Lester v. Smith

• Decision Date: 28 June 1921
• Docket Number: 11407.
• Citation: 200 P. 780,83 Okla. 143,1921 OK 254
• Parties: LESTER ET AL. v. SMITH ET AL.
• Court: Oklahoma Supreme Court

200 P. 780

83 Okla. 143, 1921 OK 254

LESTER ET AL. v. SMITH ET AL.

No. 11407.

Supreme Court of Oklahoma

June 28, 1921

Rehearing Denied Sept. 27, 1921.

Syllabus by the Court.

In a proceeding for the appointment of a guardian for a minor when all of the statutory requirements and the orders of the court in regard to notice have been complied with and the petition states all the essential jurisdictional facts to confer jurisdiction on the court, the petition alleges the minor is over the age of 14 years, and such minor files a written nomination of guardian, and after a hearing had the court appoints the guardian so nominated, and no fraud is shown, the appointment will be held valid.

Appeal from District Court, Carter County; John L. Coffman, Judge.

Action by Wesley Lester and another against C. R. Smith and others to recover 120 acres of land. Judgment for the defendants. Plaintiffs appeal. Affirmed.

H. A Ledbetter, of Ardmore, and W. A. Ledbetter, of Oklahoma City for plaintiffs in error.

Potterf & Gray and R. L. Disney, all of Ardmore, and Stuart, Sharp & Cruce, of Oklahoma City, for defendants in error.

MILLER J.

This action was commenced in the district court of Carter county by Wesley Lester and D. E. Booker, as plaintiffs, against C R. Smith, Marie S. Smith, Mrs. Mary Stuart Smith, Will H. Smith, Margaret L. Smith, Charles Robert Smith, Jr., and C. S. Davis, defendants, to recover 120 acres of land situated in Carter county, and which was a part of the allotment of the said Wesley Lester, he being a Chickasaw Indian of three-eighths blood. The enrollment record shows that he was born on the 21st day of September, 1897. The case was tried to the court without a jury, and resulted in a judgment in favor of the defendants, to reverse which the plaintiffs perfected this appeal and appear here as plaintiffs in error. For convenience the parties will be referred to as they appeared in the court below.

The facts, briefly stated, are as follows:

Wesley Lester was the son of Ella Williams, who had intermarried with George M. Williams subsequent to the birth of the said Wesley Lester. Ella Williams also had another son, Moran S. Lester, who was about 2 years older than Wesley. Four children were born to George M. Williams and Ella Williams. The two Lester boys resided with their mother and stepfather as members of the family, and it appears they were cared for by them the same as the Williams children.

In February of 1911 George M. Williams instituted proceedings in the county court of Carter county to have himself appointed as guardian of his minor children, also Moran and Wesley Lester. At this time, and for a long time prior thereto, Williams lived in Carter county with his family, which included the two Lester boys. Letters of guardianship were issued by the county court to George M. Williams as guardian of the two Lester boys and three Williams' children. Thereafter proceedings were instituted by George M. Williams as guardian to sell 120 acres of land belonging to Wesley Lester, and being a part of his allotment. The land was sold to one of the defendants herein, and is the land in controversy in this action. Certain other conveyances were made by the defendants in this action, and this suit was brought to have all of said deeds canceled. The petition states that the defendants were in the possession of the land, and had been in possession for 6 years prior to the bringing of this action, and had received the rents and profits therefrom.

After Wesley Lester became of age, and before this suit was instituted, he deeded a one-half interest in this land to his coplaintiff, D. E. Booker. The plaintiffs contend that the appointment and the proceedings leading up to the appointment of George M. Williams as guardian of Wesley Lester, are void, and for that reason the deed made by Williams as such guardian is likewise void, and did not convey any title to the defendants.

Plaintiffs make this contention in their brief:

"It appears from the petition of the said George M. Williams, as the purported guardian of Wesley Lester, that Wesley Lester was at the time of filing said petition over the age of 14 years; that said Wesley Lester did not appear and consent that the said George M. Williams be appointed as guardian, and no notice was served upon him that the said George M. Williams would ask to be appointed guardian over his person and estate.

(b) That at the time of the filing said petition by said George M. Williams, the said Wesley Lester was above the age of 14 years, and was living in the care and custody of his mother, Ella Williams; that the said Wesley Lester is the illegitimate son of Ella Williams, and that the said Wesley Lester did not nominate George M. Williams as his guardian, nor did he appear in court by a pleading or otherwise by which he gave to the county court of Carter county jurisdiction to make the appointment; that George M. Williams was at the time married to Ella Williams, and was living with her as her husband, but the plaintiffs alleged that the appointment of said George M. Williams as guardian of the said Wesley Lester was procured by fraud, in that the said George M. Williams did not procure the written consent of said Wesley Lester to have himself appointed guardian over the said Wesley Lester, and the said Wesley Lester did not appear in open court and consent that the said George M. Williams be appointed as guardian; that the said George M. Williams procured the appointment of himself as guardian of the person and estate of the said Wesley Lester in order to secretly obtain the title to the lands alloted the said Wesley Lester, for his own use and benefit, or for the use and benefit of some other person."

The plaintiffs have made several assignments of error but make their argument and submit their authorities on the following two propositions:

First. That the attempted appointment of George M. Williams, as guardian of Wesley Lester in 1905, was void, and all proceedings pursuant to said appointment, including the deed from George M. Williams to C. R. Smith, are likewise void, for the reason that no notice of the appointment was given.

Second. The attempted appointment of George M. Williams as guardian of Wesley Lester in February, 1911, is void, and all proceedings pursuant thereto, including the deed of George M. Williams to C. R. Smith, are void for the reason that no notice of the application for appointment was given.

The first proposition refers to the appointment of George M. Williams as guardian of Moran Lester and Wesley Lester and the Williams children in 1905, but we do not believe this has anything to do with the case. As we conclude the proceedings leading up to the appointment and the appointment of George M. Williams as guardian of Wesley Lester in 1911 are valid, therefore it will be unnecessary to pass upon the question raised by the paragraph marked first.

In the first part of plaintiffs' brief they claim the appointment was void because Wesley Lester was over 14 years of age, and did not nominate George M. Williams as his guardian. They base their argument on the theory that he was not 14 years of age, and no notice was served on him of this application or proposed hearing for the appointment of a guardian of his person and estate.

The petition for appointment of guardian filed in the county court, of Carter county, omitting...