Ross v. Wertz

• Decision Date: 29 January 1918
• Docket Number: 7473.
• Citation: 172 P. 968,70 Okla. 56,1918 OK 61
• Parties: ROSS v. WERTZ et al.
• Court: Oklahoma Supreme Court

172 P. 968

70 Okla. 56, 1918 OK 61

ROSS v. WERTZ et al.

No. 7473.

Supreme Court of Oklahoma

Jan. 29, 1918

Rehearing Denied May 21, 1918.

Syllabus by the Court.

The inheritance of lands allotted to a Creek Freedman, who died after the taking effect of the Creek Supplemental Agreement of June 30, 1902, c. 1323, 32 Stat. 500, and before statehood, is cast according the chapter 49, Mansfield's Digest of the Statutes of Arkansas, as modified by section 6 of such agreement.

Subject to dower or to title by curtesy consummate, the inheritance of the allotted lands of a Creek Freedman, none of whose ancestors were of Creek blood or of Creek citizenship, who died intestate without issue, in the year 1903, is cast upon the nearest kin of the decedent of the nearest common ancestral lineage who are Creek citizens or Creek descendants of Creek citizens. In case of failure of such kinsmen, so qualified, the surviving spouse, if a Creek citizen or Creek descendant of a Creek citizen, may take. In case of entire failure of such kinsmen or surviving spouse, meeting the requirements imposed, the inheritance shall go to noncitizen heirs in the order named in Mansfield's Digest of the Statutes of Arkansas.

If a Creek Freedman, none of whose ancestors were of Creek blood or of Creek citizenship, died in 1903 intestate and without issue, the fact that kinsmen, who are, themselves, Creek citizens, must trace their kinship to the decedent only through noncitizen blood, is not of itself a bar to inheriting allotted lands of the decedent.

Two brothers, Cherokee Freedman, one of whom is dead and the other living, would inherit, if both were living and not barred because of their noncitizenship in the Creek Nation the allotment of a deceased Creek Freedman. The deceased brother left one child now living; the living brother has eight living children and one living grandchild, the offspring of his deceased child. The children of both brothers, including the grandchild, are Creek citizens through maternal blood. The deceased child likewise was a Creek citizen. The intestate died in the year, 1903. Held, that under chapter 49, Mansfield's Digest of the Statutes of Arkansas, construed in connection with section 6 of the Creek Supplemental Agreement of June 30 1902, such living children, belonging to the same class of kin, take equally in their own right, and the grandchild takes its parent's interest, by representation, each of the children and the grandchild named taking one-tenth interest in the inheritance.

Commissioners' Opinion, Division No. 1. Error from District Court, Wagoner County; J. H. Sutherlin, Special Judge.

Action against B. F. Wertz and others. Judgment for the named defendant, and David Ross brings error. Reversed and remanded for a new trial.

Dan M Meredith, of Muskogee, W. P. Z. German, of Wichita, Kan., and Aldrich Blake, of Muskogee, for plaintiff in error.

Jess W. Watts, E. A. Summers, and E. M. Gallaher, all of Wagoner, for defendant in error B. F. Wertz.

Grant Foreman and J. D. Simms, both of Muskogee, amici curae.

STEWART C.

Betsy Primous a Creek Freedman, died intestate without issue in July, 1903, leaving as her surviving husband, Joe Primous, a Creek Freedman who remarried, after which he and his second wife conveyed the allotment of Betsy Primous to J. H. White under whom the defendant in error B. F. Wertz claims title by deed of conveyance. Joe Primous died in 1905. An action was begun in the district court by one of the alleged heirs of Betsy Primous to remove cloud from title and cancel the deeds under which B. F. Wertz claimed the land. Numerous defendants were made, and several pleas of intervention were filed in which different persons claimed to be heirs of Betsy Primous. Trial was had, and the court found that the land descended to Joe Primous as the sole heir of his deceased wife, and that B. F. Wertz, under the deeds of conveyance, was the owner of the same, all other claimants being barred. From such judgment the plaintiff in error, David Ross, duly appeals to this court.

This case involves a construction of section 6 of the Supplemental Creek Treaty, approved June 30, 1902, in connection with chapter 49, Mansfield's Digest of the Laws of Arkansas. Section 6 reads:

"The provisions of the act of Congress approved March 1, 1901 (31 Stat. L. 861), in so far as they provide for descent and distribution according to the laws of the Creek Nation, are hereby repealed and the descent and distribution of land and money provided for by said act shall be in accordance with chapter 49 of Mansfield's Digest of the Statutes of Arkansas now in force in Indian Territory: Provided, that only citizens of the Creek Nation, male and female, and their Creek descendants shall inherit lands of the Creek Nation: And provided further, that if there be no person of Creek citizenship to take the descent and distribution of said estate, then the inheritance shall go to non-citizen heirs in the order named in said chapter 49."

It has been held by this court that, by virtue of the terms of the Enabling Act, and because of the adoption of the Constitution, Creek lands and money, since the advent of statehood, descend under the laws of this state, modified by the provisos in the latter part of the section quoted. Thompson v. Cornelius, 155 P. 602; Jefferson v. Cook, 155 P. 852; Hughes et al. v. Bell et al., 155 P. 604. However, in this case, the intestate having died in 1903, the inheritance is cast under chapter 49, Mansfield's Digest of the Laws of Arkansas, as limited by the provisos of section 6, supra. Section 2522, chapter 49, Mansfield's Digest, reads in part:

"If there be no children, nor their descendants, father, mother, brothers or sisters, nor their descendants, then to the grandfather, grandmother, uncles and aunts and their descendants, in equal parts, and so on, in other cases, without end, passing to the nearest lineal ancestor, and their children and their descendants, in equal parts." And section 2528 reads:

"If there be no children, or their descendants, father, mother, nor their descendants, or any paternal or maternal kindred capable of inheriting, the whole shall go to the wife or husband of the intestate. If there be no such wife or husband, then the estate shall go to the state."

Section 2531 in part reads:

"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."

Keeping in mind section 6, supra, and the foregoing quotations from Mansfield's Digest, it becomes our duty to discover those upon whom the inheritance of the allotment is cast. We find that Betsy Primous, an adopted Creek, was born ten years before our Civil War, and was the illegitimate child of Chloe Webber, deceased, a Cherokee slave. In the trial had, the names of four men were entered for the honor of being the father of the intestate. The trial court properly found that it was impossible to tell who was her father; that no man had ever recognized her as his child. The evidence shows that none of her ancestors were either of Creek blood or Creek citizenship, and that her nearest living blood relatives of Creek citizenship consist of plaintiff in error, David Ross, also Patsy Harrison, Lizzie Johnson, Lagonia Harlen, Bessie Cordrey, Annie Williams, Henry Ross, Jr., John Ross, Jessie Ross, and Waitie Ross. David Ross is the son of Henry Ross, Sr., deceased. Eight of the others named are the children of Joe Ross, brother to Henry Ross, Sr., deceased. Waitie Ross is a Creek citizen, and the only issue of a deceased child of Joe Ross. Henry Ross, Sr., and Joe Ross were Cherokee Freedmen, but the children of each are Creek citizens through the blood of their respective mothers. The two brothers were the sons of Louisa Webber, a sister of Chloe Webber, mother of the deceased. They were therefore first cousins of the decedent, their children of course being her cousins once removed. Counsel denominated them as her second cousins, but, accurately speaking, second cousins belong to the same class in the descending scale from a common ancestry, the next class below first cousins. Children of brothers and sisters are first cousins. Children of first cousins, are second cousins, and so on down the scale. Brothers and sisters have the same blood; cousins, if of the whole blood, have each a half, and second cousins each a fourth of a common strain.

The evidence also shows that Jack Smith, deceased, was an enrolled Creek Freedman, and a half brother of Sam Webber who was the father of Chloe Webber. Smith has living children, who would of course be half first cousins of Chloe Webber, the allottee's mother; the deceased was therefore a half cousin once removed, to the children of Jack Smith. These children were not parties to the suit, but the defendant in error has deeds from some of them, and suggests that, as under Mansfield's Digest, relatives of the half blood inherit equally with those of the whole blood, the children of Jack Smith, bearing in the ascending scale the same relation to the deceased allottee that is borne by the Ross claimants in the descending scale, would have equal or better right to inherit. It is clear from the language of section 2522, supra, that, in the absence of issue of the decedent, inheritance is cast upon the nearest lineal ancestors, if any are living, otherwise upon the nearest living lineal descendants, if any, of the nearest common lineal ancestor. In the event of failure of blood kinsmen, the surviving spouse takes, and if there be no surviving spouse, the property escheats. Construed in connection with section 6, ...