Knight v. Carter Oil Co. (In re Fulsom's Estate)

• Decision Date: 17 December 1929
• Docket Number: Case Number: 18574
• Citation: 141 Okla. 300,1929 OK 554,285 P. 13
• Parties: In re FULSOM'S ESTATE. KNIGHT et al. v. CARTER OIL CO. et al.
• Court: Oklahoma Supreme Court

1929 OK 554

285 P. 13

141 Okla. 300

In re FULSOM'S ESTATE.

KNIGHT et al. v. CARTER OIL CO. et al.

Case Number: 18574

Supreme Court of Oklahoma

Decided: December 17, 1929

Syllabus

¶0 1. Indians--County Court as Federal Agency in Proceedings to Determine Heirs of Allottees.

The Act of Congress of June 14, 1918 (Comp. St. 1918, Append. secs. 4234a, 4234b) providing for a determination of the heirs of any deceased citizen allottee of the Five Civilized Tribes of Indians, who may die or may have died leaving restricted heirs, by the probate court of the state of Oklahoma having jurisdiction to settle the decedent's estate, held, that the county court of this state, in such capacity and while exercising the power therein conferred, acts as a federal agency.

2. Same--Federal Statute Mandatory and Controlling as to Time Limit for Appearance of Interested Parties.

The Act of Congress of June 14, 1918, providing for service by publication on unknown heirs in accordance with the method of serving nonresident defendants in civil suits in the district courts of this state, and that if any person so served by publication does not appear and move to be heard within six months from the date of the final order, he shall be concluded equally with parties personally served or voluntarily appearing, is mandatory and controlling, and the Legislature of this state had no power to enact a statute having the effect to extend the time beyond that fixed by Congress.

Commissioners' Opinion, Division No. 1.

Error from District Court, Creek County; Fred A. Speakman, Judge.

On the petition of Lillie May Thomas, a decree was entered in the County Court of Creek County, determining the heirs of Louisa Fulsom, deceased, and petitions to open such decree were filed therein by Kogee Knight, nee Davis, et al. In the county court, the petitions were dismissed, and on appeal to the district court, that court entered judgment dismissing the petitions, and the petitioners brought this appeal. Affirmed.

G. R. Horner, Lafayette Walker, J.

S. Severson, and W. E. Disney, for plaintiffs in error.

W. L. Ransom, for defendants in error J. R. Bond, R. R. Bell, C. S. Brown, and Lillian May Thomas.

REID, C.

¶1 On March 7, 1922, Lillie May Thomas filed her petition in the county court of Creek county, alleging that Louisa Fulsom was a full-blood Creek Indian enrolled opposite roll No. 3917, and that among other lands there was allotted to her a certain described 40-acre tract situated in Creek county, and patent duly issued therefor; that the allottee died in 1904, leaving as her sole heir her sister, Jamimie Fulsom, who died in 1906, leaving as her only heir her one child, Lena Foster, nee Fulsom, nee Edwards, and that so far as petitioner is able to learn, she, Lena Edwards or Foster, thereupon became the sole and only heir of the allottee's estate. It was also stated in the petition that if there were any other claimants to said land, they were unknown to the petitioner, that no administrator was ever appointed for the estate of the allottee, and no necessity existed therefor, as she left no estate except her allotment; that no proceedings were ever had to ascertain who were her legal heirs and entitled to participate in her estate. And it was further alleged that, by purchase "through the heirs" of the allottee's estate, she had become interested therein and in its distribution, if any remained. She asked the court to declare who were the heirs of the estate of Louisa Fulsom at the time of her death; that notice issue and be served upon the heirs as provided by statute, and that publication be had as to any unknown and nonresident heirs.

¶2 Affidavit was made and filed by the petitioner for notice by publication, and notice was so given. On April 22, 1922, a decree was entered determining the heirship of the allottee as stated and prayed for in the petition. More than six months after the entry of such decree, but within one year thereafter, the plaintiffs in error in five different groups filed in the proceeding their respective petitions, in which it was alleged that certain of them were heirs of the allottee and that certain others named were owners, by purchase from heirs, of interests in said land; that neither of them was personally served with notice of the hearing to determine the heirship of the allottee; that they had no personal knowledge of such hearing in time to be present; that if it should be held that they were served at all, it was by publication; that 12 months had not elapsed since the rendition of the decree. And in the prayers of these respective petitioners they asked that the decree be opened and that a decree determining the heirs be made in accordance with the claims set up in each of the petitions.

¶3 Upon hearing the petitions to vacate the decree of heirship in the county court, they were dismissed by the court. The petitioners appealed to the district court, where a similar result was had, both courts holding that the right of the petitioners to open the decree of heirship was barred by limitation. From this order and judgment the petitioners have brought appeal to this court. And the only question tried in the lower courts, and the only one necessary here and now to decide this appeal, is whether the petitions to open the decree of heirship were filed in time to permit the county court to hear them.

¶4 A proper conclusion upon this question calls for an examination of the Act of Congress of June 14, 1918, c. 101. 40 Stat. 606 (U.S. Comp. Stat. 1918, append., sections 4234a, 4234b) and Senate Bill 60, chapter 25, S. L. of Oklahoma 1919 (sections 1384 to 1389, inclusive, C. O. S. 1921). That part of the act of Congress relevant to the question is as follows:

"A determination of the question of fact as to who are the heirs of any deceased citizen allottee of the Five Civilized Tribes of Indians who may die or may have heretofore died, leaving restricted heirs, by the probate court of the state of Oklahoma having jurisdiction to settle the estate of said deceased, conducted in the manner provided by the laws of said state for the determination of heirship in closing up the estates of deceased persons, shall be conclusive of said question: Provided, that an appeal may be taken in the manner and to the court provided by law, in cases of appeal in probate matters generally; provided, further, that where the time limited by the laws of said state for the institution of administration proceedings has elapsed without their institution, as well as in cases where there exists no lawful ground for the institution of administration proceedings in said courts, a petition may be filed therein having for its object a determination of such heirship, and the case shall proceed in all respects as if administration proceedings upon other proper grounds had been regularly begun, but this proviso shall not be construed to reopen the question of the determination of an heirship already ascertained by competent legal authority under existing laws. Provided, further, that said petition shall be verified, and in all cases arising hereunder service by publication may be had on all unknown heirs, the service to be in accordance with the method of serving nonresident defendants in civil suits in the district courts of said state; and if any person so served by publication does not appear and move to be heard within six months from the date of the final order, he shall be concluded equally with parties personally served or voluntarily appearing."

¶5 The foregoing acts of the Legislature and of the Congress have come before this court for discussion and decision upon certain phases, under the facts therein presented, in the following cases: State ex rel. Miller v. Huser, 76 Okla. 130, 184 P. 113; State ex rel. Bartlett et al. v. Wilcox, 75 Okla. 158, 182 P. 673; Homer v. Lester, 95 Okla. 284, 219 P. 392; Owens v. Kitchens, 105 Okla. 88 232 P. 797; Arnold v. Willis, 105 Okla. 172, 232 P. 15; In re Lewis' Estate, 100 Okla. 283, 229 P. 483; Lynch v. Thompson.

¶6 108 Okla. 295, 238 P. 212: In re Jackson's Estate, 117 Okla. 151, 245 P. 874; Sampson v. Lindley, 121 Okla. 252, 249 P. 285; Davis v. Harjo's Unknown Heirs, 137 Okla. 242, 279 P. 306: In re Estate of Willis, 129 Okla. 155, 265 P. 1064; Kelly v. Scott, 125 Okla. 208, 257 P. 303; Cox v. Colbert, 135 Okla. 218, 275 P. 317. But the exact question here presented does not seem to have been decided.

¶7 In the case of In re Jessie's Heirs, 259 F. 694, we find Judge Williams using this language in discussing these two acts, at page 704:

"The Act of Congress of June 14, 1918, relates to restricted or full-blood heirs of deceased citizen allottees of the Five Civilized Tribes. The proviso to section 1 of the Act of the Legislature of April 4, 1919, was enacted to give concurrence of the state procedure to section 1 of said act of Congress, and applies only to cases or petitions for determination of full-blood or restricted heirs, as a class, of deceased allottees. Otherwise, said proviso to said section 1 of the act of the Legislature of April 4. 1919, would conflict with section 12, art. 7. of the Constitution of Oklahoma. Ozark Oil Co. v. Berryhill, 43 Okla. 523, 143 P. 173. Chapter 145, Session laws of Okla. 1919, emphasizes this conclusion. It provides in actions to quiet title, etc., or where 'the relief demanded consists wholly or partly in excluding' a person 'from any lien or interest' in such property, that the 'unknown heirs' may be joined as parties, and under the conditions prescribed service to be had by notice by publication. These acts of the Legislature, construed together, show that the provisions of section 12, art. 7, Const. Okla., were in contemplation when same were passed."

¶8 In the case of Homer v. Lester, supra, this court exhaustively reviewed the Act of June 14, 1918, and chapter 25, S. L. 1919, supra, and in the syllabus had this to say about the state act:

"That part of Senate

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