In re Wo-gin-up's Estate

• Decision Date: 02 August 1920
• Docket Number: 3454
• Citation: 57 Utah 29,192 P. 267
• Parties: In re WO-GIN-UP'S ESTATE
• Court: Utah Supreme Court

192 P. 267

57 Utah 29

In re WO-GIN-UP'S ESTATE

No. 3454

Supreme Court of Utah

August 2, 1920

On Petition for Rehearing September 8, 1920.

Appeal from First District Court, Box Elder County; J. D. Call Judge.

In the matter of the estate of Wo-gin-up. From a decree of distribution in favor of See-va-pitche, Dick Crum and one Andzi, claiming to be widow of deceased, appeal.

REVERSED and REMANDED, with directions.

Le Roy B. Young, of Brigham City, for appellant Andzi.

George Halverson, of Ogden, and Frank Curran, of Reno, Nev., for appellant Crum.

Chez &amp Barker, of Ogden, for respondent See-va-pitche.

GIDEON J. CORFMAN, C. J., and FRICK, WEBER, and THURMAN, JJ., concur.

OPINION

GIDEON, J.

This is an appeal from a decree of distribution of the estate of an Indian, Wo-gin-up, who died intestate in Box Elder county, this state, on or about February 11, 1904. The appeal is by two separate claimants.

The deceased left real property in said county valued, as shown by the inventory, at $ 4,500. On May 19, 1917, letters of administration were issued in said estate, and thereafter, on July 26, 1918, the administrator filed a final report and petition for distribution. In that petition the administrator reported that the deceased left a widow named See-va-pitche; that as such she was entitled to receive the entire estate. Thereupon one Andzi contested the claim of the administrator that See-va-pitche was the surviving widow of the deceased, and in her petition claimed that she is the surviving widow of Wo-gin-up and as such is entitled to receive the property of the estate. Andzi is one of the appellants here. The appellant Dick Crum also contested the claim made by the administrator, and denied that either of the other claimants is the surviving widow of the deceased. He asserted that if either had ever been lawfully married to the deceased such marriage or marriages had been dissolved during the life of Wo-gin-up.

It is agreed that the appellant Crum is a nephew, being the son of a sister of the deceased, and that if neither of the other claimants is entitled to the estate he is the sole heir.

The respondent See-va-pitche also filed a petition, in which she claimed to be the widow of the deceased, and asked that the recommendations and report of the administrator be approved, and that she be decreed the land belonging to the estate.

The issues presented by these different petitions, contests, and objections were tried to the court, and findings made to the effect that the petitioner See-va-pitche is the widow of the deceased. The court's conclusion of law is that See-va-pitche is entitled to the estate. Judgment was entered accordingly. From that judgment or decree of distribution the alleged widow Andzi and the nephew Crum appeal.

Before considering the merits it is necessary to decide a motion filed by respondent See-va-pitche to strike the bill of exceptions from the record. One of the grounds of said motion is that the court was without jurisdiction to settle the bill on December 22, 1919, the date which the court's certificate bears.

Judgment was rendered in the case on August 1, 1919. Motions for a new trial were made by both appellants. These motions were denied on September 15, 1919. Notice of the order overruling the motion was served upon counsel for appellant Andzi on the same day, and on the 17th of that month on counsel representing appellant Crum. It appears in the bill of exceptions that on the 7th day of October the court granted appellants thirty days additional time in which to prepare and serve a proposed bill of exceptions; that again on the 31st day of October, 1919, a further order was made, granting appellants twenty days additional time. The proposed bill of exceptions was served upon the attorneys for the respondent on the seventh day of November, 1919. It will thus be seen that the proposed draft was served within the time fixed by the orders of the court extending such time. The contention that because the court neglected to attach its certificate until the twenty-second of December of that year cannot avail the respondent, or defeat the right of appellants to be heard. The motion to strike will be denied.

The court, in substance, found: The deceased died in Box Elder county, Utah in March, 1904. At the time of his death, and during his entire life, he was a member of the Shoshone Tribe of Indians, and with them roamed at various times through the northern part of Utah Western Wyoming, Southern Idaho and Nevada. He was married to an Indian woman known as Andzi about the year 1875, and they lived as husband and wife until about the year 1885, when deceased went to the state of Nevada, and during his absence his wife Andzi married another Indian. By these acts the deceased, Wo-gin-up, and Andzi, according to the established rules, customs, practices, and tribal laws of such Indians, became divorced, and such divorce was valid and legal. During the time Wo-gin-up and Andzi lived together as husband and wife the deceased also lived with another Indian woman, but that woman died prior to the year 1885, and before the deceased was married to the respondent See-va-pitche. Some time in the year 1885, upon the return of Wo-gin-up from Nevada, he was married in Cache county, Utah to the respondent See-va-pitche, and from that time on until the date of his death they lived and cohabited together. Such marriage was, according to the established rules, customs, practices, and laws of the said Shoshone Tribe of Indians, a valid and legal marriage, and continued to be such until his death. After the marriage of the deceased to See-va-pitche in 1885 he contracted no other or additional marriage. Neither Wo-gin-up nor See-va-pitche did anything during that time that, according to the customs, rules, practices, and laws of the Indian tribe, would effectuate a divorce.

The court's sixth and seventh findings are as follows:

"(6) That the established and recognized customs, rules, practices, and laws of the Shoshone Tribe of Indians during the period herein covered, and until after the death of Wo-gin-up, to wit, from 1875 to 1904, was that they may marry and divorce each other at the pleasure of the parties thereto; that no formal contract or ceremony was necessary, and that separation by mutual consent, or where one party leaves and marries another, is an absolute divorce, and the other party is thereafter free to form other marital alliances; that the Shoshone Tribe of Indians at Washikee, including Wo-gin-up, Andzi, Bowmaker's daughter Idea-up, alias Nan-zi-hu, Washigo, and See-va-pitche, observed said rules, customs, and practices of their tribe of Indians during the time herein stated.

"(7) That the band of Shoshone Indians located at Washikee, of which Wo-gin-up, Andzi, Bowmaker's daughter, alias Idea-up, alias Nan-zi-hu, Washigo, and See-va-pitche were members, kept up and maintained their Indian customs and tribal relations during all of the period from Wo-gin-up's first marriage to Andzi up to his death in 1904; that during this period the said Indians at intervals roamed, hunted, and fished through the country in bands under their recognized tribal leaders, and while they had tents and houses to live in at Washikee they lived as a community and not in severalty, not as individual families; and that during all of said period they continued their tribal relations, and did not assume, practice, or exercise the duties and privileges of citizenship, and did not pay taxes."

In addition it conclusively appears that in or about the year 1877 the deceased, Wo-gin-up, applied to the general government for a homestead in Box Elder county; that subsequently, on May 31, 1884, he received a patent for the land described in his homestead application, being the land now in question. The provisions of section 15 of the congressional act of March 3, 1875 (U. S. Comp. St. section 4611), under and by virtue of which the deceased applied for the homestead, so far as material here, are as follows:

"That any Indian born in the United States, who is the head of a family, or who has arrived at the age of twenty-one years, and who has abandoned, or may hereafter abandon, his tribal relations, shall, on making satisfactory proof of such abandonment, under the rules to be prescribed by the Secretary of the Interior, be entitled to the benefits of an act entitled 'An act to secure homesteads to actual settlers on the public domain,' approved May twentieth, eighteen hundred and sixty-two, and all acts amendatory thereto: * * * Provided, that any such Indian shall be entitled to his distributive share of all annuities, tribal funds, lands, and other property, the same as though he had maintained his tribal relations; and any transfer, alienation, or incumbrance of any interest he may hold or claim by reason of his former tribal relations shall be void."

If the deceased, Wo-gin-up, at the time of his claimed divorce from the appellant Andzi and his marriage to the respondent See-va-pitche, was not subject to the laws and customs of the tribe of Shoshone Indians, the divorce and subsequent marriage were void, and his relation with See-va-pitche thereafter was adulterous, and conferred upon her no right of inheritance. Norton v. Tufts, 19 Utah 470, 57 P. 409; Hilton v. Roylance, 25 Utah 129, 69 P. 660, 58 L. R. A. 723, 95 Am. St. Rep. 821; Palmer v. Palmer, 26 Utah 31, 72 P. 3, 61 L. R. A. 641, 99 Am. St. Rep. 820.

It is contended by counsel for appellant Andzi that, by reason of the provisions of the act of Congress under which the homestead application was made and the patent subsequently issued, before the deceased could make such application or receive a patent, the Secretary of the Interior must have...