Werqueyah, Wahwersee R., Estate of, 3 IBIA 28 (1974)

• Court: Interior Board of Indian Appeals

Appeal from Judge's decision denying petition for rehearing.

Reversed in Part and Remanded.

Indian Probate: Rehearing: Generally

A rehearing will be granted where the original hearing did not conform with the standards of a full opportunity to be heard embodied in the Administrative Procedure Act. (5 U.S.C. §§ 554 and 556 (1970).

The probate of the Estate of Wahwersee R. Werqueyah, Comanche Allottee No. 1574, was the subject of a hearing on March 7, 1973. The Administrative Law Judge, Indian Affairs, issued an Order on April 10, 1973, approving last will and testament dated September 28, 1971, and decreeing distribution. Objection was made to certain general creditor claims that pertain to Comanche Allotments described as SE 1/4 of Section 35, Township 1 North, Range 14 West of the I.M., in Oklahoma, and SW 1/4 of Section 36, Township 1 North, Range 14 West of the I.M., in Oklahoma.

The decedent and his two brothers each owned an undivided 1/3 interest in the allotments in question. The brothers predeceased the decedent, Wahwersee, and their interests passed to their survivors. The decedent was survived by his spouse, Mattie Wahwerseer.

It appears that the decedent reserved the above-described allotments to his own use for several years prior to his demise because he was never able to induce his brothers to agree to a lease. Subsequent to Wahwersee's demise, claims were filed by the

IBIA 74-23

heirs of decedent's brothers for rental for the use of their respective interests in the properties referred to supra. The decedent's widow, Mattie Wahwerseer, testified that rent was paid to the brothers by the decedent through 1967, but that no further rent was paid because the brothers and their survivors refused to accept it.

The transcript shows that the Judge interrupted Mattie Wahwerseer while she was testifying with respect to the claims for rental, by saying, "Well, now I think that will be all just now." (Tr. 10). The Judge also interrupted Bert Werqueyah, Jr. stating, "this case will be continued at some future date and all the parties will be duly notified of the supplemental hearing. In the meantime, I want you to think about this a little bit and see if we can't work this out." (Tr. 16).

No supplemental hearing was ever held. But instead an Order approving Will and Decreeing Distribution was issued by the Judge on April 10, 1973.

Mattie Wahwerseer petitioned for rehearing on the following grounds:

1) That a continuance was granted to...