Locust v. Caruthers

• Decision Date: 09 March 1909
• Docket Number: Case Number: 917 Ind Ter T
• Citation: 23 Okla. 373,1909 OK 58,100 P. 520
• Parties: LOCUST et al. v. CARUTHERS et al.
• Court: Oklahoma Supreme Court

1909 OK 58

100 P. 520

23 Okla. 373

LOCUST et al. v. CARUTHERS et al.

Case Number: 917 Ind Ter T

Supreme Court of Oklahoma

Decided: March 9, 1909

Syllabus

¶0 1. APPEAL AND ERROR--Dismissal--Defects in Proceedings for Review--Estoppel. When parties have tried a case as an equitable proceeding, before a master in chancery, without objection, they cannot, in this court, object that the case was an action at law, and that an appeal taken as from an equitable proceeding be dismissed for failure to comply with requirements of appeals in law cases.

2. SAME--Blll of Exceptions--Necessity--Probate Matters in Federal Courts. Proceedings in the United States courts in the exercise of the customary jurisdiction of probate courts are proceedings in equity. They are reviewable by appeal and not by writ of error, and no bill of exceptions is necessary to bring the evidence, affidavits, and other proceedings therein upon the record, because they are a part of it.

3. SAME--Report and Findings--Conclusiveness. When the parties to a suit in equity consent to a reference thereof to a master to hear and decide all the issues therein and report his findings, both of fact and of law, such findings of fact should have been treated as so far correct and binding as not to be disturbed, unless clearly in conflict with the weight of the evidence upon which they were made.

4. BASTARDS--Presumption of Legitimacy. In controversies involving heirship and the legitimacy of children, the presumption of law is in favor of legitimacy, and the reason back of this presumption is that the law encourages decency and morality and right living.

5. SAME. After a long lapse of time, where proof is given that certain persons are the children of a certain man and woman and were so recognized and treated by the parents and other members of the family, legitimacy will be presumed, even though there was no direct evidence of the marriage of the father and mother.

J. L. Harnage, Crawford, & Bolen and Galbraith & McKeown, for appellants.--Appeal, as distinguished from writ of error, was proper method for bringing the cause to appellate court for review: Kimberly v. Arms, 129 U.S. 512; Quinby v. Conlan, 104 U.S. 420; Hoover, etc., Co. v. Featherstone, 111 F. 81. The court erred in disregarding and setting aside the findings made by the master: Rainwater-Bradford Hat Co. v. McBride, 3 Ind. T. 621; Barton v. Halsey 4 Ind. T. 260; Kimberly v. Arms, 129 U.S. 512; Porter v. U.S. (Ind. T.) 104 S.W. 855; Taylor v. Sweet (La.) 22 Am. Dec. 156; Kelly's Heirs v. McGuire, 15 Ark. 555; 8 Enc. of Ev. 165; In re Robb's Estate, 37 S. C. 19; In re Estate of Pickens, 163 Pa. 14.

Blanton & Andrews and R. T. Jones, for appellees.--Writ of error was the required method for bringing cause up for review and the appeal should be dismissed: Behn Mayer & Co. v. Campbell (U.S.) 51 L. Ed. 857; U.S. ex rel. v. Fidelity, etc., Co., 147 F. 228; Page v. Ralph, 55 Ark. 52; In re Crutchfield (Ind. T.) 64 S.W. 545; Ormsby v. Webb (U. S.) 33 L. Ed. 805; 2 Cyc. 1081. On conclusiveness of master's report: Kimberly v. Arms, 129 U.S. 512; Shipman v. Fletcher (Va.) 22 S.E. 458; Ennesser v. Hudek (Ill.) 48 N.E. 673. On proof of marriage by cohabitation and repute: Stevens v. Stevens (N. J.) 38 A. 460; White v. White, 82 Cal. 427; Blackburn v. Crawford, 3 Wall. 175; Jones v. Jones, 28 Ark. 19; Clayton v. Wardell, 4 N.Y. 230; In re Wallace's Estate (N. J.) 25 A. 260; Chamberlain v. Chamberlain, 71 N.Y. 423; Norman v. Goode, 113 Ga. 121; Eldred v. Eldred (Va.) 34 S.E. 477.

Appeal from the United States Court for the Southern District of the Indian Territory, at Ada; Joseph T. Dickerson, Judge.

Application to the United States Court for the Southern District of the Indian Territory, in probate, by Debora Caruthers and others, claiming to be the next of kin of Robert L. Hensley, deceased, and entitled to his estate, and asking that an order of distribution of the estate of Margaret Locust and another be set aside. There was a decree in favor of Debora Caruthers and such others, and Margaret Locust and such others appealed to the United States Court of Appeals of the Indian Territory, whence the cause was transferred to the Supreme Court of the State of Oklahoma. Reversed and remanded.

J. L. Harnage, Crawford, & Bolen and Galbraith & McKeown, for appellants

Blanton & Andrews and R. T. Jones, for appellees

KANE, C. J.

¶1 This is an appeal from a decree of the United States Court for the Southern District of the Indian Territory, rendered in probate, denying the claim of the appellants to be the legal heirs and next of kin of Robert L. Hensley, deceased, and their right to participate in the distribution of his estate. Robert L. Hensley, an Indian citizen, residing in the Southern district of the Indian Territory, died intestate and without issue, leaving an estate of considerable value. An administrator was duly appointed and took charge of the property. Margaret Locust and Johanna Parish, the appellants, then made proof of heirship, and an order of partial distribution of the estate was entered in said cause. The appellees then made application to the court claiming that they were the next of kin of the deceased and entitled to his estate, and alleged that appellants' claim was fraudulent and untrue, and asked that the order of distribution be set aside. This application was afterwards granted, the order of distribution vacated, and said cause was upon agreement of the parties and by order of the court referred to L. D. Ratliff, as master in chancery, to take testimony and report upon the law and the facts. The master found in favor of the claim of appellants that they were the next of kin of the deceased and entitled to his estate and recommended a decree accordingly. Exceptions were filed to this report by the appellees. The court sustained the exceptions, set aside the findings and recommendations of the master, and entered a decree in favor of the appellees. An appeal from this decree was prayed, allowed, and perfected to the United States Court of Appeals of the Indian Territory, and after statehood the cause was transferred to this court under the terms of the Enabling Act and Schedule to the Constitution.

¶2 A preliminary question of practice arises upon the motion of appellees to dismiss the appeal. It is urged that writ of error, and not appeal, is the proper method of bringing causes at law into the appellate court for review, and where an appeal is resorted to this court will dismiss the same. This, we think, is the general rule; but the case at bar, admitting it is an action at law, it taken out of the rule by the conduct of the parties in treating it as a suit in equity and proceeding with it as such before a master in chancery without objection. It has been held by the Court of Appeals of the Indian Territory, in Howell et al. v. Brown, 5 Indian Terr. 718, 83 S.W. 170, that:

"When parties have tried a case as an equitable proceeding, before a master in chancery, without objection, they cannot, in this court, object that the case was an action at law, and that an appeal, taken as from an equitable proceeding, be dismissed for failure to comply with requirements of appeals in law cases, under section 4927, Mansf. Dig. (section 3132, Ind. T. Ann. St. 1889), providing that errors in mode of procedure are waived by failure to object at the time."

¶3 Furthermore the Court of Appeals of the Indian Territory in Re Berryhill's Estate, 104 S.W. 847, and the Circuit Court of Appeals for the Eighth Circuit in Morrison v. Burnette, Curator, etc., 154 F. 617, 83 C.C.A. 391, have held that matters of probate arising in the United States District Courts of the Indian Territory can be reviewed only by appeals to the United States Court of Appeals in said territory. In Laurel Oil & Gas Co. v. Galbreath Oil & Gas Co., 165 F. 162, it was held by the Circuit Court of Appeals for the Eighth District that:

"Proceedings in the United States courts in the exercise of the customary jurisdiction of probate courts are proceedings in equity. They are reviewable by appeal and not by writ of error, and no bill of exceptions is necessary to bring the evidence, affidavits, and other proceedings therein upon the record, because they are a part of it."

¶4 The foregoing cases seem to settle the question of practice in favor of appellants, and the motion to dismiss is accordingly overruled.

¶5 Various grounds are assigned upon which counsel for appellants insist that the judgment of the court below should be reversed, but under our view of the case it will only be necessary to notice the fifth and sixth assignments, which may be considered together. These assignments are:

"Fifth. The court erred in disregarding and setting aside the findings of fact made by the master in chancery. Sixth. The court erred in disregarding and setting aside the conclusions of law found by the master."

¶6 We believe these grounds are well taken. The reference was made to the master by the consent of all parties and with authority to take testimony and report upon the law and the facts. There was really but one question of fact for the consideration of the master, and that was: Were Sam Hensley and Lydia Tehee lawfully married? The master found that they were: and we believe that his findings are not in conflict with the weight of the evidence, and that it was error for the court below to disregard and set them aside and render a decree on the evidence as it appeared to him.

¶7 The case at bar, so far as this particular question is concerned, is identical in principle with Kimberly v. Arms, 129 U.S. 512, 9 S. Ct. 355, 32 L. Ed. 764. In the Kimberly Case, by consent and request of all the parties, Hon. Richard A. Harrison was appointed special master to hear the evidence and decide all the issues between the parties and make his report to the court, including his findings of law and fact, together with all the evidence introduced before him....