In re Mo-se-che-he's Estate

• Decision Date: 12 November 1940
• Docket Number: 28399.
• Citation: 107 P.2d 999,188 Okla. 228,1940 OK 453
• Parties: In re MO-SE-CHE-HE'S ESTATE. v. ROGERS et al. RED EAGLE et al.
• Court: Oklahoma Supreme Court

107 P.2d 999

188 Okla. 228, 1940 OK 453

In re MO-SE-CHE-HE'S ESTATE.

RED EAGLE et al. v. ROGERS et al.

No. 28399.

Supreme Court of Oklahoma

November 12, 1940

Rehearing Denied Dec. 10, 1940.

Syllabus by the Court.

1. An adult member of the Osage Tribe of Indians in disposing of any or all of his estate by will under the provisions of Section 8 of the Act of Congress of April 18, 1912, 37 Stat 88, must do so in accord with the laws of the State of Oklahoma pertaining to wills.

2. Under Section 1563, O.S.1931, 84 Okl.St.Ann. § 108, a will executed by an unmarried woman is revoked by her subsequent marriage.

3. The marriage of a man and woman where one of them has been divorced from a former spouse less than six months is voidable at the suit of the other commenced within such six months' period.

4. A District Court, under its broad, general equity jurisdiction conferred by the Constitution, has power and jurisdiction to annul a marriage entered into while one of the parties thereto has been divorced from another spouse less than six months where the action is commenced within such six months' period by the party not incapable under the law to marry.

Appeal from District Court, Osage County; Jesse J. Worten, Judge.

Proceeding in the matter of the estate of Mo-se-che-he, Osage Allottee No. 34, deceased. May Red Eagle and others filed a petition in the County Court of Osage County for the probate of the will of Mo-se-che-he, Osage Allottee, No. 34, deceased, and Albert Fierro, otherwise known as Jack Rogers, filed what was denominated an answer to the petition for probate, and a petition for appointment of administrator. From an order denying the admission of the will to probate, May Red Eagle and others appealed to the district court. From a judgment and order of the district court denying admission of the will to probate, May Red Eagle and others appeal.

Judgment and order affirmed.

WELCH V. C.J., dissenting.

J. M. Humphreys, of Pawhuska, and D. E. Johnson, of Fairfax, for plaintiffs in error.

Hook & Thomas, of Kansas City, Mo., Henry R. Duncan, of Tulsa, H. P. White, of Pawhuska, and L. R. Stith, of Fairfax, for defendants in error.

RILEY Justice.

This is an appeal from an order and judgment refusing to admit the will of Mo-se-che-he, a fullblood Osage Indian allottee, to probate.

On January 10, 1933, Mo-se-che-he, who was an unmarried, fullblood Osage Indian woman, made and executed a will, wherein she named Victor Griffin Red Eagle, a minor, Louis Red Eagle, Peter Kenworthy and May Rusk Red Eagle and Bessie Rusk Crawford, beneficiaries, devising and bequeathing her entire estate to said beneficiaries. All of the persons named in said will as beneficiaries are Osage Indians.

Mo-se-che-he died on or about June 30, 1934.

The will was approved by the Secretary of the Interior about June 6, 1935.

On June 12, 1935, May Red Eagle for herself and as next friend of Victor Griffin Red Eagle, and Bessie Rusk Crawford, filed a petition for the probate of said will in the County Court of Osage County. Hearing of the petition was set for July 15, 1935.

Six separate protests against allowance of the will to probate were filed by persons claiming to be heirs of deceased and entitled to inherit in the absence of a will. Nearly all the protests so filed alleged mental incapacity, duress and undue influence and all contained the additional ground that decedent, Mo-se-che-he, was an unmarried woman at the time she executed the will, and thereafter was married, and that said marriage had not been dissolved, and that her husband survived her, and that said marriage revoked the previously executed will under the laws of the State of Oklahoma.

Albert Fierro, otherwise known as Jack Rogers, filed what was denominated an answer to the petition for probate of the will, and petition for appointment of administrator. Therein he alleged in substance that he and Mo-se-che-he entered into a common law marriage about December 1, 1933, which marriage was never dissolved, and that thereafter on May 19, 1934, they entered into a ceremonial marriage which was never dissolved, and which continued down to the death of Mo-se-che-he, which occurred on or about June 30, 1934.

He then alleged that he was the surviving husband of decedent and entitled to inherit the whole of the estate under the law of descent and distribution, and that the purported will was without force or effect as against his right to inherit; that as such surviving husband he had first right to be appointed administrator, and prayed that letters of administration issue to Albert Fierro and Leah Duncan.

Proponent filed answer to all the protests and the petition of Albert Fierro, consisting of general denial, and also asserting that the laws of the State of Oklahoma do not govern in the estates of fullblood Osage Indians, and that the devolution or distribution of the estates of such Indians is controlled and governed by the Act of Congress of April 18, 1912, 37 Stat.L. 88, and particularly Section 8 of said Act, which provides: "Any adult member of the Osage Tribe of Indians not mentally incompetent may dispose of any or all of his estate, real, personal, or mixed, including trust funds, from which restrictions as to alienation have not been removed, by will, in accordance with the laws of the State of Oklahoma: Provided, that no such will shall be admitted to probate or have any validity unless approved before or after the death of the testator by the Secretary of the Interior."

They then alleged that the purported marriage between Mo-se-che-he and Albert Fierro was invalid; that Fierro was a white person and not entitled to inherit from a fullblood Osage Indian woman.

Hearing was had in the County Court resulting in findings of fact in favor of proponents on the questions of mental capacity, duress, undue influence, and a finding that Mo-se-che-he was a single woman when she executed the will offered in probate and thereafter married Albert Fierro, and that by said marriage the will was revoked. Order denying the admission of the will to probate was entered.

May Red Eagle and Victor Griffin Red Eagle, by J. M. Humphreys, his guardian ad litem, gave notice of appeal to the District Court on both questions of law and of fact.

Appeal bond was signed and filed by May Red Eagle, by J. M. Humphreys, her attorney, and Victor Griffin Red Eagle, by J. M. Humphreys, his guardian ad litem, as principals, and United States Fidelity and Guaranty Company, as surety.

After transcript was filed in the District Court, motions were filed by some of the protestants to dismiss the appeal. One of the grounds was that Bessie Rusk Crawford did not join in the notice of appeal. Another was that the bond was signed by J. M. Humphreys, an attorney of this state, and it was for that reason void.

These motions were overruled.

Counter motions to strike the motions to dismiss were filed by proponents upon the alleged ground that the parties filing said motions were not shown to be persons entitled to so inherit from Mo-se-che-he.

Trial of the issues was had in the District Court resulting in findings and order substantially the same as in the County Court. The order denying the will to probate is upon the sole ground that the will executed by Mo-se-che-he while a single woman was revoked by her subsequent marriage to Fierro.

Proponents appeal and filed motions to dismiss the appeal upon the same grounds as such motions contained in the District Court.

The motions to dismiss in this court are assailed by proponents on the same grounds as were like motions in the District Court.

The principal question involved is whether the will executed by Mo-se-che-he while a single woman was revoked by her subsequent marriage.

In view of the conclusions we have reached on this principal question as hereinafter set out, we deem it unnecessary to consider the motions to dismiss the appeal and counter motions to strike. Dismissal of the appeal in the District Court or in this court would leave the findings and order of the County Court in full force. Affirmance of the order of the District Court would have the same effect. We prefer to decide the principal question on its merits rather than on the technical questions raised in the motions.

The trial court found that the will was executed in due form; that Mo-se-che-he was mentally competent and that there was no duress, coercion nor undue influence. These findings are supported by the evidence.

The Court further found as follows:

"*** that upon what might be designated as the merits the will in contest would be entitled to be admitted to probate if no other questions were involved.

But, the court further finds as a matter of fact, and as a matter of law that on the 23rd day of March, 1934, the claimant Jack Rogers, alias Albert Fierro, obtained an annulment of a marriage which had been previously consummated between himself and one Hattie Logan Davis; that at that time the court had jurisdiction of the parties to annul said marriage; that the annulment of the marriage was a legal proceeding, and said marriage was annulled in said proceeding, and declared void.

The court further finds that thereafter on the 19th day of May, 1934, Jack Rogers, alias Albert Fierro, claimant herein and said Mo-se-che-he, Osage Allottee No. 34, the deceased, were legally married and lived together as husband and wife up to and until the death of said Mo-se-che-he.

The court further finds that said Mo-se-che-he was an unmarried woman, at the time of the execution of the will here in contest, and remained an unmarried woman until May 19, 1934, when she married Jack Rogers, alias Albert Fierro, as aforesaid; that the marriage of said Mo-se-che-

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