Taylor v. Hilton

• Decision Date: 09 March 1909
• Docket Number: Case Number: 921 Ind Ter T
• Citation: 100 P. 537,23 Okla. 354,1909 OK 67
• Parties: TAYLOR v. HILTON.
• Court: Oklahoma Supreme Court

1909 OK 67

100 P. 537

23 Okla. 354

TAYLOR v. HILTON.

Case Number: 921 Ind Ter T

Supreme Court of Oklahoma

Decided: March 9, 1909

On May 5, 1905, Rual F. Taylor, plaintiff in error, filed in the office of the clerk of the United States Court for the Indian Territory, Southern District, at Tishomingo, his application to be appointed executor of the last will and testament of Maggie Taylor, deceased, and caused said will to be then and there probated before said clerk in common form. Said will is as follows:

"Last Will and Testament of Maggie Taylor.

"I, Maggie Taylor, residing near Bee, in the Indian Territory, being of sound mind and disposing memory, and knowing the uncertainty of death, hereby make and publish this my last will and testament to take effect upon my death; hereby revoking all wills previously made.

"I hereby direct that at my death the following disposition shall be made of all my property both real and personal:

"(1) I direct that at my death, that all my just debts shall be paid out of my estate.

"(2) Being now possessed and seised of the following described lands situate in the Chickasaw Nation, Indian Territory, being specifically as follows: (Describing it). Now, therefore, I hereby will, bequeath, and demise, the same together with all other real estate of which I may be the owner at my demise, unto my said husband, Rual F. Taylor, at my death in fee simple forever, at his death to go to his heirs, and to his assigns, if sold by him before his death.

"(3) I direct that at my death, that all moneys, credits, and all other personal property of which I am the owner, including all trust funds held by the United States government for Choctaws and Chickasaws shall go to, and become the absolute property of my husband, Rual F. Taylor.

"(4) I direct that at my death my husband, Rual F. Taylor, shall be appointed executor over my estate, and that he shall be appointed and qualify without giving bond required by law.

"Having made provision for the disposal of all my property, I now declare and publish this as my last will and testament, at Durant, I. T.

"This the 22d day of March, 1905.

"[Signed] MAGGIE TAYLOR."

(Certificate of subscribing witnesses omitted.)

On October 25, 1905, W. L. O. Hilton, as guardian for Allie Collins, John Collins, Berry E. Collins, and Virgil Collins, and John D. McCoy for himself, defendants in error, sole heirs of said Maggie Taylor, deceased, filed in said court sitting in probate their objection to the probating of said will on the ground that said will was procured by said Rual F. Taylor, the husband of said Maggie Taylor, deceased, by undue influence, and that at the time the same was made she was mentally incompetent to make the same, and that the same is void.

"They allege further that said will is an attempt to alienate real estate and lands situated in the Chickasaw Nation, which the said Maggie Taylor had received as her proportionate part of the lands of the Chickasaw and Choctaw Nations in allotment by reason of her being by blood of the Chickasaw Tribe of Indians, and said attempted alienation is contrary to the law and statutes in such cases made and provided and is absolutely null and void."

And they pray that said pretended will be not probated but rejected by proper order of said court.

On July 31, 1907, the cause coming on to be heard before the United States Court for the Indian Territory, Southern District, at Ardmore, sitting in probate, where the same by proper order had been transferred, no jury being demanded, the court, after proper hearing, entered the following order:

"On this the 31st day of July, 1907, came on to be heard the application of Rual F. Taylor for the probating of the last will and testament of Maggie Taylor, deceased, and thereupon came on the protest of W. L. O. Hilton against the probating of that portion of said will of the said Maggie Taylor, deceased, wherein she sought to devise to the said Rual F. Taylor, the following described property, to wit: (Describing it.) And thereupon came both parties in open court and agreed that the said Maggie Taylor at the time of her death was a member of the Chickasaw Tribe of Indians of the mixed blood, and that said land constituted her allotment as a member of said tribe of Indians; said land having been selected by her and allotted to her on the day of , 1903. Whereupon, the court being fully advised in the premises, it is ordered and adjudged and decreed that said will and testament of the said Maggie Taylor be, and the same is hereby, probated in all other respects, except in so far as the same undertook to devise and bequeath unto the said Rual F. Taylor, the above-described land, but as to the said land the probate of said will is hereby denied and rejected, and that the action of the clerk of this court heretofore taken probating said will, in so far as the same affects said land, is hereby disapproved and held for naught, to which action of the court in rejecting and denying the probate of said will, in so far as the same bequeathed and devised the said land to the said Rual F. Taylor, the said Rual F. Taylor in open court duly excepted."

From which order Rual F. Taylor prosecuted an appeal to the United States Court of Appeals for the Indian Territory, and the same is now before us for review as successor to that court.

Syllabus

¶0 1. WILLS--Proceedings to Probate--Scope. In a proceeding to probate a will under Mansf. Dig. Ark 1884, sec. 6521 (Ind. T. Ann. St. 1899, sec. 3593), the only issue triable is the factum of the will or the question of devisavit vel non.

2. SAME. Where on a trial of such issue without a jury, the court finds the testamentary paper produced to be the last will of the testatrix, it is error to reject from probate any part thereof.

Error from the United States Court for the Southern District of the Indian Territory, at Ardmore; Hosea Townsend, Judge.

Application by Rual F. Taylor for the probate of the will of Maggie Taylor, deceased. From a decree in favor of contestants, W. L. O. Hilton and another, denying the probate of the will in part, the proponent brought error to the United States Court of Appeals for the Indian Territory, whence the cause was transferred to the Supreme Court of the state of Oklahoma. Reversed and remanded, with directions.

Claude Hatchett and W. A. Ledbetter, for plaintiff in error.

A. C. Cruce, W. I. Cruce, and W. R. Blakemore, for defendant in error.

TURNER, J.(after stating the facts as above).

¶1 It is contended that the court erred in entering that part of said order rejecting the probate of that part of the will of Maggie Taylor devising her allotment. In this we concur and are of the opinion that the court exceeded its jurisdiction in making that part of the order complained of. Under "Proving Wills and Contesting their probate," Mansf. Dig. Ark. 1884, § 6509 (Ind. T. Ann. St. 1899, § 3581), provides:

"An appeal shall lie from the court of probate to the circuit court, and thence to the Supreme Court, upon every order admitting a will to record or rejecting it."

¶2 At that time, and ever since its establishment, the United States Court in the Indian Territory had original probate jurisdiction. It is also therein provided: Section 6521 (Ind. T. Ann. St. 1899, § 3593):

"When the proceeding is taken to the circuit court, all necessary parties shall be brought before the court; and, upon the demand of any one of them, a jury shall be impaneled to try which or how much of any testamentary paper produced is or is not the last will of the testator. If no jury be demanded, the court shall determine that question, and the final decision given to call the probate or rejection of the will in question, subject, * * *" etc.

¶3 Thus it will be seen that the only issue the court had jurisdiction to try in this proceeding was the factum of the will or the question of devisavit vel non.

¶4 Under this issue the court had no jurisdiction to construe the will or try the validity of any devise therein. This was the effect of that part of the order complained of. 16 En. Pl. & Pr. 1048, says: "In the absence of authority conferred by statute, the court has no power to construe the will or adjudicate upon the rights of the parties or the...