United States v. McCarty

• Decision Date: 31 July 1944
• Docket Number: No. 2890.,2890.
• Citation: 144 F.2d 341
• Parties: UNITED STATES v. McCARTY.
• Court: U.S. Court of Appeals — Tenth Circuit

144 F.2d 341 (1944)

UNITED STATES v. McCARTY.

No. 2890.

Circuit Court of Appeals, Tenth Circuit.

July 31, 1944.

Norman MacDonald, Atty. Dept. of Justice, of Washington, D. C. (Norman M. Littell, Asst. Atty. Gen., and John C. Harrington, Atty. Dept. of Justice, of Washington, D. C., on the brief), for appellant.

Z. I. J. Holt, of Tulsa, Okl., for appellee.

Before BRATTON, HUXMAN, and MURRAH, Circuit Judges.

MURRAH, Circuit Judge.

The sole question presented by this appeal is whether under the law of Oklahoma a husband who abandoned his lawful wife and contracted a bigamous marriage with another woman and thereafter lived and cohabited with her, may claim a share in the deceased wife's estate according to the law of descent and distribution. The facts are not in dispute.

Sallie Norton, a full-blood Cherokee Indian, was married to Fred Norton, a white man, on August 12, 1935, at which time she had a son, Oscar Chuwalooky, by a former marriage. Fred abandoned Sallie, and on January 10, 1937, without securing a divorce, entered into a marriage relationship by a statutory ceremony with another woman in the State of Arkansas, and never thereafter resumed his marriage relationship with Sallie. Sallie Norton died intestate on February 12, 1937, and included in her estate was a twenty-acre tract of restricted tax-exempt land located in Tulsa County, Oklahoma, and by reason of the restricted character of the land, no probate proceedings or judicial determination of heirship was had thereon. On November 6, 1937, the son, Oscar Chuwalooky, conveyed an undivided one-half interest in the land to William Swiggett, and the deed was duly approved by the proper court in Oklahoma. On December 7, 1937, the surviving husband likewise conveyed to Swiggett an undivided one-half interest in the land. Swiggett died on April 8, 1940, and the lands descended to Matilda McCarty, appellee here.

This suit was instituted in the District Court of Tulsa County by Matilda McCarty to quiet title to the lands and to judicially determine that the legal heirs of Sallie Norton were Fred Norton, surviving husband, and Oscar Chuwalooky, only child, and to adjudge that the deeds executed by these heirs transferred to Swiggett a good and legal title to the lands. The Superintendent of the Five Civilized Tribes was served with notice of the action in pursuance of Section 3 of the Act of April 12, 1926, 44 Stat. 239, 240, and the suit was thereafter duly removed to the United States District Court for the Northern District of Oklahoma.

The United States intervened in its own behalf and on behalf of its Indian ward, Oscar Chuwalooky, alleging in substance that since Fred Norton had abandoned Sallie and entered into a marriage relationship with another woman by a statutory ceremony, he thereby terminated his marriage relationship with Sallie, and is therefore not entitled to a distributive share as a surviving spouse under the succession laws of Oklahoma; that Oscar Chuwalooky as the only child of Sallie was the sole and only heir, and entitled to inherit the lands involved here to the exclusion of Fred Norton. The intervenor prayed that title to the one-half interest which Norton had heretofore conveyed to Swiggett, and which had descended to Matilda McCarty, be quieted in Oscar Chuwalooky.

The trial court held that although Fred Norton had abandoned his lawful wife and entered into a pretended marriage relationship with another woman, he nevertheless remained her lawful husband and was therefore entitled to participate in the distribution of her estate in accordance with the applicable laws of the state of Oklahoma. The court further found and concluded that Fred Norton and Oscar Chuwalooky, as surviving husband and child, were the sole and only heirs of Sallie Norton, and therefore entitled to participate in the estate equally; and by reason of their separate conveyances to Swiggett, the appellee is the owner of the full legal and equitable title to the lands.

On appeal, the United States contends in effect that by reason of the misconduct of Norton, he is estopped from participating in the estate of his wife, whom he had long since abandoned for another woman, and with whom he maintained a marriage relationship.

Under Oklahoma law of descent and distribution, if any person die seized of any estate which is not limited by marriage contract or testamentary disposition, leaving a surviving spouse and one child, the estate must descend to the surviving spouse and one child in equal shares. 84 O.S.A. § 213. Fred Norton, not having been legally divorced from Sallie Norton, was her lawful husband at the time of her decease, although he had long since abandoned her and entered into a pretended marriage with another woman. Copeland v. Copeland, 73 Okl. 252, 175 P. 764; Cox v. Cox, 95 Okl. 14, 217 P. 493, 495, 34 A.L. R. 432. It follows therefore that under the mandate of the statute, he is entitled to share equally with the son in the lands of Sallie Norton as a surviving husband, unless by his unfaithful and unworthy conduct he is estopped to assert his statutory right.

This identical question was squarely presented to the Oklahoma Supreme Court in Cox v. Cox, supra, and the majority held that unless forbidden by statute, one spouse did not forfeit his or her statutory right to inherit from the deceased spouse although he or she may have abandoned the deceased spouse long before and entered into a pretended marriage relationship with another. The court said it had "no alternative except to follow the rules of descent or succession as prescribed by the legislative branch of the government," citing with approval the case of Nolan v. Doss, 133 Ala. 259, 31 So. 969, 970, in which the Alabama court was likewise constrained to follow the mandate of a statute which provided that the personal estate of persons dying intestate without issue should descend to the widow. In holding that the bigamous misconduct of the wife was immaterial to the issue of inheritance under the statute, the Alabama court said that since the statute made no exceptions on account of the wife's conduct, even in cases of voluntary abandonment, "the law, as it is written, is plain, and it is not within the province of the courts to ingraft upon it any exceptions. As long as the marriage relation, in law, continues, just so long the rights of the wife under this statute exists. * * * The doctrine of estoppel insisted on by counsel has no application." This view is supported by respectable authority in the same and other jurisdictions. Coker v. Coker, 160 Ala. 269, 49 So. 684, 135 Am. St.Rep. 99; Johns v. Cannon, 199 Ala. 138, 74 So. 42; Curry v. Barnes, 200 Ala. 256, 76 So. 22; Meyers' Adm'r v. Meyers, 244 Ky. 248, 50 S.W.2d 81; Wooten v. Carmichael, Tex.Civ.App., 267 S.W. 344; ...