Scott v. Wesley (In re Estate)

• Decision Date: 16 September 1924
• Docket Number: Case Number: 12268
• Citation: 229 P. 483,100 Okla. 283,1924 OK 720
• Parties: In re LEWIS' ESTATE. SCOTT et al. v. WESLEY.
• Court: Oklahoma Supreme Court

1924 OK 720

229 P. 483

100 Okla. 283

In re LEWIS' ESTATE.

Case Number: 12268

Supreme Court of Oklahoma

Decided: September 16, 1924

Error from District Court, Atoka County; J. H. Linebaugh, Judge.

In the matter of determination of heirs of William Lewis, deceased, on petition of Sealey Wesley, whose claim to heirship was contested by J. M. Scott and W. W. Corbin. Judgment for Lewis, and Scott and Corbin bring error. Affirmed.

Syllabus

¶0 1. Indians--Action to Determine Heirship-Effect of Prior Administration Proceedings.

The act of Congress of 1918, specifically authorizing the determination of heirship of deceased Indians and conferring jurisdiction upon the county courts to determine same, authorizes the filing of a petition for such purpose, and the adjudication of same in all cases where the question of heirship has not been formerly adjudicated by a court of competent jurisdiction, and the fact that the estate has been administered upon, or administration proceedings are then pending, does not deprive the court of jurisdiction to hear and determine the question, unless there has been a former adjudication thereof.

2. Descent and Distribution--Ancestral Estates--Law of Arkansas.

Under the law of descent and distribution, Mansfield's Digest of the Laws of Arkansas, if the inheritance was ancestral and came from the father's side, then it will go to the line on the part of the father from whence it came, not in postponement, but in exclusion of the mother's line, and so, on the other hand, if it comes from the mother's side, then to the line on the part of the mother from whence it came, to the exclusion of the father's line. ( Kelly v. McGuire, 15 Ark. 555.)

3. Indians--Devolution of Allotments.

William Lewis, full-blood Choctaw Indian, died intestate in 1903, leaving him surviving his wife, Phoebe Lewis, and one child, Sarlin Lewis; held, that the allotment of William Lewis descended to his son, Sarlin Lewis, subject to the widow's dower, as provided in chapter 49, Mansf. Dig. of the Stats. of Ark. Sarlin Lewis died in 1904, and the mother, Phoebe Lewis, died in 1914, and under the same law the allotment in the hands of Sarlin Lewis was an ancestral inheritance and ascended to his father's side, the line from which it came, and the father being dead, and having acquired the original allotment by reason of his membership in the Choctaw Tribe of Indians, and his parents both being members of the tribe by blood, he acquired his right to an allotment as much through the blood of one parent as the other and such allotment descended equally to the paternal and maternal heirs of the father, William Lewis, deceased.

Commissioners' Opinion, Division No. 3.

Walter & Hilprit and Gordon Freyer, for plaintiffs in erorr.

Hatchett & Scruple and J. H. Gernert, for defendant in error.

Opinion by JONES, C.

¶1 This suit was originally instituted in the county court of Atoka county, Okla., by Sealey Wesley, a member of the Choctaw Tribe of Indians by blood, on the 1st day of March, 1919, on application therein to determine the heirs of one William Lewis, deceased, a full-blood Choctaw Indian.

¶2 The said Sealey claimed to be an heir of William Lewis, deceased, and entitled to an undivided one-half interest in his allotment.

¶3 J. M. Scott and W. W. Corbin, the holders of the record title to said lands and who secured their title through deeds from the half-brothers and sister of William Lewis, deceased, appeared in the action and contested the claim of heirship of said Sealey Wesley to any interest in said estate or lands. On December 31, 1919, the matter was tried and a decree rendered determining the heirs of the said William Lewis, deceased, in which it was held that the petitioner, Sealey Wesley, was entitled to a one-half interest therein by inheritance, from which order and judgment of the court the plaintiff in error appealed to the district court of Atoka county Okla., and there submitted the case on an agreed statement of facts, which is as follows:

"In the district court, state of Oklahoma, Atoka county. In the matter of the determination of the heirs of William Lewis, deceased, Choctaw by blood, Roll No. 11, 839, No. 1439.

"Stipulation.

"It is hereby stipulated and agreed, by and between Hatchett and Scruple and J. H. Gernert, representing Sealey Wesley, and Gordon Freyer, representing James Scott and W. W. Corbin, that this cause may be submitted on the following statement of facts:

"That William Lewis was a duly enrolled member of the Choctaw Tribe of Indians, whose roll number is 11,839, and there was allotted to him the following described land, to wit: the S.E. 1/4, the N.E. 1/4 of the S.E. 1/4 of S.W. 1/4 of sec. 13, township 1 south, range 5 east, 170 a.; the N.E. 1/4 of section 24; the S.E. 1/4 of the S.E. 1/4 of S.W. 1/4 of section 13, township 1 south, range 5 east, 170 a.

"That said William Lewis died intestate on or about the 15th day of April, 1903, in which is now Atoka county, Okla., leaving surviving one child, to wit: Sarlin Lewis, and his wife, Phoebe Lewis, and leaving no other child or issue of deceased children; that said Sarlin Lewis died in infancy in the year 1904, being about three years of age; that Phoebe Lewis died on or about the 26th day of May, 1914; that said William Lewis was a full-blood Choctaw Indian, whose parents were each Choctaw Indians, the father of William Lewis, being Joslin Lewis, and the mother, Rhoda Lewis, and that both of said persons died prior to the date of the death of William Lewis, that said William Lewis had paternal relatives living at his death, as follows: Eliza Lewis, paternal half-sister; Sampson Lewis, paternal half-brother and John Lewis, paternal half-brother. That said William Lewis had as his nearest and only maternal relative, Sealey Wesley, who was the child of Joseph Wesley, the said Joseph Wesley having been the son of Edna Wesley, making a full sister of Rhoda Lewis, mother of William Lewis, making the said Sealey Wesley a maternal second cousin of the said William Lewis, deceased, and that all of said relatives were also living at the date of the death of the said Sarlin Lewis named herein.

"Witness our hands this 27th day of October, A. D. 1920.

"J. H. Gernert & Hatchett & Semple,

"Gordon Freyer for J. W. Scott."

¶4 And on this statement of facts the district court on the 12th day of November, 1920, rendered a final judgment affirming the judgment of the county court, finding the said Sealey Wesley to be an heir of William Lewis, deceased, and entitled to inherit an undivided one-half interest in the allotment of the said William Lewis, deceased. The facts as disclosed by the agreed statement of facts and the law as contended for and relied upon by both plaintiff in error and defendant in error resolve the principal question in controversy to that of whether or not Sealey Wesley, she being admitted to be a second cousin on the maternal side of the family of William Lewis, deceased, is entitled to participate in the estate as an heir of said deceased. It is agreed that William, Lewis died intestate on the 15th day of April, 1903, leaving surviving one child, Sarlin Lewis, and his wife, Phoebe Lewis and that the said Sarlin Lewis died in infancy in 1904 being about three years of age, and that Phoebe Lewis died about the 26th day of May, 1914, and that the parents of William Lewis, deceased, are full-blood Choctaw Indians, both of whom died prior to the death of William Lewis. That William Lewis had paternal relatives living at his death as follows: Eliza Lewis, paternal half-sister; and Sampson and John Lewis, paternal half-brothers, and that Sealey Wesley was a relative on the maternal side, being the second cousin of said William Lewis, deceased, and it is agreed by both plaintiff and defendant in error that the laws of Arkansas control, and that the lands or allotment of said William Lewis, deceased, descended in accordance therewith. Section 2531, ch. 49, Mansf. Digest of the Laws of Arkansas, which was in full force and effect at the time of the death of William Lewis and his child, Sarlin Lewis, is as follows:

"Section 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 by this act; and in default of a father, then to the mother, for her life time, then to descend to the collateral heirs as before provided."

¶5 Section 2532 reads as follows:

"The estate of an intestate, in default of 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."

¶6 Section 2433 provides:

"Relations of the half-blood

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