In re Jessie's Heirs

• Decision Date: 26 May 1919
• Docket Number: 2982.
• Citation: 259 F. 694
• Parties: In re JESSIE'S HEIRS.
• Court: U.S. District Court — Eastern District of Oklahoma

259 F. 694

In re JESSIE'S HEIRS.

No. 2982.

United States District Court, E.D. Oklahoma.

May 26, 1919

[Copyrighted Material Omitted]

Cutlip & Horsley, of Wewoka, Okl., for movant.

Jones &amp Foster, of Muskogee, Okl., opposed.

J. C Stone, of Muskogee, Okl., and McDougal, Lytle & Allen, of Sapulpa, Okl., amici curiae.

WILLIAMS District Judge.

By virtue of Act Cong. June 14, 1918, c. 101, 40 Stat. 606 (Comp. St. 1918, append. Secs. 4234a, 4234b), proceedings were commenced in the county court of Okfuskee county to have determined the heirs of Harper Jessie, deceased, a full-blood member of the Creek Tribe of Indians. Said act is entitled:

'An act to provide a determination of heirship * * * and conferring jurisdiction upon district courts to partition lands belonging to full-blood heirs'

-- and provides:

'That a determination of the question of fact as to who are the heirs of any deceased citizen allottee of the Five Civilized Tribes of Indians who may die or may have heretofore died, leaving restricted heirs, by the probate court of the state of Oklahoma having jurisdiction to settle the estate of said deceased, conducted in the manner provided by the laws of said state for the determination of heirship in closing up the estates of deceased persons, shall be conclusive on said question: Provided, that an appeal may be taken in the manner and to the court provided by law, in cases of appeal in probate matters generally: Provided further, that where the time limited by the laws of said state for the institution of administration proceedings has elapsed without their institution, as well as in cases where there exists no lawful ground for the institution of administration proceedings in said courts, a petition may be filed therein having for its object a determination of such heirship and the case shall proceed in all respects as if administration proceedings upon other proper grounds had been regularly begun, but this proviso shall not be construed to reopen the question of the determination of an heirship already ascertained by competent legal authority under existing laws.'

Such being removed to this court, on motion to remand, it is contended that it is properly here under section 28 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1094 (Comp. St. Sec. 1010)), which provides:

'Any suit of a civil nature, at law or in equity, arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, of which the District Courts of the United States are given original jurisdiction by this title, which may now be pending or which may hereafter be brought in any state court may be removed by the defendant or defendants therein to the District Court of the United States for the proper district.'

The Seventh Legislature of Oklahoma passed an act entitled:

'An act to provide for a determination of heirship in all cases of deceased persons; granting the county court original jurisdiction thereof, and providing the procedure therefor'

-- approved April 4, 1919 (chapter 25, Session Laws of Oklahoma 1919), which is in words and figures as follows:

'Section 1. The county court having jurisdiction to settle the estate of any deceased person is hereby granted original jurisdiction to hear and determine the question * * * of fact as to the heirship of such person, and a determination of such fact by said court shall be conclusive evidence of said question in all the courts of this state: Provided, that appeals may be taken from said county court within the time and in the manner provided by law as in other probate matters. If no appeal is taken the judgment of the county court shall be final, and in all cases appealed from the county court when a final determination thereof is had, same shall be a final determination of such fact of heirship: Provided, that where the time limited by the law of this state for the institution of administration proceedings has elapsed without their institution, as well as in cases where there exists no lawful ground for the institution of administration proceedings in said court, a petition may be filed therein having for its object a determination of such heirship and the case shall proceed in all respects as if administration proceedings upon other proper grounds had been regularly begun, but this provision shall not be construed to reopen the question of the determination of an heirship already ascertained by competent legal authority under existing laws.

'Sec. 2. In all proceedings under this act to determine the question of heirship of any deceased person it shall be necessary for an heir of the decedent, or a record claimant of some interest in the estate of such decedent to file in the proper county court a verified petition, setting out the names of the deceased, a description of the estate of which the decedent died seized, respecting which the question of heirship is sought to be determined, the names and addresses of all known heirs and record claimants, and the extent of the interest claimed by such heir or heirs of record claimant, if known.

'Sec. 3. Upon the filing of such petition the county judge shall make an order fixing a day for the hearing of said petition, not less than six nor more than ten weeks from the time of making such order, and directing all the heirs of such deceased person and record claimant to lands or any part thereof of which said decedent died seized to appear before the court at the time and place specified, and to submit to the court evidence that is competent to establish heirship of such deceased person. The court shall cause notice of such hearing to be given by serving a copy of said notice on the known heirs and record claimants of said decedent's estate in the manner and within the time as provided for service of summons in civil actions in the district court. The service on unknown heirs and unknown claimants shall be had in the same manner as is now provided for the service of summons in civil actions in the district court for nonresident defendants. The hearing shall be had on the date fixed by the court, except continuances may be had for good cause shown as in civil actions.

'Sec. 4. Upon the date set for the hearing of said petition the county court shall hear evidence offered, and shall render judgment according to said evidence, as in other probate cases, and the court shall determine the heirs of the said decedent as of the date of the death of the said decedent. The judgment of the court shall be final and conclusive on all persons appearing or who have been personally served with summons, and shall be final as to all those served by publication, unless any person so served by publication may file in said county court, within twelve months from the rendition of said judgment, a verified petition setting forth that he or she did not have actual notice of the hearing in time to be present at the hearing, and that he or she, in good faith, believes himself to be an heir of the decedent and the facts on which such belief is based, and in that event he shall be heard thereon. The county judge shall, upon the date of filing said petition, set a date for the hearing of such petition and shall cause all parties of record in said cause to be given reasonable notice thereof of not less than ten nor more than thirty days. Upon such hearing the court shall determine the heirship of said decedent and shall render a decision thereon in accord with the facts shown on said hearings; such judgment so rendered shall vacate the original judgment and shall have the same force and effect as in the original hearing thereon, and any party aggrieved may appeal as from the judgment on the original hearing.

'Sec. 5. In all cases appealed from any judgment rendered under the provisions of this act, the law applicable to appeals in probate matters shall apply, and appeals may be taken from all final orders, as provided for appeals in probate matters.

'Sec. 6. The method herein provided for the determination of the heirs of a deceased person shall not be exclusive, but shall be in addition to the method already provided by law, except that the method provided in section 6488 of the Revised Laws of Oklahoma 1910, shall be no longer in force and said section 6488 is hereby repealed.'

See, also, Session Laws 1919, chapter 145.

Appeals lie to the district court from a judgment, decree, or order of the county court as follows: (1) Granting, or refusing, or revoking letters testamentary or of administration, or of guardianship; (2) admitting, or refusing to admit, a will to probate; (3) against or in favor of the validity of a will or revoking the probate thereof; (4) against or in favor of setting apart property, or making an allowance for a widow or child; (5) against or in favor of directing the partition, sale or conveyance of real property; (6) settling an account of an executor, or administrator or guardian; (7) refusing, allowing or directing the distribution or partition of an estate, or any part thereof or the payment of a debt, claim, legacy or distributive share; or (8) from any other judgment, decree or order of the county court in a probate cause, or of the judge thereof, affecting a substantial right. Section 6501, Rev. L. Okl. 1910.

'Any party aggrieved may appeal as aforesaid, except where the decree or order of which he complains, was rendered or made upon his default. ' Section 6502, Rev. L. Okl. 1910.

'A person interested in the estate or funds affected by the decree or order, who was not a party to the special proceeding in which it was made, but who was entitled by law to be heard therein, upon his application, or who has acquired, since the decree or...