Redwine v. Ansley

• Citation: 32 Okla. 317,122 P. 679,1912 OK 272
• Decision Date: 19 March 1912
• Docket Number: Case Number: 1243
• Parties: REDWINE et al. v. ANSLEY et al.
• Court: Oklahoma Supreme Court

1912 OK 272

122 P. 679

32 Okla. 317

REDWINE et al. v. ANSLEY et al.

Case Number: 1243

Supreme Court of Oklahoma

Decided: March 19, 1912

Syllabus

¶0 1. INDIANS--Allotted Lands--Liability for Debts of Deceased Allottee. Under the treaty between the United States and the Choctaw and Chickasaw Tribes of Indians, known as the "Atoka Agreement," the allotted lands of the deceased members of either of such tribes, after such lands have passed to the heirs of the deceased, cannot be sold by creditors of deceased to satisfy debts. or obligations incurred by him prior to the time at which such lands were to become alienable.

2. SAME--Exemptions. Rents and profits from the allotted lands of a deceased Choctaw or Chickasaw Indian, accruing after the death of allottee, after they have been collected and paid to the heirs, cannot be subjected by creditors of deceased to the payment of debts or obligations incurred by deceased prior to the time his allotments were alienable.

Error from District Court, Pittsburg County; Preslie B. Cole, Judge.

Action by W. N. Redwine and others against William Ansley and others. Judgment sustaining defendants' demurrer, and plaintiffs bring error. Affirmed.

W. N. Redwine and Wiley H. Jones, for plaintiffs in error.

Arnote & Monk, for defendants in error.

HARRISON, C.

¶1 This was an action, filed April 12, 1909, in the district court of Pittsburg county by W. N. Redwine and Wiley H. Jones, in behalf of themselves and other alleged creditors of W. H. Ansley, deceased, against Wm. Ansley, Gilbert Ansley, Joseph Ansley, and Irene Richards, heirs of deceased. The deceased, a Choctaw Indian by blood, owned, at the time of his death, certain tracts of land allotted to him under the provisions of the treaty known as the "Atoka Agreement" and "Supplemental Agreement," between the United States and the Choctaw and Chickasaw Tribes of Indians. The plaintiffs seek judgment against the heirs of deceased for debts incurred by deceased during his lifetime, and to subject the estate of deceased, after it had passed to the heirs, to the satisfaction of said debts, and ask for a receiver to take charge of the estate and dispose of same in satisfaction of said indebtedness. The petition in error, petition in the court below, demurrer to same, and order of the court below sustaining the demurrer, constitute the material parts of this record. The petition reads as follows:

"W. N. Redwine and Wiley H. Jones, Plaintiffs, v. William Ansley, Gilbert Ansley, Joseph Ansley, Irene Richards, Defendants. Petition.

"Plaintiffs, who sue in behalf of themselves and all other creditors, respectfully show to the court that W. H. Ansley departed life, testate, on or about the 1st day of April, 1905, and naming in his last will and testament W. Walker as his executor; that the said W. H. Ansley was a Choctaw Indian by blood, and as such died seised and possessed of an allotment of land in the Choctaw Nation, which is described as follows, to wit: The N.E. 1/4 of the N.E. 1/4, and the S. 1/2 of the N.E. 1/4, and the S.E. 1/4 of the S.E. 1/4 of the N.W. 1/4 of section 29, and the W. 1/2 of the S.W. 1/4 of the N.W. 1/4 of section 28, all in township 6 N., range 14 E., in Pittsburg county, state of Oklahoma, and included in homestead patent No. 2,111. The N.E. 1/4 of the S.E. 1/4 of the N.W. 1/4, and the S.W. 1/4 of the S.E. 1/4 of the N.W. 1/4, and the S. 1/2 of the S.W. 1/4 and the 1/2 of the N. 1/2 of the S. 1/2 of section 29, township 6 N., range 4 E., and the S.E. 1/4 of the N.E. 1/4 of section 16, township 5 N., range 14 E., Pittsburg county, Oklahoma, and all included in allotment patent No. 1,489, amounting in all to 310 acres.

"Plaintiffs state further to the court that this is all the property of which said deceased, W. H. Ansley, died seised and possessed, in so far as they have any knowledge, except a small amount of personal property, which was not more than sufficient, if sufficient, to pay the funeral expenses of the deceased and the expenses incident, to his last illness.

"Plaintiffs further state that the last will and testament of the deceased, W. H. Ansley, is in the following words and figures, to wit:

"'In the name of God, Amen. I, William Henry Ansley, being of sound mind and memory, but knowing the uncertainty of human life, do now make and publish this my last will and testament, that is to say: Notify W. A. Walker of McAlester, I. T., and request him to be appointed administrator of my estate, pay all debts and divide the remainder equally among two brothers, one sister and my father and W. A. Walker. William Henry Ansley. [Seal.]

"'Signed, sealed, published and declared by the said William Henry Ansley, the testator, as and for his last will and testament, and we, at his request and in his presence and in the presence of each other, have hereto subscribed our names as witnesses thereto, this 28th day of April, 1904. [Signed.] John Raleigh. Frank Smith. Frank Craig. H. E. Williams.'

"That the said W. H. Ansley, deceased, left surviving him as his sole next of kin his father, Wm. Ansley, and two brothers, Gilbert and Joseph Ansley, and one sister, Irene Richards, formerly Ansley, who are all residents of Pittsburg county, Okla.

"Plaintiffs further state that the said executor, W. A. Walker, duly qualified as such and entered upon the discharge of his duties, received the various claims, and filed them, that were exhibited to him, as executor, against the estate of W. H. Ansley, deceased, and paid off such obligations as the personal property of the deceased which came to his hands would meet, and proceeded, as executor of said estate, to take charge of the allotment of the deceased, heretofore described, and rent or lease the same to various tenants, and this he continued to do up until about October, 1907, and in the meantime there accumulated upon his hands, as rents and profits arising from said allotment, something more than the sum of $ 700.

"Plaintiffs further show to the court that the said deceased, W. H. Ansley, was never married; that he never became the head of a family; that he left surviving him no descendants, but only ascendants and collateral as next of kin, as heretofore stated. Plaintiffs further show to the court that on or about the 4th day of October, 1907, the defendant Wm. Ansley, father of the deceased W. H. Ansley, contending that he was entitled by inheritance to a life estate in said allotment, and that the deceased, W. H. Ansley, being a Choctaw Indian by blood, was without power to convey said allotment in his will, made application to the United States Court at McAlester to have said allotment taken out of the hands of said executor and turned over to him as a life tenant, and an order was made by the court accordingly.

"Plaintiffs further state that a short time subsequent to this action, as they are informed and believe, that the rents and profits in the hands of said executor accruing from said allotment, as heretofore described, were also by said executor, in connection with said allotment, transferred and turned over to said Wm. Ansley, who is now holding, occupying, using, and controlling said allotment and appropriating to his own use the rents and profits of said allotment turned over or transferred to him by the executor, as before stated.

"Plaintiffs further state that they are bona fide creditors of the said W. H. Ansley, deceased; that a short time prior to his death they became surety for him to the First National Bank of McAlester in the sum of $ 95, as they now remember, which sum matured, as they believe, on or about the 11th day of May, 1905, and which, not being discharged at maturity or before, either by said W. H. Ansley or his executor, W. A. Walker, has been by plaintiffs renewed from time to time, they executing in said renewals to said bank their individual note, until the sum now due amounts, perhaps, or about as they remember, to $ 130 or probably more, which plaintiffs allege to be justly due them as sureties of the said W. H. Ansley, deceased, and that the same is subject to no offset or credit of which they have any knowledge. A copy of the note representing the amount now due will be found as an exhibit to this complaint, and marked 'A.'

"Plaintiffs further show to the court that the said W. H. Ansley, deceased, is largely indebted to various other creditors, to wit, to the First National Bank of McAlester, or to the sureties on his undertaking to the said bank, in the sum of $ 530, with interest, to the American National Bank or to the sureties on his undertaking, in the sum of $ 75, with interest, to W. A. Walker in the sum of $ 365.50, with interest, to C. Springer, or the sureties on his undertaking to said Springer, in the sum of $ 380.84, and to Coal City Savings Bank or its successors, or the sureties on his undertaking, in the sum of $ 332, with interest, aggregating, without interest, the sum of $ 1,773.34. Said W. H. Ansley, as plaintiffs are informed and believe, also owes various other persons various amounts, and plaintiffs state that, as they are informed and believe, there are no assets in the hands of said executor with which to liquidate the debts of the deceased, and that said executor is unable to pay the same, and that said estate of the deceased is insolvent.

"Plaintiffs further state that, while it might be true, owing to the limitations with which the testamentary capacity of a Choctaw Indian by blood have been alleged to be hedged about, that the said W. H. Ansley, deceased, while not in any sense intending to admit this to be true, might have been incapacitated to dispose of his allotment by last will and testament, still, this restriction or want of power to convey by last will and testament would, in no sense, signify or indicate that said allotment, upon the death of said W. H. Ansley, deceased, passed to his next of kin, free, from the claims and rights of creditors, and especially would this be true

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