the true age of Susan Moore. It was also found that some of the witnesses erred in their retrospective estimation of her age. In view of other evidence in this case, which amply supports the view that Susan Moore was of sufficient age to be and actually was the mother of Green Moore, we are unable to say that this finding was not in accord with the proof. We thus conclude that the finding of the trial court that Susan Moore was the mother of Green Moore can not be disturbed by this court.
On the question of her Indian blood (without reference to the quantum thereof which as we shall subsequently see is not material in this case) it may be observed that the inaccuracy of the census roll as to age does not necessarily impeach or destroy the probative force of the same as to the existence of Indian blood since it is much more probable that objection would have been made by her contemporaries among the Cherokees to the erroneous presence of an alien on the rolls than to an error in the age...
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