In re Noel's Heirship, Case Number: 20452

Citation156 Okla. 177,1932 OK 258,10 P.2d 259
Decision Date05 April 1932
Docket NumberCase Number: 20452
PartiesIn re NOEL'S HEIRSHIP.
CourtOklahoma Supreme Court

1932 OK 258
10 P.2d 259
156 Okla. 177

In re NOEL'S HEIRSHIP.

Case Number: 20452

Supreme Court of Oklahoma

Decided: April 5, 1932


SYLLABUS

¶0 1. Appeal and Error--Review--Sufficiency of Evidence--Determination of Heirship of Deceased Indian Allottee.

A judgment of a district court after a trial de novo on appeal from an order of a county court determining heirship, under the provisions of the Act of Congress of June 14, 1918, 40 Stat. 606, will not be disturbed by this court, unless it is against the clear weight of the evidence. If it is against the clear weight of the evidence, it will be set aside by this court and the district court will be ordered to enter a judgment in conformity with the weight of the evidence.

2. Indians--Courts--Determination of Heirship of Deceased Allottee Under Federal Act--Jurisdiction of District Court on Appeal From County Court.

Under the provisions of the Act of Congress of June 14, 1918, 40 Stat. 606, and the applicable statutes of Oklahoma, a district court, on an appeal from an order of a county court determining the heirship of a deceased allottee of the Five Civilized Tribes of Indians, who died leaving restricted heirs, may, on a trial de novo, determine who were the heirs of the deceased Indian allottee.

3. Same--"Final Order" of County Court Concluding Heirs.

An order of a county court determining the heirship of a deceased allottee of the Five Civilized Tribes of Indians, who died leaving restricted heirs, is not a final order until the expiration of the time for taking an appeal therefrom, and, if an appeal is taken therefrom, it is not a final order until the order of the district court made on appeal therefrom has become final.

4. Same.

The final order referred to in the Act of Congress of June 14, 1918, 40 Stat. 606, is an order of the county court having jurisdiction, determining the heirship of the deceased allottee of the Five Civilized Tribes of Indians, who died leaving restricted heirs, from which no appeal was taken to the district court, the time for taking such an appeal having expired, or an order of the district court, made on an appeal of such an order, which has become final.

5. Same--Heirs not Appearing Within Six Months After Final Order Concluded.

Under the provisions of the Act of Congress of June 14, 1918, 40 Stat. 606, a person served by publication may appear in the county court and move to be heard in the determination of heirship proceedings at any time within six months from the date of a final order determining the heirship. If a person served by publication does not appear in the county court and move to be heard in the determination of heirship proceedings at any time within six months from the date of the final order, he is concluded by the final order and his right to be adjudged to be an heir of the deceased Indian allottee is lost by his failure to assert his right within the time authorized by Congress for the assertion thereof.

6. Same--Rights of Heir not Defeated by Sale of Property Within Six Months Period.

The provisions of the Act of Congress of June 14, 1918, 40 Stat. 606, authorizing a person served by publication to appear and move to be heard within six months from the date of the final order, may not be defeated by a sale of the property of the deceased Indian allottee within the six months period.

7. Evidence--Judicial Notice--Choctaw Indian Customs.

This court cannot take judicial knowledge of the fact, if it is a fact, that Choctaw Indians refer to "cousins" as "brothers" or "sisters."

8. Evidence--Weight of Evidence of Pedigree.

Evidence of pedigree is recognized by this court and must be considered in weighing the evidence in a case.

9. Judgment Determining Heirship not Sustained.

Record examined, and held: The judgment of the trial court determining heirship is against the clear weight of the evidence.

Appeal from District Court, Pittsburg County; Harve L. Melton, Judge.

Proceeding by Emaline Adams and others to determine heirs of Rena Noel, deceased. Petition by Willis Watson and others to vacate decree. From adverse judgment, petitioners appeal. Reversed and remanded, with directions.

R. L. Disney, for petitioners.

Wilkinson & Hudson, I. P. Keith, and D. D. Brunson, for respondents.

ANDREWS, J.

¶1 This is an appeal from a judgment of the district court of Pittsburg county rendered in a proceeding for the determination of the heirship of Rena Noel, deceased, on a trial de novo on an appeal from the county court of Pittsburg county.

¶2 Rena Noel was a Choctaw Indian allottee. She was the illegitimate child of Georgia Ann Noel and she had not been acknowledged or adopted by her father. She died intestate in 1918, without lawful issue, leaving no brothers or sisters of whole or half blood, no husband, no mother, no grandfather or grandmother, and no uncles or aunts. Her mother had died in 1912 and the others had died prior to the death of the allottee.

¶3 It was agreed by the parties hereto that, under the provisions of section 11304, C. O. S. 1921, the allotment of Rena Noel descended to the heirs of her mother. Her mother was Georgia Ann Noel.

¶4 The issue in the case was: Who were the next of kin of Georgia Ann Noel, under the provisions of section 11301, C. O. S. 1921, which is the applicable statute? Bates v. Huddleston, 146 Okla. 259, 293 P. 1047.

¶5 The mother of Georgia Ann Noel was Lucy Noel, who thereafter married Wilson Frazier, and who for convenience hereinafter will be referred to as Lucy Frazier. Her name prior to the time that she married Johnson Noel was a collateral issue in the case.

¶6 It was agreed that at the death of Rena Noel, Johnson Noel's family was represented by Emaline Adams, the daughter of a sister of Johnson Noel, and Jennie Kemp, the daughter of a brother of Johnson Noel. Since the institution of the proceeding, Jennie Kemp died, leaving surviving her as her heirs a son, Mullen Kemp, and a husband, Stanton Kemp.

¶7 Emaline Adams, Mullen Kemp, and Stanton Kemp hereinafter will be referred to as the respondents. The purchasers of the land, who also appeared herein as respondents, hereinafter will be referred to as the purchasers of the land. Willis Watson, Richardson Watson and Elizabeth Ludlow, when hereinafter referred to collectively, will be referred to as the petitioners.

¶8 Under the agreement made, there was left for determination only the question of who, if anyone, constituted the next of kin of Georgia Ann Noel through Lucy Frazier, her mother.

¶9 It was contended by the petitioners that Willis Watson, Richardson Watson, and Elizabeth Ludlow were the surviving relatives and next of kin of Georgia Ann Noel through her mother, Lucy Fraizer. The record shows that Willis Watson and Richardson Watson were the sons of Robinson Watson, and that Elizabeth Ludlow was the daughter of James Jones.

¶10 The petitioners contend that Robinson Watson and James Jones were half-brothers of Lucy Frazier through a common mother, Alehama. If that is so, the petitioners are in equal degree of kin to Georgia Ann Noel with the respondents through ancestors in equal degree removed from Georgia Ann Noel. Bates v. Huddleston, supra. That contention is denied by the respondents, who contend that Robinson Watson and James Jones were not half-brothers of Lucy Frazier through a common mother, Alehama, and that the mother of Lucy Frazier was a sister of Alehama. If that is so, the petitioners claim through an ancestor of Georgia Ann Noel more remote than the ancestor through whom the respondents claim, and, under the provisions of section 11301, supra, as construed in Bates v. Huddleston, supra, the respondents are the next of kin of Georgia Ann Noel to the exclusion of the petitioners.

¶11 Thus it will be seen that this court must determine whether or not the judgment of the district court of Pittsburg county holding that Alehama was not the mother of Lucy Frazier is against the clear weight of the evidence. Griffith v. Scott, 128 Okla. 125, 261 P. 371; Moorman v. Pettit, 119 Okla. 22, 248 P. 838; Mattox v. Mattox, 129 Okla. 301, 264 P. 898. For that purpose the evidence will be reviewed, but a jurisdictional question will be determined first. The facts with reference thereto will be set out.

¶12 An application on behalf of the respondents to determine the heirship of Rena Noel was filed in the county court of Pittsburg county on the 30th day of August, 1919. It was therein alleged that the respondents were the sole and only heirs at law and next of kin of Rena Noel. Service by publication was therein made which ran to "all persons claiming heirship, ownership or interest in the estate of Rena Noel, deceased." There was no personal service upon any of the petitioners herein and none of them appeared therein. Wilson Frazier appeared therein and claimed to be the father of Rena Noel and that he had acknowledged her as his child. The cause was heard by that court on the 19th day of January, 1920, and on that date that court found against the contention of Wilson Frazier and for the respondents and that they were the next of kin of Rena Noel. Wilson Frazier appealed from the order to the district court of Pittsburg county. The cause was tried therein de novo on the 15th day of April, 1920. The district court denied the claim of Wilson Frazier and found that the respondents were the next of kin of Rena Noel. On September 1, 1920, Willis Watson and Richardson Watson, by the United States Probate Attorney as their attorney, filed in the county court a petition to vacate the decree of that court of January 19, 1920. On September 21, 1920, an amended petition therefor was filed by them through the same attorney. Nothing further seems to have been done until after the 12th day of October, 1925, when, at the instance of R. L. Disney, as attorney for Willis Watson and Richardson Watson, the county court set the amended petition for hearing on November 12, 1925. The record shows nothing done thereafter...

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