In re Micco's Estate, Civil Action No. 854.

CourtUnited States District Courts. 10th Circuit. Eastern District of Oklahoma
Citation59 F. Supp. 434
Docket NumberCivil Action No. 854.
PartiesIn re MICCO'S ESTATE.
Decision Date06 March 1945

Cleon A. Summers, U. S. Atty., of Muskogee, Okl., for the United States.

J. Hugh Nolan, of Okemah, Okl., and Anglin, Stevenson & Huser, of Holdenville, Okl., for administrators.

M. S. Robertson, U. S. Probate Atty., of Muskogee, Okl., for restricted Indian heirs.

Harry Seaton, of Tulsa, Okl., for Sherman Micco, an intervening claimant.

RICE, District Judge.

This proceeding originated in the County Court of Okfuskee County, Oklahoma, by the filing of a petition for the appointment of an administrator of the estate of Peter Micco, deceased. The petition discloses that the deceased left an estate of the approximate value of $500,000, and that his heirs are full-blood Indians.

Removal to this court was upon petition filed by the United States Government, pursuant to a notice caused to be served upon the Superintendent of the Five Civilized Tribes by the United States Probate Attorney, acting in his official capacity, and for alleged incompetent minor heirs of the deceased. The Petition for Removal filed by the United States discloses that the deceased was enrolled as a three-fourths blood Seminole Indian and that a portion of the estate of said deceased is restricted property under the laws of the United States, and that the heirs at law of said Peter Micco are restricted Indians. The basis of the notice caused to be served by the United States Probate Attorney was a Motion to Dismiss filed in the County Court of Okfuskee County, Oklahoma, challenging the jurisdiction of the County Court to appoint an administrator for two reasons: first, Micco was not a resident of Okfuskee County at the time of his death; and second, the petitioner was not authorized to file the petition, being neither a relative of the deceased nor a creditor of his estate.1

Before removal here, the County Court appointed co-administrators who filed their bonds and qualified as such. After the decision in Merrell v. United States, 10 Cir., 140 F.2d 602, the government abandoned any contest as to the jurisdiction of the County Court to appoint an administrator and filed herein its Complaint in Intervention, seeking the judgment of this Court determining the heirs of the deceased. In addition, the government alleges that since the death of Peter Micco one of his heirs, Haney Micco Larney, has died leaving a will which has been admitted to probate by the County Court having jurisdiction of the settlement of her estate, and that since the death of Haney Micco Larney one of her heirs, towit, Johnnie Lee Larney, has died intestate. On these allegations the Court is asked to determine whether or not the will of said Haney Micco Larney transferred her interest in the estate of Peter Micco, deceased, to the devisees and legatees named therein, and if not, to determine the heirs of the said Haney Micco Larney and also the heirs of Johnnie Lee Larney, the ultimate relief sought by the government being a determination of who are now the rightful owners of the property left by Peter Micco, deceased, what interest each takes, and a further decree determining which properties of the deceased are restricted and subject to the supervision of the Secretary of the Interior.

A probate proceeding — nothing more — was removed. Equitable relief which might appropriately be granted in an original action filed herein by the United States government is now sought. The question is — does this court have jurisdiction to proceed and determine in this removed proceeding the issues presented in the government's Complaint in Intervention? Stated another way — is a probate proceeding removable under Section 3 of the Act of April 12, 1926, 44 Stat. 239?2

The jurisdiction of this Court has been challenged by Motion to Remand filed herein by the administrators appointed by the County Court. For the first time, the government has definitely taken the position that this Court has probate jurisdiction in these Indian cases. At the request of this Court the government filed its brief herein stating clearly and definitely its position. Its position, as stated in its brief, is:

"1. Whether proceedings for the probate of the estate of a deceased, restricted Indian allottee of the Five Civilized Tribes who is survived by restricted Indian heirs are removable to the federal court under Sec. 3 of the Act of April 12, 1926, 44 Stat. 239.

"2. Whether, if such proceedings are removable, the federal court may exercise complete probate jurisdiction and fully administer the unrestricted estate." (Emphasis supplied)

Admittedly, the question presented is not without difficulty. The difficulty is presented by the fact that this jurisdiction is committed to the conclusion that a contest over the probate of a will devising restricted property of a deceased restricted member of the Five Civilized Tribes is removable. Caesar v. Burgess, 10 Cir., 103 F.2d 503. On the other hand, the courts of this jurisdiction are committed to the conclusion that this court does not have general probate jurisdiction nor are probate proceedings removable under the general removal statutes. Caesar v. Burgess, supra; House v. United States, 10 Cir., 144 F.2d 555 (a removed case).

In the Jackson Barnett case, Scott v. Beams et al., and four other cases, 10 Cir., 122 F.2d 777, the right of the government to remove a probate proceedings from the County Court was not discussed. That case was a consolidation of a proceeding removed from the County Court of Muskogee County, Oklahoma, with two quiet title suits, one removed from the State District Court of Muskogee County, and the other removed from the State District Court of McIntosh County, seeking a determination of the heirs of Jackson Barnett. After removal, the probate proceeding was consolidated with the two quiet title suits. Thereafter, Judge Williams entered an order retaining jurisdiction in the probate proceedings for the sole purpose of determining heirs, and remanded such proceedings for the appointment of an administrator and further proceedings by the administrator. The procedure followed by Judge Williams in the Jackson Barnett case was the same as he had followed in Caesar v. Burgess, supra, wherein he retained jurisdiction solely for the purpose of determining the contest of the will, and in an earlier case of In re Palmer's Will, D.C., 11 F.Supp. 301. It is interesting to note that the Palmer's Will Case, the first of its kind to be removed, was not removed until after trial in the County Court and while pending on appeal in the District Court. The government has recently taken the position in this Court that an attempted removal after appeal is ineffective, and this Court does not acquire jurisdiction.

After the decision in Scott v. Beams, supra, came the decision of the Supreme Court of the United States in United States v. Hellard, 322 U.S. 363, 64 S.Ct. 985, 88 L.Ed. 1326, which will be discussed later on in this Memorandum.

If this Court has the jurisdiction contended for by the government, it is by virtue of Section 3 of the Act of 1926. Said Section refers to "parties to a suit" as "plaintiff, defendant, or intervenor." It provides that the United States "may appear in said cause within twenty days" after service of notice. Twenty days is the time provided by the laws of Oklahoma for a defendant in a civil suit in the District Courts to answer. The history of this legislation shows that an effort was made to change the time within which the government should appear from twenty days to sixty days. Objection was made to this change for the reason that it was not deemed wise to attempt to change the procedure of the State Courts of Oklahoma. Obviously, the Members of Congress were not thinking of the probate procedure of the County Courts of Oklahoma. See Congressional Record, Vol. 67, part 6, pages 6517 and 6573. In order to conform to state procedure and still have additional time, it was provided that "the trial court" (meaning State Court) may extend the time within which the United States may appear. When such a suit is removed, the Act provides: "and the cause shall then proceed in the same manner as if it had been originally commenced in said district court."

A careful reading of Section 3, accepting the language as the terms therein are ordinarily understood, does not suggest a probate proceeding. Conceding, for the moment, that the term "suit" as used in the Act, in its broadest interpretation and meaning, includes a probate proceeding, the fact remains that such is not its ordinary and accepted meaning, and we should presume Congress used it in its ordinary and accepted meaning. If Section 3 is to be construed as the government contends for, it confers upon the United States District Courts of the eastern half of Oklahoma jurisdiction in a vast field of law and a jurisdiction which does not exist by the general act of Congress. One would presume that had Congress intended to make such a sweeping change in the jurisdiction of the United States District Courts of this jurisdiction, apt language to that effect would have been used, leaving the matter free from doubt. If it had been the purpose of Congress to thus enlarge the jurisdiction of the courts insofar as restricted members of the Five Civilized Tribes are concerned, it is difficult to understand why the Department of the Interior, immediately upon the passage of the Act, and the Department of Justice did not so understand it. The intent of Congress should have been better known then than it is now, nineteen years after the passage of the Act.

The Act of 1926 was passed for the purpose of affording relief insofar as the permanence of Indian titles in the eastern part of Oklahoma is concerned. It has been said "such act is a remedial statute for permanence of titles and that judgments in all such actions should be binding on all parties." United States v....

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1 cases
  • United States v. Rice
    • United States
    • United States Supreme Court
    • April 22, 1946
    ...without prejudice, and remanding the proceeding to the county court for want of jurisdiction in the district court. In re Micco's Estate, D.C., 59 F.Supp. 434. The United States thereupon instituted this proceeding in the circuit court of appeals by a petition for writ of mandamus, to direc......

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