John v. Thompson (In re Thompson's Estate St.)

• Decision Date: 19 January 1937
• Docket Number: Case Number: 26906
• Citation: 1937 OK 12,179 Okla. 240,65 P.2d 442
• Parties: In re THOMPSON'S ESTATE ST. JOHN et al. v. THOMPSON et al.
• Court: Oklahoma Supreme Court

1937 OK 12

65 P.2d 442

179 Okla. 240

In re THOMPSON'S ESTATE

Case Number: 26906

Supreme Court of Oklahoma

Decided: January 19, 1937

Syllabus

¶0 1. INDIANS - Effect of Federal Act Making Property of Deceased Osage Allottee Subject to Probate Jurisdiction of County Courts.

The Act of Congress of April 18, 1912 (37 Stat. 86), which provides "that the property of deceased * * * allottees of the Osage Tribe * * * shall, in probate matters, be subject to the jurisdiction of the county courts of the state of Oklahoma, * * *" operated to subject the same to the full probate jurisdiction of the county courts of Oklahoma.

2. DESCENT AND DISTRIBUTION - Jurisdiction of County Court to Determine Heirship During Course of Administration Proceedings.

Under the provisions of sections 12, 13, art. 7, Const., and sections 1391-1396, O. S. 1931, the county court having jurisdiction to settle the estate of any deceased person may, during the course of administration proceedings, determine the heirs of the deceased where the court's jurisdiction is duly invoked for that purpose as provided in said statutes.

3. SAME - Conclusiveness of Decree Determining Heirship Alike as to Property of Deceased Subject to Payment of Debts and Property not so Subject.

A decree of the county court determining heirs of an intestate rendered as incident to final settlement of the estate, unless appealed from, is conclusive of that question and binding alike as to the property of deceased subject to payment of debts and property not subject to such debts.

4. INDIANS - Under Federal Act Person of Blood of Another Indian Tribe not Prohibited From Inheriting Restricted Properties of Deceased Osage Spouse.

Under section 7 of the Act of Congress of February 27, 1925, reading as follows: "Hereafter none but heirs of Indian blood shall inherit from those who are of one-half or more Indian blood of the Osage Tribe of Indians any right, title or interest to any restricted lands, moneys, or mineral interests of the Osage Tribe, * * *" a spouse who is not of Osage Indian blood, but is of the blood of another Indian tribe, is not prohibited from inheriting the restricted properties of the deceased Osage spouse.

5. DIVORCE - APPEARANCE - Written Waiver by Defendant Held to Give Court Jurisdiction to Render Default Judgment Immediately.

In a divorce action the written waiver of the defendant in the following words: "Comes now, * * * defendant above named, and waives the issuance and service of summons herein, enters his general appearance in the cause and consents that the same may be set down for trial at any time," is effective to commence the action under sections 164, 175, O. S. 1931, and to waive further pleading and to subject defendant to the continuous jurisdiction of the court, and thereafter, in his absence, and in the absence of any pleading by him, a judgment by default may be taken at any time.

Appeal from District Court, Osage County; Jesse J. Worten, Judge.

In the matter of the estate of Mary Wheeler Thompson, Osage allottee No. 734, deceased. Petition by Floyd Thompson, by Pitts Beaty, legal guardian, seeking determination of heirs. From judgment of district court, upon appeal from county court, favorable to petitioner, error is brought by Pierce St. John, Jr., minor unallotted Osage Indian, by H.P. White, guardian ad litem. Affirmed.

H.P. White, for plaintiff in error.

C.S. Macdonald and F.W. Files, for defendants in error.

GIBSON, J.

¶1 This action originated in the county court of Osage county, wherein Floyd Thompson, by his guardian, sought determination of the heirs of Mary Wheeler Thompson, a deceased full-blood Osage Indian.

¶2 The defendant in error, Floyd Thompson, and plaintiff in error, Pierce St. John, Jr., a minor, are the real parties in interest and will be referred to herein as plaintiff and defendant, respectively.

¶3 Deceased was a resident of Osage county at the time of her death in the early part of the year 1935, and the county court of that county, upon petition duly filed, assumed jurisdiction of the settlement of her estate and appointed an administrator and issued letters on the 15th day of February of that year.

¶4 On April 22, 1935, the plaintiff, asserting himself to be a half-blood Kaw Indian and the legal husband of deceased, filed his petition in the same cause seeking a determination of heirs. The heirship proceeding was instituted under authority of sections 1391-1396, O. S. 1931, and not as an incident to the distribution of said estate on final settlement as provided in section 1358, O. S. 1931. The county court entered its order adjudging the plaintiff, as surviving husband, and defendant, as surviving child, to be the only heirs of the deceased. The district court on appeal affirmed the judgment of the county court, and defendant has appealed to this court.

¶5 The first and paramount question presented by the assignments involves the county court's jurisdiction of this proceeding, and this brings into question the constitutionality of section 1391, O. S. 1931, or its applicability to the proceedings here reviewed.

¶6 The material portion of section 1391, so far as the same applies to this case, reads as follows:

"The county court having jurisdiction to settle the estate of any deceased person is hereby granted original jurisdiction to hear and determine the question (sic) of fact as to the heirship of such person, and a determination of such fact by said court shall be conclusive evidence of said question in all the courts of this state. Provided, that appeals may be taken from said county courts within the time and in the manner provided by law as in other probate matters. If no appeal is taken the judgment of the county court shall be final, and in all cases appealed from the county court when a final determination thereof is had, same shall be a final determination of such fact of heirship."

¶7 The remaining portion of that section provides for the determination of heirs by the county court in cases where the time limited by law for the institution of administration proceedings has expired without the proceedings having been instituted, and in cases where there exists no lawful ground for the institution of such proceedings, and does not apply here. In the instant case administration proceedings had been commenced and were pending, and the present proceeding to determine heirs arose therefrom. Although it is asserted by defendant in error that the deceased possessed no property that would constitute assets in the hands of an administrator, that character of assets is not necessary to the institution of such proceedings, and the absence thereof does not deprive the court of jurisdiction. Wolf v. Gills, 96 Okla. 6, 219 P. 350. The third paragraph of the syllabus of that case reads as follows:

"Under section 1088, Comp. Stat. 1921, jurisdiction of the estate of a deceased citizen is based, not upon the existence of assets, but upon domicile in the county, and it is therefore not necessary that there should be assets of the decedent in order for an administrator to be appointed. While it would be an abuse of discretion for a county court to appoint an administrator for a deceased resident of the county where there is no estate or other statutory ground for the appointment, such appointment would not be void."

¶8 Therefore the administration proceedings were properly instituted in Osage county, and the county court obtained jurisdiction thereof subject, of course, to such limitations and restrictions in exercising its jurisdiction as are placed thereon by the Constitution and laws of Oklahoma, and the acts of Congress relating to Osage affairs.

¶9 The fact that the deceased was a full-blood Osage Indian, owning restricted and debt-exempt property, creates no doubt as to the jurisdiction of the county court of Osage county as a court of probate over the estate of the deceased, because Congress, by the Act of April 18, 1912 (37 Stat. 86), subjected such estates to the jurisdiction of the county courts of Oklahoma, as follows: "That the property of deceased * * * allottees of the Osage Tribe * * * shall, in probate matters, be subject to the jurisdiction of the county courts of the state of Oklahoma."

¶10 In Mudd v. Perry, 25 Fed. (2d) 85, when considering the foregoing Act of Congress of April 18, 1912, the Circuit Court of Appeals said:

"This was a devolution by the Congress of judicial authority upon the county courts of Oklahoma to determine judicially, among other things, who were rightful claimants to the estate of deceased allottees of the Osage Indian Tribe. It was more than a mere selection of the county court for the performance of a ministerial or executive duty. It involved, as Congress must have intended, a judicial inquiry. The county courts of Oklahoma were not designated as agents or final arbiters in such matters, but it was provided that such estates 'shall, in probate matters, be subject to the jurisdiction of the county courts.' "

¶11 In Wah-tsa-e-o-she v. Webster, 69 Okla. 257, 172 P. 78, when construing this same act, we said that it "gives the county courts of Oklahoma jurisdiction over the property of deceased Indians. In investing this jurisdiction in the county court, Congress could not have had any reason to have made any distinction between this class of cases and other cases."

¶12 In Wright v. Lamb, 108 Okla. 16, 232 P. 373, we said that by the Act of 1912 "the United States merely relinquished its jurisdiction over these probate matters. The Osages being residents of the state of Oklahoma and with property located therein, do thereupon, naturally, come under the laws of the state of Oklahoma and the jurisdiction of its probate courts." See, also, Shimonex v. Tillman, 150 Okla. 177, 1 P.2d 154.

¶13 In view of the foregoing decisions the county courts, under the Act of 1912, are left free to exercise the same jurisdiction and powers over the estates of deceased Osages as it may in the...