Lincoln v. Herndon, Case Number: 17803
| Decision Date | 11 February 1930 |
| Docket Number | Case Number: 17803 |
| Citation | 141 Okla. 212,285 P. 120,1930 OK 77 |
| Parties | LINCOLN et al. v. HERNDON et al. |
| Court | Oklahoma Supreme Court |
¶0 1. Indians--Devolution of Allotted Lands of Seminole Freedwoman Survived by Husband and by Unnamed Infant that Survived but a Few Days--Arkansas Law Applied.
Bessie Doser, a Seminole freedwoman, having been allotted certain lands as such, died in April, 1904, leaving her husband, Morris Cudjo, and an unnamed infant surviving her. The infant died within a few days after the death of its mother, without issue, father (capable of inheriting), mother, brothers or sisters, or their descendants, but leaving a maternal grandfather, five maternal uncles and aunts, and two sons of another deceased maternal uncle: Held, that the devolution of such estate is controlled by the applicable provisions of chapter 49 of Mansfield's Digest of the Laws of Arkansas; that upon the death of the allottee her lands descended to the unnamed infant, and became an ancestral estate in its hands. Upon the death of the infant, the estate passed to its heirs, who were of the blood of its mother, as provided by section 2522 thereof.
2. Judgment--Res Judicata--Death of Infant Heir Soon After Death of Ancestor--Administration Upon Estate of Ancestor and Determination of Heirship After Infant's Death not Conclusive Against Heirs of Infant.
Where one seized of an estate of inheritance dies prior to statehood and the estate descends to an infant who dies shortly thereafter, an attempted administration upon the estate of the first deceased, after the death of the latter, and a determination of the heirs of the first in such proceeding will not operate as res judicata so as to preclude the heirs of the infant from asserting their claims to the estate of the infant, which it inherited from the first deceased. Section 1359, C. O. S. 1921, is not applicable.
3. Death--Presumption of Death After 7 Years' Absence Without Tidings.
Where one leaves his home of his own accord, goes into parts unknown and remains unheard from by his kindred and those likely to have received tidings from him, had not been heard of or from, and such absence is otherwise unexplained for a period of seven years or more, he will be presumed to have died.
4. Appeal and Error--Theory of Case as Tried Binding on Appeal.
Where it was admitted in the trial court and in the briefs filed in this court that upon the death of a Seminole freedwoman, an estate by curtesy in her allotment vested in her surviving husband, the contention that such estate did not exist under the Seminole Treaties, not being raised in the trial court, cannot be raised for the first time in this court.
5. Life Estates--Statute of Limitations not Operative Against Remainderman Until Life Estate Extinguished.
A life tenant in lands, or his grantee, will not be presumed to hold the same adversely to a remainderman therein, so as to set the statute of limitations in operation, until the extinguishment of the life estate.
6. Same--15-Year Statute Held Applicable After Decree in Administration that Alleged Heirs Were not Heirs.
Where the grantee of a life tenant and his assignees go into possession of lands and have administration proceedings instituted, in which it is shown that other persons are interested in said lands as heirs, and it is determined by the county court that such other persons are not heirs, held, it was not the intention of the grantee of the life estate at the time of entering the possession of said lands to exclude the remainderman, and the statute of limitations would not commence to run until the entry of the decree determining such third persons not to be heirs. Held, further, that the 15 years' statute of limitations is applicable, and that this time had not expired prior to the commencement of this action.
Error from District Court, Seminole County; Geo. C. Crump, Judge.
Action by George Lincoln and Milford Roberts against Mace Herndon and J. J. Lindley. Judgment for defendants, and plaintiffs appeal. Reversed, with directions.
Davis & Patterson, for plaintiffs in error.
B. Dudley, R. M. Roddie, and Hagan & Gavin, for defendants in error.
¶1 This case was originally tried in the district court of Seminole county, wherein the plaintiffs in error George Lincoln and Milford Roberts, sued the defendants in error, Mace Herndon and J. J. Lindley, and as the parties appear in this court in the same order in which they appeared in the trial court, they will be referred to as plaintiffs and defendants, respectively.
¶2 This case was originally decided by the Commission, and the opinion herein written by Hon. A. L. Jeffrey, Commissioner, and filed December 4, 1928. At the same time an opinion was filed in the case of Chastain v. Larny, 134 Okla. 127, 272 P. 471, which has now become final. The conclusion reached and the principles announced in that case are, in so far as applicable to the facts in this case, approved. In that case the authorities are reviewed in a very able and comprehensive manner and the opinion shows much study and consideration on the part of the Commission and a correct conclusion is reached. It would serve no useful purpose to review the authorities here. In so far as the conclusion announced in Finley v. Thompson, 68 Okla. 250, 174 P. 535, was in conflict with the principle announced in Chastain v. Larney, supra, the former case was expressly overruled. And, in so far as In re Lewis' Estate, 100 Okla. 283, 229 P. 483, is in conflict with the opinion herein, that case is hereby expressly overruled.
¶3 The plaintiffs alleged substantially that they were tenants in common with the defendants in certain described lands, and that such lands were allotted to Bessie Doser, a Seminole freedwoman, and that the defendants were in possession thereof, collecting the rents and profits and failing to account to the plaintiffs therefor; that upon the death of Bessie Doser in 1902, she left surviving her, her brother, George Lincoln, and a nephew, Milford Roberts, and that George Lincoln inherited an undivided one-fourth interest and Milford Roberts an undivided one-eighth interest in her allotment; and asked for a partition thereof. It will be observed that the plaintiffs claim as heirs of Bessie Doser. The defendants answered by substantially denying all of the allegations of the plaintiffs' petition, except they admitted the lands were allotted as alleged, and that the allottee, Bessie Doser, had departed this life on the 21st day of April, 1904, intestate, and left to survive her, as her heirs at law, an unnamed infant and her husband, Morris Cudjo, and that the infant died three days subsequent to the death of its mother. That the father of Bessie Doser, the allottee, was Doser Barkus, an enrolled Seminole freedman, who departed this life during the year 1908, intestate, and without having conveyed his interest in the land, and left surviving him, as his heirs, Daniel, Sancho, Emma, and Lucy Barkus, all enrolled Seminole freemen; and that the mother of Bessie Doser was Tena, who had departed this life long prior to enrollment. They also plead that, by virtue of these facts and the applicable provisions of the Arkansas law of descent and distribution, on the death of Bessie Doser, her lands descended to and vested in the unnamed infant, subject to an estate by the curtesy in favor of Morris Cudjo, the surviving husband of the allottee, Bessie Doser, and the father of the unnamed infant, and upon its death, intestate, said lands descended to and vested in Doser Barkus, the father of the allottee and the grandfather of the infant, subject to the curtesy estate in Morris Cudjo. And that, upon the death of Doser Barkus, the fee descended and vested in his children, Daniel, Sancho, Emma, and Lucy Barkus. They further plead that Morris Cudjo had conveyed the premises under date of June 17, 1910, and that Sancho, Emma, Daniel, and Lucy Barkus had conveyed whatever interest they inherited from Doser Barkus on September 3, 1910; such conveyance being to one D. Campbell, through whom the defendants deraigned their title. The defendants also plead that administration proceedings had been had in the county court of Seminole county, Okla., on the estate of Bessie Doser, in which a decree of heirship was entered, wherein it was determined that Daniel, Sancho, Emma, and Lucy Barkus were the sole heirs at law of Bessie Doser, the allottee, subject to the estate by the curtesy in favor of Morris Cudjo, the surviving husband, and they plead such decree determining heirship to be res judicata as to the rights and claims of the plaintiffs. They further plead that, by virtue of the conveyances above mentioned and through mesne conveyances from the said D. Campbell, they entered into the possession of said premises, and that the claims and title of the plaintiffs had been barred by virtue of such possession continuing for more than 15 years prior to the commencement of this action, and by virtue of subdivision 4 of section 183, C. O. S. 1921, and section 8554 of the same statute, the defendants had acquired title to said lands by virtue of 15 years, adverse possession.
¶4 On the trial of the case, the following agreed statement of facts was stipulated and filed:
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