Tsoodle, Samuel, Estate of, 11 IBIA 163 (1983)

Appeal from an order denying rehearing issued by Administrative Law Judge Keith L.

Burrowes. IP BI 510 B-80.

Affirmed.

1. Indian Probate: Wills: Testamentary Capacity: Generally

   The burden of proof as to testamentary incapacity in Indian probate proceedings is on those contesting the will.

2. Indian Probate: Wills: Testamentary Capacity: Generally

   To invalidate an Indian will for lack of testamentary capacity, the evidence must show that the decedent did not know the natural objects of his bounty, the extent of his property, or the desired distribution of that property. Furthermore, the evidence must show that this condition existed at the time of the execution of the will.

3. Indian Probate: Wills: Undue Influence

   When the evidence does not show that influence was exerted on the testator at the time of the execution of the will or that the will was contrary to the testator's wishes, undue influence in the execution of the will cannot be found.

4. Indian Probate: Wills: Undue Influence

   Under the circumstances of this case, the written statement of the scrivener of an Indian will concerning whether the testator was acting under undue influence,

   IBIA 82-60

   made at the time of the execution of the will, shall be given great weight in determining the testator's state of mind.

   APPEARANCES: Oliver E. Davis, Esq., Anadarko, Oklahoma, for appellants. Counsel to the

   Board: Kathryn A. Lynn.

   OPINION BY ADMINISTRATIVE JUDGE MUSKRAT

   In a notice of appeal received by the Board of Indian Appeals on September 20, 1982, James O. Tsoodle, Vernon L. Dunlap, Sammy D. Dunlap, Danny J. Dunlap, Delores Davis, and Jeanice Sue (Davis) Lewis (appellants) sought review of a July 23, 1982, order denying petition for rehearing issued by Administrative Law Judge Keith L. Burrowes in the estate of Samuel Tsoodle, deceased Kiowa allottee 1249. The order denying rehearing let stand a March 17, 1982, order approving will and decree of distribution. For the reasons given below, the Board affirms this decision.

   Background

   Samuel Tsoodle (decedent) was born on April 8, 1898, and died on April 5, 1980. Decedent was married twice and had six children, three of whom died in infancy. Decedent's three remaining children survived him. They are James O. Tsoodle, born May 20, 1919, to decedent and his first wife; Mitchell Tsoodle, born December 20, 1939, and Ruth Ann Tsoodle Otis, born November 25, 1942, both of whom were the children of decedent and his second wife. Decedent was also survived by one stepdaughter, Delores (Tsoodle) Davis, her daughter, Jeanice (Davis) Lewis, and the three children of a deceased stepdaughter (Velma Tsoodle), Vernon L. Dunlap, Sammy D. Dunlap, and Danny J. Dunlap.

   In April of 1973, decedent suffered a stroke and was confined until July of 1973 in the hospital and a nursing home. This stroke apparently resulted in some mental and physical impairment. When he left the nursing home he stayed primarily with either his daughter or his son, Mitchell. Because of deterioration in decedent's medical condition, he was again confined to a nursing home in 1979 and was a resident of the nursing home at the time of his death.

   On June 5, 1974, decedent executed a will at the Office of the Field Solicitor, U.S. Department of the Interior, Anadarko, Oklahoma. The will was prepared by W. M. Haight, an attorney-advisor in the Office of the Field Solicitor. Haight, who also witnessed the will, predeceased decedent. The second witness to the will, another employee of the Office of the Field Solicitor, did not know decedent and had no specific recollection of this will.

   The dispositive provisions of the will left all of decedent's trust property to Ruth Ann Tsoodle Otis and Mitchell Tsoodle. In addition the will states:

   SIXTH - I give, devise and bequeath nothing to my son, James O. Tsoodle, for the reason that he has already been provided for.

   IBIA 82-60

   SEVENTH - I give, devise, and bequeath nothing to my granddaughter, Jeanice Davis; my stepdaughters, Velma Tsoodle and Delores Tsoodle, which are named in a previous will.

   An affidavit to accompany Indian will signed by the decedent, the two witnesses, and Haight as the scrivener of the will was also attached to the will.

   The will was transmitted to the Superintendent of the Anadarko Agency, Bureau of Indian Affairs, on June 5, 1974. A note written by Haight appears at the bottom of the transmittal memorandum:

   Mr. Tsoodle talked rather fast and I was satisfied his chief purpose in making the will was to take his granddaughter and his two stepdaughters from inheriting as he had done in his previous will. He said the granddaughter moved about considerable and was in Oregon at the present time and the two...