In re McDade's Estate
| Decision Date | 10 July 1923 |
| Docket Number | 10747. |
| Parties | IN RE MCDADE'S ESTATE. v. TYNER ET AL. WALKER |
| Court | Oklahoma Supreme Court |
Rehearing Denied Sept. 18, 1923.
Syllabus by the Court.
A marriage of Cherokee freedmen in 1876, according to the custom of the Cherokee Nation at that time, and a living together as husband and wife according to such custom, was a lawful marriage, and rendered the issue of such marriage legitimate.
Pedigree may be proved by hearsay testimony, and evidence of declarations of particular facts such as births, marriages and deaths made ante litem motam, by a person since deceased who was related by blood or affinity with some branch of the family, the pedigree respecting which is in question, are admissible in evidence.
It is not error to admit in evidence a certified copy of the testimony of a member of a family taken before the Commission to the Five Civilized Tribes, on the application of such member for enrollment of herself and family, to prove pedigree, if such person is dead at the time of the trial and such testimony was given before there was anything to throw doubt upon it.
The declarations of a person since deceased, made under oath, upon her application for enrollment as a member of the Five Civilized Tribes, which have been reduced to writing and filed with the Commission to the Five Civilized Tribes, becomes a part of the records of a department of the government of the United States, and copies thereof duly certified by the proper officer, are admissible in evidence under the provisions of section 5112, Rev. Laws 1910, and section 651, Comp. St. 1921.
In an equity proceeding, the findings and judgment of the trial court will not be disturbed, unless clearly against the weight of the evidence.
Record examined, and held, that the findings of fact and judgment of the trial court that Thomas H. Walker was not the grandfather of Frank McDade, Jr., are not clearly against the weight of the evidence.
In a proceeding to determine heirship instituted and prosecuted under section 6488, Rev. Laws 1910, it is not necessary to file a motion for a new trial in the county court in order to appeal to the district court. Appeals in such matters may be taken in the manner provided by law in cases of appeal in probate matters generally.
By the provisions of section 6488, Rev. Laws 1910, the party filing the petition, if he files a complaint, and if not, the party first filing a complaint shall be treated as the plaintiff, and all other parties appearing therein shall be treated as defendants, held, that B., having filed a petition, which contained the necessary allegations of a complaint, should have been treated as the plaintiff in the case.
The matter of the mere order in which proof is introduced at a trial rests very much within the sound discretion of the trial court, and unless it clearly appears that this discretion has been abused to the injury of the complaining party, a judgment will not be reversed on this ground.
It is within the discretion of the trial court to prevent frequent and apparent useless repetitions of the same questions by different parties, and it is not error to refuse to permit cross-examination calling for a repetition of testimony given on former cross-examination.
A judgment will not be set aside or new trial granted on account of error in the matter of procedure, unless after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.
Only such part of the testimony of a witness given at a former trial as is inconsistent with his present testimony is necessary or proper to be shown by the impeaching party.
Persons in slavery were incapable of contracting marriage, and the offspring of such persons have no inheritable blood, in the absence of a legitimatizing statute passed subsequent to emancipation, or unless the parties to such marriage lived and cohabited as man and wife at the time of or after emancipation.
When a marriage in fact has been shown, the law raises a presumption that it is valid, casting the burden on him who questions it to establish its invalidity.
Where T. claimed to inherit through his father by right of representation, and proved that his father and mother were slaves, that he was born in slavery, and that his parents separated during slavery, and never lived and cohabited as man and wife after emancipation, this was sufficient to rebut the presumption of his legitimacy, as his parents were incapable of contracting marriage.
In order for marriage between slaves to have an effect after emancipation, they must have lived and cohabited as man and wife thereafter.
Neither article 9 of the Cherokee Treaty of July 19, 1866, nor section 38 of the Act of Congress of May 2, 1890, had the effect of legitimatizing the offspring of slave marriages.
Section 4609, Mansfield's Digest of the Statutes of Arkansas, rendered valid only those marriages of persons of color, who were living together at the time of its enactment, viz. December 20, 1866.
The act of the Legislature of the state of Arkansas of February 6, 1867, legitimatizing the offspring of negroes, theretofore cohabiting as husband and wife, was not incorporated in Mansfield's Digest of the Statutes of Arkansas, and was never in force in the Indian Territory.
The Thirteenth Amendment to the federal Constitution, abolishing slavery, did not have the effect of legitimatizing the issue of slave marriages.
The power to control and regulate marriages is retained by the state, and the right of inheritance is governed solely by state laws.
Where a child born in slavery of slave parents was, after emancipation of the parents, acknowledged by the father as his own, such acknowledgment did not have the effect of legitimatizing such child under the provisions of section 4399, Rev. Laws 1910.
By the provisions of section 8420, Rev. Laws 1910, in order for an illegitimate child to represent his father or mother by inheriting any part of the estate of his or her kindred, either lineal or collateral, his father and mother must before his death have intermarried, and his father, after such marriage, must have acknowledged him as his child or have adopted him into his family.
That part of section 8420, Rev. Laws 1910, which provides: "The issue of all marriages null in law, or dissolved by divorce, are legitimate," has no application to slave marriages.
Section 4366, Rev. Laws 1910, has no application to the issue of slave marriages, as such section presupposes a marriage between the parties, and slaves were incapable of entering into the marriage contract.
Record examined, and held, that it shows the Buffington claimants to be the nearest of kin of the deceased capable of inheriting.
Appeal from District Court, Muskogee County; Benjamin B. Wheeler, Judge.
Proceedings by Henry Buffington and others, to determine heirship to the estate of Frank McDade, in which other claimants filed answers. From a judgment in favor of claimant Prince Tyner, claimants Henry Buffington and others, Thomas H. Walker, and T. E. Elliott, administrator, appeal. Reversed and remanded, with directions.
Stone, Moon & Stewart and Broaddus & Ambrister, all of Muskogee, for plaintiff in error Walker.
Geo. S. Ramsey, of Muskogee, and Carter Smith, of Tulsa, for plaintiffs in error Buffington heirs.
Thomas E. Elliott, of Tulsa, and Gibson & Hull, all of Muskogee, for plaintiff in error Elliott.
William Neff and L. E. Neff, both of Muskogee, W. A. Chase, of Tulsa, and A. B. Campbell, of Pawhuska, for defendant in error Prince Tyner.
This was a proceeding for the determination of heirship in the matter of the estate of Frank McDade, Jr., deceased, and originated in the county court of Muskogee county. Frank McDade, Jr., a minor Cherokee freedman, died intestate, on the 26th day of June 1915, leaving an estate consisting of approximately $7,500 in personal property; his own allotment; an allotment inherited by him from his deceased brother; and allotment inherited from his deceased mother; and a tract of land purchased for him by his guardian, and this case involves the question as to who inherits this property. There are five sets of claimants to the estate, viz.:
Thomas H. Walker, who claims to be the maternal grandfather, and who bases his claim upon the alleged fact that in the Cherokee Nation from 1866 to 1898, custom marriages were recognized between freedmen in said nation, and according to this custom, he and one Emily Pinder, commonly known as "Crippled Emily," lived together as husband and wife for a period of several years, during which time there was born to them a child named Mollie, who afterwards intermarried with Frank McDade, Sr., and who was the mother of Frank McDade, Jr.
Prince Tyner, who claims that he was the child of Andy Tyner and Rear Tyner, that his father Andy Tyner, lived with Crippled Emily under the custom of the Cherokee freedmen, as her husband; and that Andy Tyner was the father of Mollie McDade, who was the mother of Frank McDade, Jr. Andy Tyner died intestate many years ago, and Prince Tyner claims to be the heir of Frank McDade, Jr., by reason of being a half brother of Mollie McDade, Frank's mother, and claims to inherit by right of representation through his father.
Annie Reed and Dave McDade, who claim to be the sister and brother of Frank McDade, Sr., and therefore the aunt and uncle of Frank McDade, Jr.
Henry Buffington, Stella Thornton, Robert Thornton, Sadie Welch Alice Gordon, Kittie Foreman, Joe Thompson, Johnny Mackey, Henrietta Thornton, Seymore Johnson, Eunice Welch,...
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