In re Pryor's Estate, Case Number: 31066

• Decision Date: 18 February 1947
• Docket Number: Case Number: 31066
• Citation: 1947 OK 48,199 Okla. 17,181 P.2d 979
• Parties: In re PRYOR'S ESTATE
• Court: Oklahoma Supreme Court

1947 OK 48

181 P.2d 979

199 Okla. 17

In re PRYOR'S ESTATE

Case Number: 31066

Supreme Court of Oklahoma

Decided: February 18, 1947

Syllabus

¶0 1. DESCENT AND DISTRIBUTION - Estate passing to minor child no less complete than that passing to adult heir - Effect of statutory provision relating to descent of ancestral property owned by minors.

Upon the death of an intestate, the property then owned by the decedent vests immediately in his or her heirs at law, and the estate passing to a minor child of such decedent is no less complete than that passing to an adult heir, and the provisions of subdivision 7 of section 213, 84 O. S. 1941, relating to the descent of ancestral property owned by minors, applies solely in the matter of descent and distribution thereof, and neither detracts from the extent of nor imposes a condition on the estate held in ownership by such minor as heir.

2. INDIANS - Descent of estate under Osage Allotment Act where decedent left no issue nor husband nor wife.

By section 6 of the Osage Allotment Act Congress adopted all the succession laws of Oklahoma Territory with the exception that it provided therein, for the purpose of effectively amending subdivision 2, section 6895, Statutes of Oklahoma 1903, as applied to estates of Osage Indians, that "where the decedent leaves no issue nor husband nor wife, in which case said lands, moneys and mineral interests must go to the mother and father equally." This provision was inserted for the purpose only of changing the descent of estates falling within the purview of subdivision 2, supra, and does not apply to ancestral estates contemplated by subdivision 7 of said section 6895, which was in effect at the time of the enactment of the Allotment Act.

3. SAME - Property constituting ancestral estate - Rents and profits from such property not ancestral in character.

Osage headrights, building and loan stock and other securities, land received by partition of ancestral land though a part thereof is paid for out of ancestral funds, and moneys received, directly and immediately from the decedent, constitute ancestral estate. However, accruals or accumulations thereto, such as rents, profits or interest thereon, constitute acquisitions by the heir by reason of his ownership and are not ancestral in character.

4. SAME - Descent of estate of minor full-blood Osage Indian dying intestate, unmarried and without issue - Descent of ancestral estate and of portion not ancestral.

Where a minor full-blood Osage Indian, unmarried and without issue, dies intestate, his ancestral estate descends under subdivision 7, sec. 213, 84 O. S. 1941, which relates only to ancestral property, to his brothers and sisters or their issue, and that portion of his estate that is not ancestral descends to his surviving parents or parent under section 6 of the Osage Allotment Act or subdivision 2, 84 O. S. 1941, as amended in 1909.

Appeal from District Court, Osage County; Hugh C. Jones, Judge.

In the matter of the estate of Woodrow Pryor, deceased. From judgment distributing estate to Susie Pryor Craft and others, Martha Pryor, mother of decedent, appeals. Affirmed in part; reversed in part.

Wm. S. Hamilton and Matthew J. Kane, both of Pawhuska, for plaintiff in error.

Chas. R. Gray, W.N. Palmer, Louis O. Fink, MacDonald & Files, and Tillman & Tillman, all of Pawhuska, and G.K. Sutherland and O.L. Barlow, both of Hominy, for defendants in error.

ARNOLD, J.

¶1 Woodrow Pryor, an unallotted fullblood member of the Osage Indian Tribe, died intestate in Osage county, Okla., on October 20, 1938. At the time of his death he was 19 years of age. He had never been married. Surviving him as his next of kin was his mother, Martha Pryor, Osage Allottee, No. 99, a living half sister, Susie Pryor Craft, daughter of Antwine Pryor, the three minor children of a full brother, Alfred Pryor, who died intestate on October 21, 1936, Alfred Antwine Pryor, Mary Martha Pryor and Irene Marcelle Pryor, and a fullblood brother, Elmer Pryor, an unallotted Osage who died on May 17, 1939, after the death of the said Woodrow Pryor.

¶2 There is no controversy as to the facts. It was stipulated that the deceased inherited from his father, Antwine Pryor, an undivided interest in certain real estate, a fractional headright in the amount of 191/270th and building and loan stock; that except for accumulations thereto this was all the property of which he died seized; that the above-named half sister and the two brothers were children of his father, Antwine Pryor; that Elmer Pryor died after the death of Woodrow Pryor leaving surviving him a minor child, Julia Addie Pryor, and two claimants, each aserting to be the surviving widow, namely, Oliva McClure Pryor and Ola May Pryor, nee Davis; that in the matter of the estate of his father, Antwine, Pryor, there was distributed to the credit of the said Woodrow Pryor the sum of $2,605.38 designated as trust fund and the sum of $22,065.44 designated as surplus funds; these funds were held by the Osage Indian Agency; that in a partition suit involving the real estate left by his father, Antwine Pryor, the 320 acres involved was distributed to Woodrow Pryor; in order to equalize the value thereof among the various participants in the division of said land $1,101.38 was paid from the funds of Woodrow Pryor to the other interested parties. It was further stipulated that at the time of the death of Woodrow Pryor there stood to his credit in the Osage Indian Agency trust funds the sum of $2,668.64 and surplus funds in the amount of $23,588.36, and securities in the aggregate sum of $3,405.05; that on February 11, 1942, the trust fund amounted to $2,668.24, the surplus fund $28,456.30 and the securities $3,409.81.

¶3 The county court held that the property, funds and income descended from the father, Antwine Pryor, and that the estate should be distributed under subdivision 7, section 213, 84 O.S. 1941; that the mother, Martha Pryor, was not entitled to inherit any part or portion of the estate, and distributed same as follows: An undivided one-third interest to the half sister, Susie Pryor Craft, an undivided one-third interest to the three children of the full brother, Alfred Pryor, and the remaining one-third interest to the estate of Elmer Pryor, a full brother, whose estate was pending upon appeal in the district court of Osage county awaiting final judgment and settlement as to the true heirs of the said Elmer Pryor, deceased.

¶4 The mother, Martha Pryor, appealed to the district court of Osage county. After trial de novo, on the 12th day of February, 1942, the district court distributed the estate of Woodrow Pryor in the same manner as it had been distributed by the county court.

¶5 Martha Pryor appealed.

¶6 It is first contended:

"The property of a deceased member of the Osage Tribe of Indians who dies intestate, leaving no issue nor husband nor wife, goes to the parents equally, if both are living; if one parent be dead it all goes to the living parent."

¶7 Section 6 of the Osage Allotment Act, enacted by the Congress June 28, 1906 (34 St. L. 539), provides:

"That the lands, moneys and mineral interests, herein provided for, of any deceased member of the Osage Tribe shall descend to his or her legal heirs, according to the laws of the Territory of Oklahoma or the state in which said reservation may be hereinafter incorporated except where the decedent leaves no issue nor husband nor wife, in which case said lands, moneys and mineral interests must go to the mother and father equally."

¶8 Subdivision 2, section 6895, Statutes of Oklahoma 1903, in force at the time of the enactment of the Allotment Act, in part, provided:

"If decedent leave no issue, nor husband nor wife, the estate must go to the father."

¶9 In 1909 this part of the subdivision was amended to read as follows:

"If decedent leave no issue, nor husband nor wife, the estate must go to the father or mother, or if he leave both father and mother, to them in equal shares."

¶10 This provision of subdivision 2 has not been amended or changed since that time and now appears as a part of subdivision 2 of section 213, 84 O.S. 1941.

¶11 Subdivision 7 of section 213, supra, was enacted in 1890 and has not been changed. It provides:

"If decedent leave several children, or one child and the issue of one or more children, and any such surviving child dies under age, and not having been married, all the estate that came to the deceased child by inheritance from such decedent, descends in equal shares to the other children of the same parent, and to the issue of any such other children who are dead, by right of representation".

¶12 The appellant, Martha Pryor, takes the position that the exception in section 6 of the Allotment Act applies to all property of deceased Osage Indians who were never married regardless of the source of title; that by reason thereof subdivision 7, supra, has no application to estates of deceased Osage Indians. In other words, Congress adopted the law of descent and distribution of the State of Oklahoma and made such law applicable to the estates of deceased Osage Indians with the exception of the above-quoted part of said subdivision 2 and subdivision 7.

¶13 Congress retained control of the Indians and their tribal property and had the power to cast descent and control the devolution of their estates. The property of a deceased Indian, therefore, passes by virtue of the laws of the United States. See Childers v. Beaver, 270 U.S. 555, 70 L. Ed 730; Childers v. Pope, 119 Okla. 300, 249 P. 726.

¶14 By section 6, supra, Congress made the law of succession of the State of Oklahoma applicable to the estates of deceased Osage Indians except where the decedent left no issue nor husband nor wife. Later (37 St. L. p. 86, chap. 83, sec. 3) Congress conferred jurisdiction on the county courts of this state to determine heirs and distribute the estates of deceased Osage Indians. Congress by said acts cast the...