Knight v. Carter Oil Co. (In re Fulsom's Estate), Case Number: 18574

• Court: Supreme Court of Oklahoma
• Writing for the Court: REID, C.
• 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.
• Docket Number: Case Number: 18574
• Decision Date: 17 December 1929

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...