Palmer v. King

• Decision Date: 01 July 1919
• Docket Number: 9483.
• Parties: PALMER et al. v. KING et al.
• Court: Oklahoma Supreme Court

183 P. 411

75 Okla. 276, 1919 OK 199

PALMER et al. v. KING et al.

No. 9483.

Supreme Court of Oklahoma

July 1, 1919

Rehearing Denied Sept. 9, 1919.

Syllabus by the Court.

A full-blood Choctaw Indian woman died in 1906 possessed of an allotment of land. Her nearest relatives on her father's side were an uncle and cousin, and on her mother's side were cousins, all being Indians by blood. The paternal heirs claimed that section 2532 of Mansfield's Digest of the Laws of Arkansas controlled the devolution of her estate, and that they were the sole owners thereof. The maternal heirs claimed that section 2531, supra, controlled, and that they take an undivided one-half of her estate. Held, that section 2531 controls, and that an undivided one-half of the allotment possessed by the deceased at the time of her death goes to the maternal heirs, and the other half goes to the paternal heirs.

Where general terms or expressions in one part of the statute are inconsistent with more specific or particular provisions in another part, the particular provision will be given effect as a clearer and more definite expression of the legislative will.

Error from District Court, Haskell County; W. H. Brown, Judge.

Suit by Rachael King and others against N.W. Palmer and others. Judgment for plaintiffs, and defendants bring error. Affirmed.

A. L Beckett, of Okmulgee, and J. E. Whitehead, of Oklahoma City for plaintiffs in error.

G. A Holley and E. D. Means, both of Stigler, for defendants in error.

HIGGINS J.

Charlotte Winlock, a full-blood Choctaw Indian woman, departed this life in what is now Haskell county, Okl., January 14, 1906, the owner of an allotment of land by virtue of her citizenship in said tribe, leaving surviving her Rufus Winlock, a paternal uncle, Martin Compelube, a paternal cousin, and Rachel King and other defendants in error, maternal cousins; all heirs, both paternal and maternal, being of Indian blood. In May, 1909, the paternal heirs deeded a portion of the lands allotted to the deceased, and from this deed the other parties plaintiffs in error derive their title.

In February, 1914, this suit was commenced by the maternal cousins for an undivided one-half interest in the lands, to wit: West half of the southwest quarter and the southwest quarter of the northwest quarter of section 36, township 9 north, range 21 east, Haskell county, state of Oklahoma. In the answer of plaintiffs in error they contend that the paternal heirs take all the lands involved, to the exclusion of the maternal heirs, and ask for judgment accordingly. The deed of the paternal heirs was executed in May, 1909, prior to the rendition of the opinion in Shulthis v. McDougal, 170 F. 529, 95 C. C. A. 615, and at a time when many believed the estate was a new acquisition. The property thus would go to the paternal heirs in the instant case, if this had been such an estate.

The parties agreed upon the facts, but disagreed as to what section of chapter 49, Mansfield's Digest of the Laws of Arkansas, controls; plaintiffs in error's contention being that section 2532 controls, and defendants in error insisting that section 2531 controls. These sections are as follows:

"2531. In cases where the intestate shall die without descendants, if the estate come by the father, then it shall ascend to the father and his heirs; if by the mother, the estate, or so much thereof as came by the mother, shall ascend to the mother and her heirs; but if the estate be a new acquisition it shall ascend to the father for his lifetime, and then descend, in remainder, to the collateral kindred of the intestate in the manner provided in this act; and, in default of a father, then to the mother, for her lifetime; then to descend to the collateral heirs as before provided.

2532. The estate of an intestate, in default of a father and mother, shall go, first, to the brothers and sisters, and their descendants, of the father; next, to the brothers and sisters, and their descendants, of the mother. This provision applies only where there are no kindred, either lineal or collateral, who stand in a nearer relation."

If section 2532 controls, then the plaintiffs in error take all; but if section 2531 controls, then defendants in error take an undivided one-half of the real estate involved, and plaintiffs in error take the other half. The trial court held that section 2531 controlled the devolution of the real estate of the deceased, and that each line of heirs took an undivided one-half interest, from which judgment plaintiffs in error appealed to this court.

This court and the Supreme Court of the United States have passed upon two cases in which the facts are similar to the case at bar. Brady v. Sizemore, 33 Okl. 169, 124 P. 615, and 235 U.S. 441, 35 S.Ct. 135, 59 L.Ed. 308; Roberts v Underwood, 38 Okl., 376, 132 P. 673, and 237 U.S. 386, 35 S.Ct. 608, 59 L.Ed. 1007. The opinions of the Supreme Court of the United States are conflicting as to the rights of the paternal and maternal heirs. In the first case it is held that the paternal heirs took all, to the exclusion of the maternal heirs, and in the second case held that the paternal and maternal heirs each took an undivided one-half interest. This conflict has apparently come about for the reason that each case was presented on other issues, and not upon the issue as to the conflicting rights of these two lines of heirs. In both ...