Walker v. Tyner (In re Estate of Mcdade)

• Citation: 218 P. 532,95 Okla. 120,1923 OK 476
• Decision Date: 10 July 1923
• Docket Number: Case Number: 10747
• Parties: In re ESTATE OF McDADE. WALKER v. TYNER et al.
• Court: Supreme Court of Oklahoma

1923 OK 476

218 P. 532

95 Okla. 120

In re ESTATE OF McDADE.

WALKER v. TYNER et al.

Case Number: 10747

Supreme Court of Oklahoma

Decided: July 10, 1923

Syllabus

¶0 1. Marriage--Validity--Indian Custom.

A marriage of Cherokee freedmen in 1876, according to the custom of the Cherokee Nation at that time, and a living together as husband and wife, according to such custom, was a lawful marriage, and rendered the issue of such marriage legitimate.

2. Evidence -- Pedigree -- Hearsay--Declarations of Members of Family Since Deceased.

Pedigree may be proved by hearsay testimony, and evidence of declarations of particular facts, such as births, marriages, and deaths made ante litem motam, by a person since deceased, who was related by blood or affinity with some branch of the family the pedigree respecting which is in question, is admissible in evidence.

3. Same--Testimony Before Commission to Five Civilized Tribes.

It is not error to admit in evidence a certified copy of the testimony of a member of a family taken before the Commission to the Five Civilized Tribes, on the application of such member for enrollment of herself and family, to prove pedigree, if such person is dead at the time of the trial, and such testimony was given before there was anything to throw doubt upon it.

4. Same--Certified Government Records.

The declarations of a person since deceased, made under oath, upon her application for enrollment as a member of the Five Civilized Tribes, which have been reduced to writing and filed with the Commission to the Five Civilized Tribes, become a part of the records of a department of the government of the United States, and copies thereof, duly certified by the proper officer, are admissible in evidence under the provisions of section 5112, Rev. Laws 1910, and section 651, Comp. Stat. 1921.

5. Appeal and Error--Review of Equity Case.

In an equity proceeding, the findings and judgment of the trial court will not be disturbed, unless clearly against the weight of the evidence.

6. Same--Findings as to Pedigree.

Record examined, and held, that the findings of fact and judgment of the trial court that Thomas H. Walker was not the grandfather of Frank McDade, Jr., are not clearly against the weight of the evidence.

7. Courts--Determination of Heirship.--Appeal to District Court--Necessity for Motion for New Trial.

In a proceeding to determine heirship instituted and prosecuted under section 6488, Rev. Laws 1910, it is not necessary to file a motion for new trial in the county court in order to appeal to the district court. Appeals in such matters may be taken in the manner provided by law in cases of appeal in probate matters generally.

8. Trial--Order of Proof-- Parties -- Proceeding to Determine Heirship.

By the provisions of section 6488, Rev. Laws 1910, the party filing the petition, if he files a complaint, and if not, the party first filing a complaint, shall be treated as the plaintiff, and all other parties appearing therein shall be treated as defendants. Held, that B., having filed a petition which contained the necessary allegations of a complaint, should have been treated as the plaintiff in the case.

9. Appeal and Error--Discretionary Rulings--Order of Proof.

The matter of the mere order in which proof is introduced at a trial rests very much within the sound discretion of the trial court, and unless it clearly appears that this discretion has been abused to the injury of the complaining party, a judgment will not be reversed on this ground.

10. Witnesses--Examination of Witnesses --Prevention of Repetitions--Discretion of Court.

It is within the discretion of the trial court to prevent frequent and apparent useless repetitions of the same questions by different parties, and it is not error to refuse to permit cross-examination calling for a repetition of testimony given on former cross-examination.

11. Appeal and Error--Harmless Error -- Procedure.

A judgment will not be set aside or new trial granted on account of error in the matter of procedure, unless after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right.

12. Witnesses--Impeachment--Evidence at Former Trial.

Only such part of the testimony of a witness given at a former trial as is inconsistent with his present testimony is necessary or proper to be shown by the impeaching party.

13. Marriage -- Incapacity of Slaves -- Status of Offspring.

Persons in slavery were incapable of contracting marriage, and the offspring of such persons have no inheritable blood, in the absence of a legitimating statute passed subsequent to emancipation, or unless the parties to such marriage lived and cohabited as man and wife at the time of or after emancipation.

14. Marriage--Proof--Presumption of Validity.

When a marriage in fact has been shown, the law raises a presumption that it is valid, casting the burden on him who questions it to establish its invalidity.

15. Same -- Rebuttal of Presumption--Offspring of Slaves.

Where T. claimed to inherit through his father by right of representation, and proved that his father and mother were slaves, that he was born in slavery, and that his parents separated during slavery, and never lived and cohabited as man and wife after emancipation, this was sufficient to rebut the presumption of his legitimacy, as his parents were incapable of contracting marriage.

16. Same -- Validation of Slave Marriage After Emancipation.

In order for marriage between slaves to have an effect after emancipation they must have lived and cohabited as man and wife thereafter.

17. Slaves -- Legitimation of Offspring -- Statutes.

Neither article 9 of the Cherokee Treaty of July 19, l866, nor section 38 of the act of Congress of May 2, 1890, had the effect of legitimatizing the offspring of slave marriages.

18. Same--Marriage -- Validation Acts of Arkansas--Scope.

Section 4609, Mansfield's Digest of the Statutes of Arkansas, rendered valid only those marriages of persons of color who were living together at the time of its enactment, viz., December 20, 1866.

19. Same--Act Not Extended Over Indian Territory.

The act of the Legislature of the state of Arkansas of February 6, 1867, legitimatizing the offspring of negroes, theretofore cohabiting as husband and wife, was not incorporated in Mansfield's Digest of the States of Arkansas, and was never in force in the Indian Territory.

20. Same--Effect of Abolition of Slavery.

The Thirteenth amendment of the federal Constitution, abolishing slavery, did not have the effect of legitimatizing the issue of slave marriages.

21. Marriage -- Descent and Distribution--State Laws Exclusive.

The power to control and regulate marriages is retained by the state, and the right of inheritance is governed solely by state laws.

22. Slaves--Legitimation of Offspring--Acknowledgment by Parent After Emancipation.

Where a child born in slavery of slave parents was, after emancipation of the parents, acknowledged by the father as his own, such acknowledgment did not have the effect of legitimatizing such child under the provisions of section 4399, Rev. Laws 1910.

23. Bastards -- Legitimation -- Requisites.

By the provisions of section 8420, Rev. Laws 1910, in order for an illegitimate child to represent his father or mother by inheriting any part of the estate of his or her kindred, either lineal or collateral, his father and mother must before his death have intermarried, and his father, after such marriage, must have acknowledged him as his child, or have adopted him into his family.

24. Slaves -- Legitimation of Offspring -- State Statute.

That part of section 8420, Rev. Laws 1910, which provides: "The issue of all marriages null in law or dissolved by divorce are legitimate," has no application to slave marriages.

25. Same -- Presumption of Legitimacy -- Applicability of Statute.

Section 4366, Rev. Laws 1910, has no application to the issue of slave marriages, as such section presupposes a marriage between the parties, and slaves were incapable of entering into the marriage contract.

26. Indians--Descent of Estate of Cherokee Freedman.

Record examined, and held, that it shows the Buffington claimants to be the nearest of kin of the deceased capable of inheriting.

Error from District Court, Muskogee County; Benjamin B. Wheeler, Judge.

Proceedings instituted by Henry Buffington and others to determine heirship, in which other claimants filed answers. Judgment in favor of the claimant Prince Tyner, from which the claimants Henry Buffington and others, Thomas H. Walker, and T. E. Elliott, administrator, appeal. Reversed and remanded, with directions.

Stone, Moon & Stewart and Broaddus & Ambrister, for Thomas H. Walker.

Geo. S. Ramsey and Carter Smith, for the Buffington, heirs.

Thomas E. Elliott and Gibson & Hull, for T. E. Elliott, administrator of the estate of William Tyner, deceased.

William Neff, L. E. Neff, W. A. Chase, and A. B Campbell, for defendant in error Prince Tyner.

NICHOLSON, J.

¶1 This was a proceeding for the determination of heirship in the matter of the estate of Frank McDade, Jr., deceased, and originated in the county court of Muskogee county.

¶2 Frank McDade, Jr., a minor Cherokee freedman, died intestate on the 26th day of June, 1915, leaving an estate consisting of approximately $ 7,500 in personal property; his own allotment; an allotment inherited by him from his deceased brother; an allotment inherited from his deceased mother; and a tract of land purchased for him by his guardian; and this case involves the question as to who inherits this property.

¶3 There are five sets of claimants to the estate, viz.:

¶4 Thomas H. Walker, who claims to be the maternal grandfather, and who bases his claim upon the alleged fact that in the Cherokee Nation from 1866 to 1898, custom marriages were recognized between freedmen in said nation, and according...