Pigeon v. Buck

• Decision Date: 15 April 1913
• Citation: 131 P. 1083,38 Okla. 101,1913 OK 259
• Parties: PIGEON ET AL. v. BUCK ET AL.
• Court: Oklahoma Supreme Court

131 P. 1083

38 Okla. 101, 1913 OK 259

PIGEON ET AL. v. BUCK ET AL.

Supreme Court of Oklahoma

April 15, 1913

Withdrawn corrected, and refiled April 23, 1913.

Rehearing denied May 6, 1913.

Syllabus by the Court.

Mansfield's Digest of Ark. c. 49, § 2531, provides that, on the death of a person intestate, unmarried, and leaving no children, the estate, if it come from the father, shall go to the father and if from the mother shall go to the mother, "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." Held, that the allotment of a full-blood citizen of the Creek Nation, duly enrolled as such, who died on July 12, 1905 after receiving her certificates and patents thereto, was not a new acquisition, but came to her by the blood of her tribal parents, who on her death took full title thereto to the exclusion of the brothers and sister of the deceased; all of full blood. Following Shulthis v. McDougal et al., 170 F. 529, 95 C. C. A. 615.

Error from District Court, Hughes County; John Caruthers, Judge.

Action by Lena Pigeon and others against William Buck and others. Judgment for defendants, and plaintiffs bring error. Affirmed.

Charles F. Bliss and Lewis C. Lawson, both of Holdenville, for plaintiffs in error.

Crump & Skinner, of Holdenville, for defendants in error.

TURNER J.

On September 13, 1910, plaintiffs in error, Lena Pigeon, Jimmie Larney, Joseph Pigeon, and Jakeman Pigeon, the two last-named minors, by John Pusley, their guardian, sued, in the district court of Hughes county, the defendants in error, William Buck, Willie Harjo, John Pigeon, and Mate Pigeon, to clear their title.

The petition substantially states that Lowiney Harjo, a full-blood citizen of the Creek Nation and duly enrolled as such, on July 12, 1905, after receiving her certificates and patents thereto, died intestate, seised of her allotment (describing it) in the Creek Nation; that she left no child or children or their descendants her surviving, leaving her surviving plaintiffs, Lena Pigeon, Jimmie Larney, Joseph Pigeon, and Jakeman Pigeon and her father and mother, John Pigeon and Mate Pigeon, also her husband, Willie Harjo, all full-blood citizens of the Creek Nation and duly enrolled as such; that thereafter the father and mother and the husband of deceased conveyed said land by warranty deed to the defendant William Buck, which was duly approved by the county court of Hughes county and filed for record; that the plaintiff's brothers and sister of deceased are her sole heirs, and as such entitled to inherit the property, because they say the same was a new acquisition; and prayed that the court so adjudge and decree and clear their title of the deeds made by the father and mother to said Buck. To the judgment of the court sustaining a demurrer to their petition, plaintiffs bring the case here.

Both sides agree that the devolution of this allotment is governed by chapter 49 of Mansfield's Digest of the statute of Arkansas, and particularly subsection 2 of section 2522, construed in connection with section 2531. Said subsection reads: "If there be no children, then to the father, then to the mother; if no mother, then to the brothers and sisters, or their descendants, in equal parts."

And section 2531: "In cases where the intestate shall die without descendants, if the estate comes 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...