Moore v. Jefferson, 29292.

• Court: Supreme Court of Oklahoma
• Citation: 120 P.2d 983,190 Okla. 67,1942 OK 10
• Docket Number: 29292.
• Parties: MOORE v. JEFFERSON et al.
• Decision Date: 13 January 1942

120 P.2d 983

190 Okla. 67, 1942 OK 10

MOORE
v.
JEFFERSON et al.

No. 29292.

Supreme Court of Oklahoma

January 13, 1942

Syllabus by the Court.

1. The Act of Congress of June 14, 1918, 40 Stat. at L. 606, 25 U.S.C.A. § 375, authorizing the probate courts of Oklahoma to make conclusive determination of the heirs of a deceased citizen allottee of the Five Civilized Tribes, applies specifically to those cases where the allottee leaves one or more restricted heirs, and does not apply in cases where all the heirs are unrestricted.

2. A decree of the county court determining heirs of a restricted citizen allottee of the Five Civilized Tribes, who dies leaving only unrestricted heirs, rendered as incident to final distribution and settlement of his unrestricted estate, unless appealed from, is conclusive of that question, and binding alike as to the property of the deceased subject to payment of debts and the property not subject to such debts, and all interested parties, except in certain instances of legal disability, are bound by the notice given pursuant to section 1361, O.S.1931, 58 Okl.St.Ann. § 634.

Appeal from District Court, Tulsa County; Harry L. S. Halley, Judge.

Proceedings in the matter of the final settlement of the estate and determination of heirs of Thomas Jefferson, a deceased allottee of the Creek Nation, wherein J. L. Moore intervened. From an adverse judgment, intervener appealed, which appeal was opposed by Willis Glenn Jefferson, a minor, by Joy G. Clayton, guardian, and Nettie Jefferson.

Affirmed.

J. S. Severson, of Tulsa, for plaintiff in error.

Joy G. Clayton and C. E. Baldwin, both of Tulsa, for defendants in error.

GIBSON, Justice.

This appeal is from a judgment of the district court of Tulsa county affirming the order of the county court in the matter of the distribution and settlement of the estate and the determination of the heirs of a deceased allottee of the Creek Nation, Act of Congress, June 14, 1918, 40 Stat. 606, 25 U.S.C.A. §§ 355, 375.

The allottee aforesaid died in Tulsa county during the year 1930. Soon thereafter Nettie Jefferson, his widow, was appointed administratrix of his estate. The deceased's estate consisted of his restricted tribal allotment which is the main subject of this controversy, and certain unrestricted assets. In due course the county court proceeded to make final distribution and settlement of the estate and, as incident thereto, to determine the heirs of the decedent, secs. 1358-1361, O.S.1931, 58 Okl.St.Ann. §§ 631-634. The heirs as named by the decree were Nettie Jefferson and two children, Ravella Jefferson and Willis Jefferson.

In the meantime plaintiff in error Moore had purchased the interests of Nettie Jefferson and Ravella Jefferson in the above mentioned allotment, but the county court distributed the same to the heirs aforesaid in undivided interests of one-third to each heir, and failed to take into account the sale of the interests to Moore and to distribute the same to him as provided by section 1366, O.S.1931, 58 Okl.St.Ann. § 644.

Notice of final settlement of estate and determination of heirs was given as provided by section 1361, O.S.1931, 58 Okl.St.Ann. § 634, and the order determining heirs was not appealed. However, within six months Moore filed his petition for intervention (25 U.S.C.A. 375) whereby he sought to set aside the decree. The county court denied his petition as also did the district court on appeal. The judgment of the district court is now here for review.

Moore says the decree of heirship and final distribution was void for the reason that he had no notice of the proceedings. He says further that the evidence fails to show that Willis Jefferson was an heir, and further that the decree assigning his own interest in the allotment to Nettie Jefferson and Ravella Jefferson was erroneous.

But Moore did have full statutory notice of the administration proceedings relating to final settlement and determination of heirs. Notice was given by publication to all parties interested as provided by said section 1361. Decree of heirship on statutory notice in such case binds all parties claiming an interest except those under legal disability. National Exploration Co. v. Robins, 140 Okl. 260, 283 P. 236. And this applies to the heirs of any citizen of the Five Civilized Tribes where none of said heirs is restricted or, if restricted, had actual notice, and there exists assets subject to administration. Where unrestricted assets exist the county court has jurisdiction to administer thereon under the general probate statutes, and, as incident thereto, to determine the heirs of the Indian to both his restricted and unrestricted estate, notwithstanding said heirs may be restricted. Hardridge v. Hardridge, 168 Okl. 7, 31 P.2d 597. On failure to appeal, those heirs are bound [120 P.2d 985] by the decree as in other cases, except restricted heirs who have had no actual notice of the proceedings, 25 U.S.C.A. § 375; In re Morrison's Estate, 187 Okl. 553, 104 P.2d 437. The latter may appear within six months and receive a hearing. Id.

In the instant case the decree of the county court had become final for failure of an appeal in the time provided by law. But Moore asserts that under the Act of Congress, supra, he was authorized to appear and contest the decree within six months from the...