In re Palmer's Will

• Decision Date: 28 June 1935
• Docket Number: No. 4284.,4284.
• Citation: 11 F. Supp. 301
• Parties: In re PALMER'S WILL.
• Court: U.S. District Court — Eastern District of Oklahoma

11 F. Supp. 301

In re PALMER'S WILL.

No. 4284.

District Court, E. D. Oklahoma.

June 28, 1935.

W. E. Utterback, of Durant, Okl., and E. Moore, of Coalgate, Okl., for W. C. Burge's estate.

Denver N. Davison, of Ada, Okl., for Wilson and Elias Palmer.

D. D. Brunson, of Ada, Okl., for Watson Palmer.

C. A. Summers and C. W. Miller, both of Muskogee, Okl., for United States.

WILLIAMS, District Judge.

W. C. Burge, as petitioner, on December 23, 1930, filed a petition in the county court of Coal county, Okl., with an alleged will of Hicks Palmer, as testator, attached, praying that same be admitted to probate and letters testamentary issued thereon to him, due notice as provided by law having been given all parties having interest in said matter. The Journal Entry recites: "This cause came on to be heard on special setting this 10th day of February, 1931, same being a regular probate day of the County Court of Coal County, Oklahoma. The petitioner appeared in person and by attorneys, E. Moore and Denver N. Davison. * * *"

Said Hicks Palmer, a full-blood Choctaw Indian, duly enrolled upon the final approved rolls of said tribe opposite Roll No. 11518, died in Coal county, state of Oklahoma, December 21, 1930, leaving surviving neither wife or issue or descendants, nor father or mother, and no brothers or sisters or their descendants surviving, other than one full brother, Watson Palmer, a full-blood Choctaw Indian, enrolled on the final approved rolls of the Five Civilized Tribes opposite Roll No. 11517, his next of kin and sole and only heir, and upon his death the said Watson Palmer inheriting all of the estate of the said Hicks Palmer, consisting of a restricted allotment and other restricted lands and restricted funds in the hands of the superintendent for the Five Civilized Tribes, unless the alleged will offered for probate supersedes such inheritance. The proponent, W. C. Burge, one of the principal beneficiaries, is named therein not only as executor, but also designated therein as trustee of a large part of the estate devised to two other parties. Notice having been given as required by law to all parties concerned, the said Watson Palmer filed his contest and protest to the admission of said will to probate, and, upon a hearing of same in the county court of Coal county, on February 10, 1931, same was admitted to probate. Thereafter, the said contestant or protestant, Watson Palmer, duly prosecuted an appeal from said action of the county court to the district court of Coal county, Okl., where, under the laws of Oklahoma, said appeal would be tried de novo, and such case be of purely equitable cognizance. In re Wak-kon-tah-he-um-pah's Estate, 109 Okl. 126, 129, 234 P. 210, and Welch v. Barnett, 34 Okl. 166, 125 P. 472. Afterwards, upon notice, as required by law, the United States government, as guardian of its Indian ward in such matter, through its proper representative, by virtue of an Act of Congress of April 12, 1926 (44 Stat. 239), appeared and became a party thereto, and in due course, by virtue of section 3 thereof, caused said proceeding to be removed from the district court of Coal county, Okl., to the United States District Court for the Eastern District of Oklahoma.

Section 3, Act of said Congress approved April 12, 1926 (44 Stat. 239, 240), in part provides: "Any one or more of the parties to a suit in the United States courts in the State of Oklahoma or in the State courts of Oklahoma to which a restricted member of the Five Civilized Tribes in Oklahoma, or the restricted heirs or grantees of such Indian are parties, as plaintiff, defendant, or intervenor, and claiming or entitled to claim title to or an interest in lands allotted to a citizen of the Five Civilized Tribes or the proceeds, issues, rents, and profits derived from the same, may serve written notice of the pendency of such suit upon the Superintendent for the Five Civilized Tribes, and the United States may appear in said cause within twenty days thereafter, or within such extended time as the trial court in its discretion may permit, and after such appearance or the expiration of said twenty days or any extension thereof the proceedings and judgment in said cause shall bind the United States and the parties thereto to the same extent as though no Indian land or question were involved."

The said full brother, Watson Palmer, full-blood Choctaw, and restricted heir of such Indian (Hicks Palmer), claiming title to said restricted lands allotted to such restricted Indian (Hicks Palmer) and the restricted proceeds, issues, rents, and profits derived from the same and such other restricted lands, caused to be served a written notice of such pendency in the said district court of such contest as to the probating of such will upon the superintendent to the Five Civilized Tribes, and within twenty days thereafter and such extended time as the trial court in its discretion permitted, the United States intervened and had such matter removed to this court. Motion to remand was overruled on July 18, 1933.

The valid execution of said will would operate as an alienation. Taylor v. Parker, 235 U. S. 42, 35 S. Ct. 22, 59 L. Ed. 121; Id., 33 Okl. 199, 126 P. 573; Hayes v. Barringer (C. C. A.) 168 F. 221; Id., 7 Ind. Terr. 697, 104 S. W. 937. The probating of said will involved the title to or interest in the restricted allotment and such other restricted lands of a restricted Indian and to the restricted proceeds, issues, rents, and profits derived therefrom belonging to a restricted Indian of the Five Civilized Tribes in Oklahoma.

Prior to said Act of April 12, 1926, no provision of law authorized the making of the United States a party to a suit to quiet title or determine questions as to such restricted lands of the Five Civilized Tribes. In actions prosecuted to final decree or judgment as to such matter in a state court without the United States of America as a party thereto, its right thereafter to maintain a suit to enforce such restriction was not affected. In Sunderland v. U. S., 266 U. S. 226, 45 S. Ct. 64, 69 L. Ed. 259, it was held: "The United States is not bound by a decree of a state court, to which it was not a party, quieting title to restricted Indian land against the Indian in favor of his attempted grantee, but may have both the conveyance and the decree set aside by suit in the federal court." See to the same effect Privett v. U. S., 256 U. S. 201, 41 S. Ct. 455, 65 L. Ed. 889, and United States v. Smith (C. C. A. 8) 288 F. 356. The conclusive finality of a judgment or decree of a state or federal court without the United States as a party thereto, involving the title to the restricted lands and allotment of such restricted Indian, had been a matter of much controversy. See Vinson v. Graham (C. C. A.) 44 F.(2d) 772; Stewart v. Keyes, 167 Okl. 531, 30 P.(2d) 875; Id., 55 S. Ct. 807, 79 L. Ed. 1507. The question as to the conclusiveness of the judgment or decree in such matters ultimately led to the enactment by the Congress of the United States of the said Act of April 12, 1926, chapter 115 (44 Stat. 239), providing for the United States government to be made a party so that it could be concluded thereby. Restrictions under section 1, Act May 27, 1908 (35 Stat. 312), as limited or qualified by section 9 thereof (35 Stat. 315), were extended by section 1 of said Act of April 12, 1926 (44 Stat. 239), so as to cover conveyances by such full bloods as to interest in certain allotted lands acquired not only by inheritance but also by devise.

The jurisdiction of this court in this case appears to be not only within the purpose but also within the letter of said Act of April 12, 1926 (44 Stat. 239), entitled, "An Act To Amend section 9 of the Act of May 27, 1908," which had the effect of enlarging the jurisdiction of the United States District Courts within the bounds of the Five Civilized Tribes in cases in which the title to such restricted Indian lands and funds had become involved, and a restricted member of the Five Civilized Tribes in Oklahoma or restricted heir of such Indian is a party thereto, claiming or entitled to claim title to or an interest therein.

In United States v. Mid-Continent Petroleum Corporation (C. C. A.) 67 F.(2d) 37, 42, decided on September 1, 1933, it is said: "The Hosey-Guthrie Group contend that the case was improperly removed, and that the Federal court is without jurisdiction. They assert that on the death of Ullie Eagle the land in question ceased to be restricted, and therefore that no restricted member of the Five Civilized Tribes in Oklahoma, or restricted heir or grantee of such Indian was party as `plaintiff, defendant, or intervener * * * claiming * * * title to or an interest in lands allotted to a citizen of the Five Civilized Tribes.' It was alleged in the notice and in the petition for removal that a large number of persons who were either parties defendant or interveners were restricted members of the Five Civilized Tribes and claimed some right, title, and interest in such land. This allegation is not challenged either by pleading or proof. At the time of the filing of the petition for removal, Lizzie Tiger née Gambler, and Isla Wolf were parties to the action. The notice and petition for removal alleged that they were restricted members of the Five Civilized Tribes. The proof shows that both were enrolled full-blood citizens of the Creek Tribe. Lands passing to full-blood heirs remain under qualified restrictions by virtue of section 9 of the Act of May 27, 1908 (35 Stat. 312, 315); Parker v. Richard, 250 U. S. 235, 39 S. Ct. 442, 63 L. Ed. 954; United States v. Gypsy Oil Co. (C. C. A. 8) 10 F.(2d) 487; Holmes v. United States (C. C. A. 10) 53 F.(2d) 960. Thus it will be seen that there were parties to the action who were clearly within the class designated in section 3, supra."

It is further said: "The Hosey-Guthrie Group assert that section 3, supra, does not of...