Moore v. Jefferson
| Citation | 1942 OK 10,190 Okla. 67,120 P.2d 983 |
| Decision Date | 13 January 1942 |
| Docket Number | Case Number: 29292 |
| Parties | MOORE v. JEFFERSON et al. |
| Court | Supreme Court of Oklahoma |
¶0 1. INDIANS--Federal act authorizing county courts to make conclusive determination of heirs of deceased citizen allottees of Five Civilized Tribes not applicable where all heirs are unrestricted.
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. SAME--Conclusiveness of county court's decree determining heirs of restricted citizen allottee, who left only unrestricted heirs, rendered as incident to final distribution of his unrestricted estate.
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 Okla. Stat. 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, deceased. From a judgment in favor of Willis Glenn Jefferson et al., J. L. Moore, intervener, has appealed. Affirmed.
J. S. Severson, of Tulsa, for plaintiff in error.
Joy G. Clayton and C. E. Baldwin, both of Tulsa, for defendants in error.
¶1 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. at L. 606, 25 U.S.C.A. 355, 375).
¶2 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 Okla. St. Ann. §§ 631-634). The heirs as named by the decree were Nettie Jefferson and two children, Ravella Jefferson and Willis Jefferson.
¶3 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 Okla. St. Ann. § 644.
¶4 Notice of final settlement of estate and determination of heirs was given as provided by section 1361, O. S. 1931, 58 Okla. St. Ann. § 553, and the order determining heirs was not appealed. However, within six months Moore filed his petition of 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.
¶5 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 interests in the allotment to Nettie Jefferson and Ravella Jefferson was erroneous.
¶6 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.
¶7 National Exploration Co. v. Robins, 140 Okla. 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 exist 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 Okla. 7, 31 P.2d 597. On failure to appeal, those heirs are bound 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 Okla. 553, 104 P.2d 437. The latter may appear within six months and receive a hearing. Id.
¶8 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 date thereof . I this he is wrong. The heirs in the instant case were not restricted within the meaning of the act. It clearly applies only in cases where there are restricted heirs, and to none other. The following portion of the act sufficiently substantiates our statement. It reads as follows:
"A determination of the question of fact as to who are the heirs of any deceased citizen allottee of the Five Civilized Tribes of Indians who may die or may have heretofore died, leaving restricted heirs, by the probate court of the State of Oklahoma having jurisdiction to settle the estate of said deceased, conducted in the manner provided by the laws of said state for the determination of heirship in closing up the estates of deceased persons, shall be conclusive of said question: . . . and if any person so served by publication does not appear and move to be heard within six months from the date of the final order, he shall be concluded equally with parties personally served or voluntarily appearing."
¶9 In Washington v. Stover, 169 Okla. 143, 36 P.2d 469, the court, referring to the Act of 1918, said:
¶10 This supports our conclusion that the act does not apply here. The deceased was a full-blood Indian and his allotment therefore restricted, but none of his heirs was restricted within the meaning of the act. They were all much less than full-blood Indians.
¶11 This case does not fall within the rule announced in Green v. Campbell, 187 Okla. 54, 100 P.2d 997, wherein the court, on authority of Glenn v. Lewis, 105 Fed. 2d (C.C.A.) 398, held in effect that by reason of the provisions of section 1 , Act of Congress of Jan. 27, 1933, 47 Stat. 777, Indian heirs of the half blood were restricted Indians insofar as their inherited interest in tax-exempt land was concerned. Here the allottee died prior to the Act of 1933. Therefore, said act does not apply.
¶12 So far as the allotments of deceased citizens of the Five Civilized Tribes are concerned, federal restrictions or conditions on the alienation thereof by the heirs of less than full blood had long since expired prior to 1933. By the term "restricted heirs," as used in the Act of 1918, Congress could have had in mind only those heirs whose conveyances of inherited lands were yet subject to approval by the proper authority as designated in the Acts of Congress (Act of May 27, 1908, 35 Stat. at L. 312, and amendments). Those heirs were Indians of the full blood. In the case In re Morrison's Estate, supra, the allottee died subsequent to the Act of 1933, and the parties prosecuted and defended the cause on the theory that the deceased left one or more restricted heirs and as if the federal act was...
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