In re Little Joe

• Citation: 165 Wash. 628,5 P.2d 995
• Decision Date: 15 December 1931
• Docket Number: 23218.
• Parties: In re LITTLE JOE.
• Court: United States State Supreme Court of Washington

5 P.2d 995

165 Wash. 628

In re LITTLE JOE.

No. 23218.

Supreme Court of Washington

December 15, 1931

Department 2.

Appeal from Superior Court, Snohomish County; Guy C. Alston, Judge.

In the matter of the estate of Little Joe, whose true Indian name was Sahl-Pud, deceased. Objections of the administrator of the estate of Jennie Joe, deceased, were overruled, and the property distributed in accordance with the will of Little Joe. From the decree of distribution, the objector appeals.

Affirmed.

Joseph H. Smith and Clarence J. Coleman, both of Everett, for appellant.

M. H Forde, of Everett, for respondents.

HOLCOMB J.

This appeal is from the decree of distribution in the estate of Little Joe, whose true Indian name was Sahl-Pud, deceased. Appellant is the administrator of the estate of Jennie Joe the widow of decedent. Respondents are the administrator with the will annexed and two nephews of Little Joe, deceased. On the hearing of the final account and petition for distribution in the court below, it held that all the property of the estate of Little Joe was his separate property subject to his power of disposition by will, and that respondents were distributees in the will and entitled to the property under the will of Little Joe, overruling all claims of the estate of Jennie Joe, deceased, his widow, to the property.

The facts were stipulated by counsel at the hearing and with necessary interpositions of documents stipulated, but referred to only as exhibits, substantially as follows:

Little Joe and Jennie Joe, his wife, were Indians and wards of the United States government. Pursuant to the treaty between the United States government on one side, and the Snohomish and other tribes, bands, and subordinate bands of Indians on the other side, made by Governor Stevens at Point Elliott, in the territory of Washington, on January 22, 1855, ratified March 8, 1859 (12 U.S. Stat. 927), certain lands were withdrawn from the public domain and organized into Indian reservations with provisions that these lands could, by the president of the United States, be parceled out to such Indians as would avail themselves of the privilege of making homes thereon. The treaty, by reference, made a part of it the sixth article of the treaty of the United States with the Omaha Indians made in 1854. The terms of the sixth article of that treaty are set out in full in 10 U.S. Stat. 1044, and in Bird v. Winyer, 24 Wash. 269, 64 P. 178, and in Jackson v. Thompson, 38 Wash. 282, 80 P. 454, and also, in Meeker v. Kaelin (C. C.) 173 F. 216, 220. By the sixth clause of the treaty with the Omahas, an Indian who was married and had no children should be entitled to receive one hundred sixty acres of an allotment, when allotments should be made under the treaty. In 1905, Little Joe, who was then married to Jennie, first freceived a patent under the treaty of Point Elliott for one hundred sixty acres as being a married man without children. In 1913, that patent was canceled and a new one issued in lieu thereof while Little Joe and Jennie were still married. They continued to occupy the allotment made to Little Joe for a number of years. Later, under the supervision of the Tulalip Indian Agency, the timber on the allotment was sold, and the money left in trust under the control of the agency. In 1926, part of that money was used to buy the sixty acres of land here involved. A house was then built on this land in which Little Joe and Jennie resided until September, 1927, when Lttle Joe died. Jennie continued to live on the sixty-acre tract until 1929, when she died. Little Joe left a will which devised certain restricted property to his nephews. Jennie Joe also left a will in which she left all her property to certain other parties. Upon the settlement of the Little Joe estate, the administrator of the Jennie Joe estate filed his objections which were overruled, and the property distributed in accordance with the will of Little Joe. The material portions of the will of Little Joe read:

'I hereby give, devise and bequeath, to my loving wife Jennie all my property both real and personal, the real property consisting of my restricted allotment situated in the County of Snohomish, Washington, particularly described as follows, to-wit:

'The Northwest Quarter (NW 1/4) of Section Fourteen (14) Township Thirty (30) Range Four (4) East, being Tulalip allotment No. T-39B.

'My personal property consists at this time of Twenty-two thousand, Five Hundred and Forty-four Dollars and Ninety-two cents ($22,544.92) held in trust by the United States Government. It is my wish that this money or whatever amount be on hand and remaining, at the time of my demise pass to my wife Jennie, as aforesaid, with this proviso, to-wit:

'Upon the death of my loving wife Jennie and, and all, of the remaining property, real and personal, above described shall descend in equal shares to my nephews Wilson George and Joseph Willard George.

'I hereby declare that I have no issue, nor brother nor sister and that Wilson George and Joseph Willard George are the children of my deceased brother George Willy and my nearest kin.'

The property described by the will is not the same property now in the estate; its description being as follows: 'The NE 1/4 of the SE 1/4 and N 1/2 of SE 1/4 of SE 1/4, Section 22, Township 30, N. R. 4 E. W. M., containing 60 acres, more or less, situated in Snohomish County, Washington.'

The granting clause of the patent issued on April 3, 1913, to Little Joe, reads: 'Now Know Ye, that the United States of America, in consideration of the premises and in accordance with the directions of the President of the United States under the aforesaid sixth article of the treaty of the sixteenth day of March, anno Domini one thousand eight hundred and fifty-four, with the Omaha Indians, has given and granted, and by these presents, does give and grant, unto the said Sahl-pud, or Little Joe, and to his heirs, the tract of land above described. * * *'

Then follow certain restrictions as to alienation and leasing in accordance with the provisions of the sixth clause of the treaty with the Omahas. The consent of the Tulalip Indian Agency was obtained when the property in question was purchased with the proceeds of the timber on the allotment of Little Joe.

The $22,544.92 in the custody of the Tulalip Indian Agency to the credit of Little Joe at the date of his will had been reduced to about $14,000, at the time of the death of Jennie. This sum of money, as well as the original allotment, has been distributed by the United States Department of the Interior to the two nephews according to the will of Little Joe. The sixty-acre tract purchased by Little Joe in 1926, is an unrestricted tract within the Tulalip Indian Reservation.

Appellant makes two contentions: (1) That the property involved is community property of Little Joe and Jennie Joe under the laws of this state; and (2) that Little Joe died intestate as to the property here involved.

Appellant argues that the situation here existing is identical with one where a homestead is granted by the United States government under the United States homestead laws in which the title was initiated and completed during the existence of the community, citing Krieg v. Lewis, 56 Wash. 196, 105 P. 483, 26 L. R. A. (N. S.) 1117, and Curry v. Wilson, 57 Wash. 509, 107 P. 367.

Lands acquired under the United States homestead laws are acquired by purchase under our law, and, when title is obtained, or earned, during coverture, are community property. Kromer v. Friday, 10 Wash. 621, 39 P. 229, 32 L. R. A. 671; Ahern v. Ahern, 31 Wash. 334, 71 P. 1023, 96 Am. St. Rep. 912; Cunningham v. Krutz, 41 Wash. 190, 83 P. 109, 7 L. R. A. (N. S.) 967.

The same is true as to lands acquired under United States pre-emption laws. Curry v. Wilson, supra.

The nature of the title granted by the United States to Indian allotees is entirely different. It is also by a restricted grant of title. At first this court held that they received nothing but possessive titles. Bird v. Winyer, supra. We accordingly held in Jackson v. Thompson, supra, that an Indian who received title to an allotment while the restrictions still remained upon the land had no power to alienate the land or to pass title to it by will. From this pronouncement by this court, however, we were compelled to recede, in view of certain decisions by the federal courts and hold that an Indian allotee under patent from the United States received a base or qualified fee and an inheritable title, in Guyatt v. Kautz, 41 Wash. 115, 84 P. 9, 12, a case not cited by either party. In that case, this court avoided deciding whether or not the title acquired by an Indian and his wife during coverture would be community estate. We held, however, that the laws of descent of this state applied as though of community property. It was said that it was applied 'by reason of necessity, and to carry out the evident purpose of the treaty in securing said estate to the family, and not because we undertake at this time to decide either...