Soldierwolf, Mary, Estate of, 5 IBIA 146 (1976)

• Court: Interior Board of Indian Appeals

Petition to reopen estate.

Dismissed.

1. Indian Probate: Reopening: Standing to Petition for Reopening

   The petitioners, grandsons of the testatrix who are not heirs at law, cannot be considered to be persons with "an interest in the estate" which is the recognized standard governing who may seek reopening.

2. Indian Probate: Reopening: Generally

   Pursuant to 43 CFR 4.242(h), the Board is not required to reopen an estate closed for more than three years unless a probable manifest injustice can be shown.

3. Indian Probate: Wills: Generally

   It is not a valid basis for overturning an Indian's will that certain relatives were not included in a devise of property.

   Mary Killsnight Soldierwolf, deceased Northern Cheyenne Allottee No. 1048, died testate on January 25, 1966. Her final will, dated June 12, 1964, was approved by Hearing Examiner (now Administrative Law Judge) David J. McKee by order dated January 12, 1968, following

   IBIA 76-25

   a probate hearing held April 20, 1967, at Lame Deer, Montana. As no petition for rehearing was filed by any party within 60 days of the order approving will, the Hearing Examiner advised the Superintendent of the Northern Cheyenne Agency on March 14, 1968, to distribute the estate in accordance with the final order.

   On August 13, 1971, a petition for rehearing was filed with Hearing Examiner Daniel S. Boos, signed by Stella Soldierwolf Harris a/k/a Stella D. Harris, daughter of the testatrix. The petition for rehearing was treated as a petition for reopening and was denied as untimely by order dated October 18, 1971. Stella Harris filed an appeal from this order on December 16, 1971, which was dismissed by order of the Board dated March 31, 1972.

   The present petition for reopening is brought by two sons of Stella Soldierwolf Harris, grandsons of the testatrix, named William Marshall Harris (a/k/a William Matthew Harris) and Thomas Charles Harris, a minor. This petition was docketed by the Board on February 2, 1976.

   The Board has considered the arguments submitted in support of the above petition and we find that it must be denied for the reasons set forth below.

   [1] By memorandum dated January 28, 1976, Administrative Law Judge Boos recommended that the Board deny the petition for reopening on grounds that the petitioners lack necessary standing to petition. Judge Boos correctly points out that under the applicable state laws of intestate succession, the sons of Stella Soldierwolf cannot be considered heirs at law of...