Jackson v. Thompson

• Decision Date: 13 April 1905
• Citation: 80 P. 454,38 Wash. 282
• Parties: JACKSON v. THOMPSON et al.
• Court: Washington Supreme Court

80 P. 454

38 Wash. 282

JACKSON v. THOMPSON et al.

Supreme Court of Washington

April 13, 1905

Appeal from Superior Court, Snohomish County; John C. Denney, Judge.

Action by Dick Jackson against William A. Thompson, administrator with the will annexed of John Puyallup, deceased, and others to contest the will of deceased. From a judgment for defendants, plaintiff appeals. Reversed.

George H. Funk, for appellant.

Merrick & Mills, for respondents.

DUNBAR J.

This is an action to contest the will of John Puyallup, brought by the appellant, who claims to be an heir at law of said John Puyallup. The respondents Ella Steve and George Sneatlum are devisees under the will of John Puyallup, executed on the 8th day of December, 1902, which will was duly admitted to probate, and the purpose of this action is to set aside the probating of this will. The will was proven as a nuncupative will, and concerning the manner of the proof there is no question raised. But it is the appellant's contention (1) that the decedent, John Puyallup, under the patent which was issued to him by the United States, and the treaties governing the patent, had no power to devise the land in question; and (2) that the will attempted to be sustained by respondents, being a nuncupative will, cannot operate upon the title to real estate. The land deeded by the decedent was upon the Tulalip Indian reservation, in the state of Washington; 30 acres having been willed to Ella Steve, and ten acres to George Sneatlum. In the year 1855 a treaty was made between the United States of America, acting through its agent, the Honorable Isaac I. Stevens, at that time Governor of the territory of Washington, and superintendent of Indian affairs for said territory, and the chiefs, delegates, and head men of the Duwamish and other allied tribes, then occupying the northwestern portion of what is now the state of Washington. 12 Stat. 927. This treaty was afterwards ratified and confirmed by the Senate and President of the United States, in the year 1859, and became a binding treaty. Article 7 of the treaty refers to and adopts article 6 of the treaty with the Omaha Indians (10 Stat. 1044), which is to the following effect: 'The President may hereafter, when in his opinion the interests of the territory shall require and the welfare of the said Indians be promoted, remove them from either or all of the special reservations hereinbefore made to the said general reservation, or such other suitable place within said territory as he may deem fit on remunerating them for their improvements.' It provides also that the President may, at his discretion, cause the whole or any portion of the lands thereby reserved to be surveyed into lots, etc., and assign the same to such individuals or families as are willing to avail themselves of the privilege and will locate thereon as a permanent home, on the same terms and subject to the same regulations as are provided in the sixth article of the treaty with the Omahas. Said sixth article also contains the following provision 'And he [the President] may prescribe such rules and regulations as will insure to the family in case of the death of the head thereof the possession and enjoyment of such permanent home and the improvements thereon; and the President may at any time in his discretion, after such person or family has made a location upon the land assigned for a permanent home, issue a patent to such person or family for such assigned land, conditioned that the tract shall not be aliened or leased for a longer term than two years, and shall be exempt from levy, sale, or forfeiture; which conditions shall continue in force until a state Constitution, embracing such lands within its boundaries shall have been formed and the Legislature of the state shall remove the restrictions.' The decedent was a full-blooded Indian, and his wife, Nancy, died prior to his death. It is conceded that the appellant is a relative, and heir at law of the decedent, and that the respondents claim under the nuncupative will only. The patent which was issued to John Puyallup, after reciting the treaty as a basis of its issuance, proceeds as follows: 'Now, know ye, that the United States of America, in consideration of the premises and in accordance with the directions of the president of the United States under the aforesaid sixth article of the treaty of the 16th day of March, Anno Domini 1854, with the Omaha Indians, has given and granted, and by these presents does give and grant, unto the said Kuds-cha-ons, or John Puyallup, as the head of the family, as aforesaid, and to his heirs, the tracts of land above described, but with the stipulation contained in the said sixth article of the treaty with the Omaha Indians that the said tracts shall not be aliened or leased for a longer term than two years, and shall be exempt from levy, sale or forfeiture, which conditions shall continue in force until a state constitution embracing such lands within its boundaries shall have been formed, and the legislature of the state shall remove the restrictions and no state legislature shall remove the restrictions without the consent of congress. To have and to hold the said tract of land with the appurtenances unto the said Kuds-cha-ons, or John Puyallup, as the head of the family, as aforesaid, and to his heirs forever, with the stipulation aforesaid.'

The facts as found by the court are simply that this land was patented to the decedent, and that he had willed the same to the respondents in this...