Kemp v. Turnbull

• Decision Date: 15 October 1946
• Docket Number: 32037.
• Citation: 174 P.2d 384,198 Okla. 27,1946 OK 277
• Parties: KEMP et al. v. TURNBULL et al.
• Court: Oklahoma Supreme Court

174 P.2d 384

198 Okla. 27, 1946 OK 277

KEMP et al. v. TURNBULL et al.

No. 32037.

Supreme Court of Oklahoma

Oct. 15, 1946

Rehearing Denied Nov. 26, 1946.

Appeal from District Court, Bryan County; Roy Paul, Judge.

Action by Walter J. Turnbull, Jr., and others against Mary Kemp and others to quiet title to land. From an adverse judgment defendants appeal.

Affirmed.

Syllabus by the Court.

1. A will of a full blood Indian devising real estate 'disinherits the parent, wife, spouse, or children,' under Section 23 of the Act of Congress of April 26, 1906, 34 Stat. L. 137 at page 145, as amended by Section 8 of the Act of Congress of May 27, 1908, 35 Stat. L. 312 at page 315 only if the interest so devised is less, in value, than the interest such heir would have inherited had the testator died intestate.

2. The right of the surviving spouse to continue to possess and occupy the homestead on the death of the owner, under 58 O.S.1941 § 311, is not an estate in land, but is a mere personal right or privilege, distinct from the interest which the surviving spouse takes in the land by inheritance or devise, and the right may not be alienated separate and apart from an estate in the land, so as to confer upon the grantee the rights of the surviving spouse. Such right is different from a devise of a life estate to the surviving spouse.

3. Where the record is silent as to the existence of any fact necessary to the validity of the final decree of the county court in a probate cause, it must be presumed, when the decree is collaterally attacked, that the court inquired into and found the existence of such fact.

4. Where a full blood Indian, who has no surviving parent or child, devises a life estate and an undivided one-third interest in his constitutional homestead to his wife, and the other two-thirds interest, subject to said life estate, to a third person, and the will is admitted to probate and the decree of distribution distributes the land according to the terms of the will, and the decree is silent on the question of the value of the interest devised to the wife, on collateral attack by the heirs of the wife, it will be conclusively presumed that the county court found that the interest so devised to the wife was equal in value to the one-half interest which she would have inherited in the land had testator died intestate, and that the wife was not disinherited under Section 23 of the Act of Congress of April 26, 1906, 34 Stat. L. 137 at page 145, as amended by Section 8 of the Act of Congress of May 27, 1908, 35 Stat. L. 312 at page 315.

RILEY, J., dissenting.

H. A. Ledbetter, of Ardmore, and J. L. Wheeler, of Durant, for plaintiffs in error.

A. H. Ferguson, and Roy B. David, both of Durant, for defendants in error.

HURST Vice Chief Justice.

This is a suit to quiet title to a 160 acre tract of land in Bryan County. The land was the homestead allotment of Roberson Kemp, a full blood Choctaw Indian, and was occupied by him and his wife as a constitutional homestead at the time of his death, and thereafter his wife, Melissa Kemp, continued to possess and occupy the land as a probate homestead until her death. A short time prior to his death on April 2, 1922, Roberson Kemp, who had no surviving child or parent, executed a will under which he devised to his wife, Melissa Kemp, a life estate and one-third of the fee title in and to the land herein involved and his other property and he devised to Walter J. Turnbull a two-thirds interest in the land and his other property subject to the life estate of Melissa Kemp. He bequeathed to his brother, Levi Kemp, and to a niece and the children of a deceased niece $1 each. On April 13, 1922, Melissa Kemp filed a petition for probate of the will and thereafter Walter J. Turnbull filed a petition joining in the request that the will be probated. E. O. Clark, Choctaw National Attorney, and Levi Kemp, brother of Roberson Kemp, filed separate contests asking that the will be not probated. One of the grounds of contest was that the will was not acknowledged before a judge of the United States court, a United States Commissioner, or a judge of the county court as required by Section 23 of the Act of Congress of April 26, 1906, 34 Stat. L. 137 at page 145, as amended by Section 8 of the Act of Congress of May 27, 1908, 35 Stat. L. 312 at page 315. On May 18, 1922, the court made an order admitting the will to probate and appointing Melissa Kemp as executrix of the will. Melissa Kemp failed to qualify as such executrix, and Walter J. Turnbull thereafter filed a petition for the appointment of himself as administrator with the will annexed, and on October 20, 1923, Walter J. Turnbull was appointed as such administrator. On February 27, 1926, after notice was duly given, the county court entered a final decree approving the final account of the administrator and setting over to Walter J. Turnbull and Melissa Kemp the interests devised and bequeathed to them in the will. No appeal was taken from said order or from any of the prior orders in the probate cause. Walter J. Turnbull died intestate on March 29, 1936. Melissa Kemp died intestate March 27, 1941. On March 24, 1943, Walter J. Turnbull, Jr., Beulah M. Davis, nee Turnbull, and Turner B. Turnbull, heirs at law and grantees of one of the heirs at law of Walter J. Turnbull, deceased, commenced this action against the heirs of Melissa Kemp, deceased, to quiet title to an undivided two-thirds interest in said land, for determination of heirship, and for partition of said land. The defendants and certain intervenors filed an answer alleging that the will of Roverson Kemp, deceased, was void in so far as it related to said land for the reason that it disinherited his wife, Melissa Kemp, in that it did not divise to her a one-half interest in said land which she would have inherited had Roberson Kemp died intestate, the will not having been acknowledged by the testator before and approved by a proper officer as required by the Acts of Congress, above cited. At the trial, the will was introduced in evidence and it does not have endorsed on it any certificate of acknowledgment before an officer authorized to take such acknowledgments.

The record shows that Melissa Kemp was, at the time of the death of Roberson Kemp, 44 years of age and had a life expectancy of 26.3 years. The plaintiffs introduced evidence to the effect that the life estate plus one-third fee interest devised to Melissa Kemp was equal in value to a full one-half fee interest in the land. The court made findings of fact and conclusions of law to the effect that the interest devised to Melissa Kemp was equal in value to a full one-half interest in the land and that there was no proof, other than the original will, that the will was not acknowledged before and approved by one of the officers designated by the Acts of Congress, above cited. The court found that the will was valid and also that the defendants and intervenors are barred by the 15 year statute of limitations. The court accordingly entered judgment in favor of the plaintiffs, finding that they owned an undivided two-thirds interest in the land, determining the names and identity of heirs of Walter J. Turnbull and Melissa Kemp and the proportions owned by each, and directing that the land be partitioned. From that judgment the defendants and intervenors have appealed.

Under 84 O.S.1941 § 213(2) one-half the property belonging to Roberson Kemp would have been inherited by his wife, if he had died intestate.

A will of a full blood Indian devising real estate 'disinherits the parent, wife, spouse, or children' under the Acts of Congress, above cited, only if the interest so devised is of less value than the interest such person would have inherited if the testator had died intestate. Hayes v. Thornsbrough, 180 Okl. 357, 69 P.2d 664; Coats v. Riley, 154 Okl. 291, 7 P.2d 644; Copeland v. Johnson, 101 Okl. 228, 224 P. 986.

To satisfy the requirements of said Acts of Congress, the certificate of acknowledgment must appear on the will, and the fact of acknowledgment cannot be proved by parol. Davis v. Williford, 271 U.S. 484, 46 S.Ct. 547, 70 L.Ed. 1048.

The defendants and intervenors contend that the life estate devised to Melissa Kemp had no value to her since she already had the right to possess and occupy the homestead during her natural life, and that the interest devised to her was less than she would have taken by inheritance, and that, consequently, the will was invalid under the Acts of Congress, above cited.

The plaintiffs argue that the life estate given by the will is different from the homestead right and that the life estate had a value despite the fact that Melissa Kemp possessed the homestead right, and that the county court had jurisdiction to determine whether in fact Melissa Kemp was partially disinherited by the will, and that its determination that she was not disinherited cannot be collaterally attacked.

We are dealing here with the probate homestead right conferred upon the surviving spouse by 58 O.S.1941 § 311, and not with the constitutional homestead provided for in article 12 of the state constitution. While the...