Letts v. Letts

• Decision Date: 12 November 1918
• Docket Number: 9391.
• Citation: 176 P. 234,73 Okla. 313,1918 OK 622
• Parties: LETTS v. LETTS et al.
• Court: Oklahoma Supreme Court

176 P. 234

73 Okla. 313, 1918 OK 622

LETTS v. LETTS et al.

No. 9391.

Supreme Court of Oklahoma

November 12, 1918

Syllabus by the Court.

Willie B. Garner, a Creek citizen, died testate, and by the terms of his will his allotment was devised to his mother for life with remainder to other devisees, and his mother was named as executrix of his estate. After his death his mother filed a petition in the county court of Wagoner county for the probation of his will and the appointment of herself as executrix of the estate. After due notice the county court probated the will and appointed her as executrix of the estate, which trust she accepted. In the order of probation the court recited that at the time of the execution of said will the testator was of full age, of sound mind and memory and that said will was executed in all particulars as required by law. Thereafter his mother instituted this suit in the district court to quiet her title to said allotment upon the theory that, as the sole surviving parent of said Garner, she was entitled to all of said property, and that the testator was a minor at the time of his death, and the disposition of his property by will was void on account of his age. Held, that the petition stated a cause of action in favor of the plaintiff, and it was error to have sustained a demurrer thereto.

Additional Syllabus by Editorial Staff.

A devise by a minor allottee of the Creek Nation of his allotment is void, a will being an alienation within the meaning of Act Cong. May 27, 1908.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Alienation.]

The alienation of an Indian allotment being governed by the act of Congress, the right of an Indian to devise it must be governed and controlled entirely by the act of Congress pertaining thereto, and not by the state law.

In view of Acts Cong. April 26, 1906, and May 27, 1908, a minor Indian under 21 years of age, though not affected by such acts, cannot will his allotment, minority being a federal restriction and controlling.

In a proceeding to probate a will under Rev. Laws 1910, §§ 6210, 6211, the only issue triable is the factum of the will, or the question of devisavit vel non.

Commissioners' Opinion, Division No. 3.

Error from District Court, Wagoner County; Chas. G. Watts, Judge.

Suit by Susan L. Letts, executrix of the estate of Willie B. Garner, deceased, against Charles Haskell Letts, John L. Garner, and others. Demurrer to petition by guardian ad litem for defendants, except John L. Garner, who made default, sustained, and judgment entered for defendants, and plaintiff brings error. Reversed, and cause remanded.

A. L. Harris, of Muskogee, for plaintiff in error.

HOOKER C.

Willie B. Garner, a Creek citizen by blood, died on the 30th day of January, 1915, being at the time unmarried and without issue, and leaving the plaintiff in error, his mother, as the only surviving parent.

Prior to his death he executed a will devising his allotment to his mother for life, with the remainder to the defendants in error, and by the terms of his will he designated the plaintiff in error as his executrix. Shortly after his death the plaintiff in error filed her application in the county court of Wagoner county, asking for the probation of said will, and for the appointment of herself as executrix of said estate.

The petition was set for hearing, and at the proper time the court made an order probating said will, and appointing the plaintiff in error as the executrix of said estate, said order being as follows, omitting caption:

"Now, on this 23d day of February, 1915, there coming on for hearing the petition of Susan L. Letts to have admitted to probate the paper filed herein on the _____ day of February, 1915, purporting to be the last will and testament of Willie B. Garner, deceased; and said petitioner appearing in person and by her attorney, W. B. Moss, and no person or persons appearing to contest the same; and it first being proved that notice of this hearing was given by posting copies of the notice of hearing of the probate of said will in three of the most public places in said Wagoner county, Oklahoma, *** as required by law; and the court having heard and considered the evidence offered in support of said petition, and being fully advised in the premises, finds that the instrument filed and propounded herein for probate was duly executed by the decedent, and that at the time of the execution thereof said testator was of full age, of sound mind and memory, and was not acting under duress, menace, fraud, or undue influence, and that said will was executed in all particulars as required by law:

It is therefore ordered, considered, adjudged, and decreed by the court that said instrument be admitted to probate as and for the last will and testament of said deceased, and that the same be, and hereby is, established as a valid will, passing both real and personal estate; and Susan L. Letts, who is named in the will, is hereby appointed executor of said will, upon her taking and subscribing the oath of office required by law, and executing a bond to the state of Oklahoma in the penal sum of $500 and upon the approval thereof as required by law."

The plaintiff in error thereafter qualified as the executrix of this estate, and subsequently she instituted this suit in the district court of Wagoner county against the defendants in error, all of whom, except John L. Garner, were devisees under the will of the decedent, Garner.

In the petition it is alleged by the plaintiff that she is the owner and in the possession of the real estate named therein (being the same devised by the will); that said land was the land allotted to Willie B. Garner, a Creek citizen by blood, duly enrolled on the enrollment record prepared by the Commission to the Five Civilized Tribes, opposite No. 884, and that patents were duly issued to said Willie B. Garner by the proper authorities; that the said Willie B. Garner died on the 30th day of January, 1915, seised of said land, being unmarried and without issue, and leaving this plaintiff as the sole and only heir, his father being dead and as such heir the plaintiff averred that she was the sole and only owner to the fee simple title thereto; that said defendants and each of them claimed some interest in said land by virtue of an alleged last will and testament of the said Willie B. Garner, which had been duly admitted to probate by the county court of Wagoner county, and it is alleged that said will, and the probate thereof, was and is null and void, and inoperative to convey said title to said real estate, for the reason that the decedent at the time of his death was, according to the enrollment record, a minor under the age of 21 years, having been enrolled on April 24, 1899, as four years of age, and that he was a minor at the time of his death, and by reason of his minority the alienation of said land was by the various acts of Congress restricted, and by the acts of Congress the aforesaid will, and the probate thereof, was and is null and void; that at the time said will was offered to probate to the county court aforesaid plaintiff was unaware that the same was void and ineffective, and subsequently ascertained the true conditions, and that she offered the same for probate through...