James v. Carson (In re Estate of Gray)

• Decision Date: 18 May 1926
• Docket Number: Case Number: 16233
• Citation: 1926 OK 475,119 Okla. 219,250 P. 422
• Parties: In re ESTATE of GRAY. JAMES v. CARSON, Adm'r, et al.
• Court: Oklahoma Supreme Court

1926 OK 475

250 P. 422

119 Okla. 219

In re ESTATE of GRAY.

JAMES v. CARSON, Adm'r, et al.

Case Number: 16233

Supreme Court of Oklahoma

Decided: May 18, 1926

Syllabus

¶0¶1 1. Descent and Distribution--Nephew as Sole Heir.

If a decedent leaves no issue, nor husband, nor wife, nor father, nor mother, nor brothers, nor sisters, but leaves surviving him, as his sole next of kin, a nephew, his estate descends under subsection 6, section 11301, C. O. S. 1921, to such nephew.

2. Domicile--Presumption of Continuance.

When the existence of a residence at a certain place at a certain time has been established, it will be presumed to have continued until the contrary appears.

3. Same--Effect of Court Order Permitting Guardian to Remove Invalid Ward to Foreign Sanitorium.

Under the provisions of section 6587, C. O. S. 1921, permission given the guardian of an incompetent ward, by the county court, to place his ward in a sanitorium located in another state for treatment of tuberculosis cannot result in a change of residence of said ward in the absence of any language therein tending to show that it was the intention of the court to authorize said guardian to fix a residence for his ward in said state.

4. Appeal and Error--Review--Evidence in Case of Equitable Cognizance.

In an action of equitable cognizance, where it is necessary to determine whether a marriage relation was actually entered into by the parties at common law, it is the duty of the Supreme Court on appeal to review the entire evidence and weigh the testimony of the witnesses, as well as the facts and circumstances which tend to corroborate or discredit them, and determine the case accordingly, and, if upon such review the judgment and finding of the trial court is not clearly against the weight of the evidence, the judgment of the trial court should be sustained.

H. P. White, and Burford, Hoffman, Burford & Miley, for plaintiff in error.

J. C. Cornett, J.

J. Worten, and G. B. Sturgell, for defendants in error.

FOSTER, C.

¶1 On October 11, 1921, H. G. Carson, as guardian of Walker Blaine, an Osage minor Indian, filed a petition in the county court of Osage county, Okla., praying that letters of administration be issued to him on the estate of Lawrence Gray, deceased.

¶2 The petition was heard by the court on the 22nd day of October, 1921, whereupon the court made an order appointing petitioner administrator of said estate, and caused letters of administration to be issued as prayed for. Thereafter, to wit, on the 7th day of January, 1924, the administrator presented and filed his final account, praying the court for an order settling said account, and that the balance remaining in his hands after all debts and claims against the estate had been paid be distributed to Walker Blaine as the sole surviving heir of Lawrence Gray, deceased.

¶3 On the 2nd day of January, 1924, the plaintiff in error, Josephine Gray James, filed in said court her plea of intervention, in which she claimed to be the surviving wife of Lawrence Gray, deceased, and, as such, entitled to have all of said estate distributed to her. The county court, on the 3rd day of March, 1924, entered an order approving the final account of H. G. Carson, administrator, finding Walker Blaine to be the sole heir of Lawrence Gray, deceased, and ordering the whole of said estate distributed to him.

¶4 An appeal was thereupon taken by the plaintiff in error to the district court of Osage county upon both questions of law and fact. On the 8th day of September, 1924, plaintiff in error filed, in the district court of Osage county, an amendment to her plea in intervention, in which she reiterated her claim as the surviving wife and heir of Lawrence Gray, deceased, alleging that she and Lawrence Gray, deceased, were duly and legally married in the state of Colorado in October, 1921, while maintaining their matrimonial residence in that state, and that said marriage was legal and valid under the laws of that state.

¶5 At the same time plaintiff in error filed a plea to the jurisdiction of the district court of Osage county, and a motion to dismiss the cause for want of jurisdiction of the county court to appoint an administrator, and for want of jurisdiction of that court to determine the heirs of Lawrence Gray, deceased.

¶6 The matter came on for hearing in the district court of Osage county on the 8th of September, 1924, and on the 11th day of September, 1924, the district court rendered judgment affirming the judgment of the county court. From this judgment, and from an order overruling her motion for a new trial, plaintiff in error, Josephine Gray James, appeals to this court for review. For convenience plaintiff in error will hereafter be designated as intervener.

¶7 It appears that Lawrence Gray, a restricted Osage Indian, died at Colorado Springs, Colo., on the 10th day of October, 1921. At the time of his death he was under guardianship, having by the county court of Osage county, in the year 1919, been declared to be an incompetent person. On July 16, 1921, his guardian, E. H. Mattingly, had obtained an order from the county court of Osage county to conduct Lawrence Gray to Colorado Springs, and place him in a sanatorium for the treatment of tuberculosis and pellagra, and during the period of time intervening between that date and the date of his death, he was a patient in Knobhill Sanatorium in Colorado Springs.

¶8 Intervener was the owner of a rooming house in Pawhuska, Okla., and it appears that for some months prior to the time of his removal to Colorado Springs, Lawrence Gray had boarded with intervener in said rooming house. At the time of the removal of Lawrence to Colorado, intervener was the wife of one Columbus Walker, with whom she had intermarried in the year 1885, and she continued to be his legal wife until October 3, 1921, at which time she was granted a divorce by the district court of Osage county. Lawrence Gray had himself been divorced from a former wife, Edna Gray, a few months prior to this removal to Colorado Springs. He left surviving no issue, father, mother, brothers, or sisters.

¶9 The controversy arising in this case is between intervener, claiming to be the surviving wife of Lawrence Gray, deceased, and Walker Blaine, claiming to be a surviving nephew. The trial court found that Walker Blaine was the child of a deceased sister of Lawrence Gray, and if the trial court did not err in finding and concluding that intervener was not the surviving wife of Lawrence Gray, we think, under the evidence, it was fully justified in concluding that Walker Blaine was the sole surviving next of kin and entitled to inherit the estate of Lawrence Gray under the provisions of subsection 6, section 11301, C. O. S. 1921.

¶10 It may be stated here that the principal question argued and discussed by the parties, in both the oral argument and the briefs filed in the case, was whether or not matrimonial relations existed between intervener and Lawrence Gray at the time of his death on October 10, 1921, but before we give consideration to this matter it is proper that we notice the contention of intervener that the county court of Osage county was without jurisdiction to appoint an administrator of Lawrence Gray, or to determine his heirs, and that for this reason this court should remand the cause, with directions to dismiss the proceeding.

¶11 It is insisted that Lawrence Gray was a resident of the state of Colorado at the time of his death, and that therefore the county court of Osage county had no jurisdiction to appoint an administrator to administer his estate. The evidence discloses very clearly, we think, that the residence of Lawrence Gray continued to be in Osage county, Okla., until the time of his death, unless it was changed by the act of his guardian in removing him to Colorado for his health. He had always maintained his residence in said county, and by the order appointing E. H. Mattingly his guardian, as well as by the order subsequently entered appointing H. G. Carson as administrator of his estate, his residence had been judicially determined to be in Osage county, Okla.

¶12 These circumstances at least raise a presumption of fact that Lawrence Gray died a resident of Osage county, Okla. Anthis v. Drew et al., decided Oct. 20, 1925, pending on rehearing, 39 Okla. App. Ct. Rep. 290.

¶13 Section 6587, C. O. S. 1921, provides:

"A guardian of the person is charged with the custody of the ward, and must look to his support, health and education. He may fix the residence of the ward at any place within the state, but not elsewhere, without permission of the court."

¶14 There is nothing to be found in the order of the county court of Osage county, authorizing the guardian to place Lawrence Gray in a sanatorium at Colorado Springs for his health, which may be construed as a permission by the county court to establish the residence of Lawrence Gray in Colorado.

¶15 The language of the order negatives this construction. The order referred to authorized the guardian to place Lawrence Gray in a sanatorium for treatment of tuberculosis. There was nothing in the order authorizing the guardian to purchase or rent a home for Lawrence in Colorado, or any language which could be construed as permission and authorization by the court to establish a residence for him in Colorado, and while it might be true, under some circumstances, that a change of residence might legally result from the location of a party in a certain locality for his health, the mere placing of a party temporarily in a sanatorium for this purpose could not have this result, in the absence of further testimony that after leaving the sanatorium he intended to continue his sojourn in more permanent surroundings.

¶16 We think the trial court was fully justified, under the evidence, in finding that Lawrence Gray was a resident of Osage county at the time of his death, and that the county court of Osage county therefore had jurisdiction...