Scott v. Beams, 2174-2178.

Citation122 F.2d 777
Decision Date10 October 1941
Docket NumberNo. 2174-2178.,2174-2178.
PartiesSCOTT v. BEAMS et al., and four other cases.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

COPYRIGHT MATERIAL OMITTED

Frederick P. Cranston and Norman H. Smedegaard, both of Denver, Colo. (C. L. McGuire, of Oklahoma City, Okl., Guy D. Duncan, of Denver, Colo., and J. Q. A. Harrod, of Oklahoma City, Okl., on the brief), for appellant Bennie Barnett Scott.

J. W. Stone, of Harriman, Tenn. (D. S. Beeler, of Rutledge, Tenn., on the brief), for appellant Rosa Allen et al.

Charles E. McPherren, of Oklahoma City, Okl. (Grant Foreman, of Muskogee, Okl., L. J. Burt and E. C. McMichael, both of Sapulpa, Okl., and Neal E. Maurer, of Oklahoma City, Okl., on the brief), for appellant Dora Brady et al.

James D. Simms, of Tulsa, Okl. (James B. Simms, of Tulsa, Okl., on the brief), for appellant Joe E. Tiger and others.

Paul Pinson, of Tulsa, Okl. (I. J. Underwood, Sam S. Canterbury, and O. L. Lupardus, all of Tulsa, Okl., on the brief), for appellant Lucy Curns and another.

Kavanaugh Bush, of Tulsa, Okl. (Chas. L. Yancey and G. C. Spillers, both of Tulsa, Okl., on the brief), for appellant Louisa Murrell and others.

Eck E. Brook, of Muskogee, Okl. (Charles S. Carl, of Wewoka, Okl., and J. R. Huggins, of Ada, Okl., on the brief), for appellant Charles Barnett and others.

Elmer J. Lundy, of Tulsa, Okl. (John M. Goldesberry and Russell L. Nixon, both of Tulsa, Okl., on the brief), for appellant Martha Jane Walker.

A. E. Pearson of Oklahoma City, Okl. (L. A. Horton, of Oklahoma City, Okl., on the brief), for appellant Bertha Barnett and others.

Mae R. Stricklin, of Wartburg, Tenn. and Hughett & Hughett, of Louisville, Ky., for appellant George W. Barnett et al.

W. T. Anglin, of Holdenville, Okl., Joseph C. Stone, of Muskogee, Okl., D. A. Richardson, of Oklahoma City, Okl., and Howell Parks, of Muskogee, Okl. (Alfred Stevenson, of Holdenville, Okl., Dick Jones, of Oklahoma City, Okl., Leon C. Phillips, of Okemah, Okl., E. W. Smith, of Henryetta, Okl., Charles A. Moon, of Muskogee, Okl., Francis Stewart, of Oklahoma City, Okl., L. O. Lytle and George Jennings, both of Sapulpa, Okl., Herbert G. House and Roscoe S. Cate, both of Muskogee, Okl., Harry B. Parris, of Eufaula, Okl., and Wilbur J. Holleman and J. Garfield Buell, both of Tulsa, Okl., on the brief), for appellees.

Charles N. Champion, Asst, U. S. Atty., of Muskogee, Okl. (Norman M. Littell, Asst. Atty. Gen., and Cleon A. Summers, U. S. Atty., of Muskogee, Okl., on the brief), for the United States.

Before PHILLIPS, BRATTON and HUXMAN, Circuit Judges.

BRATTON, Circuit Judge.

Jackson Barnett, a Creek Indian, was allotted one hundred and sixty acres of Creek tribal lands in Oklahoma. Oil in large quantities was developed on the allotted land and the proceeds from the sale of royalty oil were delivered into the custody of the Secretary of the Interior for the benefit of Barnett, and more than a million dollars of the trust fund was invested in United States Liberty Bonds. Barnett and Anna Laura Lowe were pretendedly married by two conventional ceremonies in 1920, one performed in Kansas and the other in Missouri, and they lived together as husband and wife until his death. Barnett affixed his thumb mark to a written instrument which recited the gift of $550,000 of the bonds belonging to the trust estate to Anna Laura Lowe Barnett and the gift of a like amount to the American Baptist Home Mission Society on certain conditions; and the bonds were distributed as directed by the instrument. The retarded mental capacity of Barnett and some of the circumstances which came within the compass of his life were reviewed in subsequent litigation in which it was determined that the pretended gifts were invalid. Barnett v. Equitable Trust Co., D.C., 21 F.2d 325; American Baptist Home Mission Soc. v. Barnett 2 Cir., 26 F.2d 350, certiorari denied, 278 U. S. 626, 49 S.Ct. 28, 73 L.Ed. 546; Barnett v. Equitable Trust Co., 34 F.2d 916; United States v. Equitable Trust Co. of New York, 283 U.S. 738, 51 S.Ct. 639, 75 L.Ed. 1379; United States v. Mott, D.C., 37 F.2d 860; Mott v. United States, 283 U.S. 747, 51 S.Ct. 642, 75 L.Ed. 1385; McGugin v. United States, 10 Cir., 109 F.2d 94. It was also adjudicated that, due to mental incapacity of Barnett to enter into a valid contract of marriage, Anna Laura Lowe Barnett did not acquire any right, title or interest in his property as the result of their pretended marriage. Barnett v. United States, 9 Cir., 82 F.2d 765, certiorari denied 299 U.S. 546, 57 S.Ct. 9, 81 L.Ed. 402.

Barnett, hereinafter called the decedent, was born sometime in about the 1840's or 1850's, the exact date being unknown, and he died in 1934, seized of real and personal property in Oklahoma, real property in California, and funds and securities in the hands of the Secretary of the Interior, all being restricted property. A proceeding for the appointment of an administrator of his estate was filed in the County Court of Muskogee County, Oklahoma; and two separate suits were filed involving questions relating to heirship of the decedent and ownership of the estate, one in the District Court of Muskogee County and the other in the District Court of McIntosh County. The United States caused the three proceedings to be removed to the United States Court for Eastern Oklahoma under the provisions of section 3 of the Act of April 12, 1926, 44 Stat. 239; that part of the first which related to the appointment of an administrator was remanded to the state court but that part which concerned the determination of heirship was retained; and the three were then consolidated for hearing and final determination. The order of consolidation provided that all applications to intervene were granted; that all parties should have the right to recast and re-file their pleadings in the consolidated action; that the action should proceed against the unknown heirs, executors, administrators, devisees, trustees, or assigns, immediate and remote, of the decedent; and that appropriate process should issue and be served by publication. More than six hundred persons including Anna Laura Lowe Barnett became parties to the action and pleaded by intervention or otherwise, each asserting that he was an heir of the decedent and entitled to all or part of the estate. Intervenor Bennie Barnett Valenta, also known as Bennie Barnett Scott, contended that he was the only child of his deceased mother, Thesothle Barnett; that his mother was the sister of the decedent; and that he was therefore a nephew of the decedent. Intervenors Dora Brady and Lucinda Watashe pleaded that Albert Brady was the only child of the decedent and Cinda Colbert; that the intervenors were the daughters of Albert Brady; and that they were therefore granddaughters of the decedent. Intervenors Lucy Curns and James E. Gentry asserted that the decedent was the child of Andrew Sullivan and one Thesothle, and that the intervenors were grandchildren of Andrew Sullivan and were niece and nephew, respectively, of the decedent. Intervenors Joe H. Tiger, Annie Ponds and Peter Hamilton contended that one Petelle and one Sarfully, both deceased, were brothers of the decedent; that the intervenors Joe H. Tiger and Annie Ponds were descendants of Petelle; and that the intervenor Peter Hamilton was the son of Sarfully. Intervenors Louisa Murrell, Emmett Murrell, Flora Solomon and Cora Simms pleaded that one Dinah was a sister of the decedent; that Dinah married Wiley Sookey; that four daughters were born as the issue of such marriage; that two of such daughters died without husbands or issue; and that the intervenors were descendants of the other two. Intervenors Martha Jane Walker, Pauline Stanfield, Verna Marie Barnes, Russell Gibson, Ernest J. Gibson, Walter Fenton Gibson, and Charles J. Gibson asserted that Thesothle was the mother of the decedent; that Polly Gibson or Polly Leecher was a sister of Thesothle; and that the intervenors were descendants of Polly Gibson or Polly Leecher, deceased. Intervenors Charles Barnett, Pelo Deere, Annie Burgess, and others contended that the decedent was the son of Thesothle; that Charles Barnett, Thomas Barnett and James Barnett were half-brothers of the decedent; that Lawyer Deere was a brother of Thesothle; that intervenor Annie Burgess was a descendant of James Barnett, deceased; and that intervenor Pelo Deere and other intervenors were descendants of Lawyer Deere. Intervenors Seaborn Fisher and others, hereinafter referred to as Group I, contended that Siah Barnett was the father of the decedent; that Siah was also survived by a son, David Barnett, and three daughters, Eliza Barnett, Ellen Barnett, and Hannah Barnett, all deceased; and that the intervenors were descendants of such brother and sisters. Intervenors Willie Conner and others, hereinafter referred to as Group II, pleaded that Thesothle was the mother of the decedent; that she was single and unmarried; that she died leaving two brothers, William Conner and Thomas Conner, and two sisters, Jennie and Hannah or Hannah Williams; and that the intervenors were descendants of such brothers and sisters, all deceased. Intervenors Chissie Stepney and Eneet Gouge and others, hereinafter referred to as Group III, asserted that the decedent had three brothers, Tecumseh, Haryaryechee, and Joe; that Tecumseh and Joe died without issue prior to the death of the decedent; and that the intervenors were descendants of Haryaryechee. Intervenors Rosa Allen, George Barnett and others pleaded that the father and mother of the decedent lived in Tennessee; that the decedent was born in that state; that he went from there to the Indian Territory; and that the intervenors were descendants from that source. Intervenors Bertha Barnett, a negress, Henry Barnett and Mayetta Kingston contended that Bertha and the decedent were married about the year 1878, and that Henry and Mayetta...

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