White v. Hanson

• Decision Date: 14 April 1942
• Docket Number: No. 2392.,2392.
• Citation: 126 F.2d 559
• Parties: WHITE et al. v. HANSON et al.
• Court: U.S. Court of Appeals — Tenth Circuit

126 F.2d 559 (1942)

WHITE et al. v. HANSON et al.

No. 2392.

Circuit Court of Appeals, Tenth Circuit.

February 24, 1942.

Rehearing Denied April 14, 1942.

Chas. E. McPherren, of Oklahoma City, Okl. (Neal E. Maurer, of Oklahoma City, Okl., on the brief), for appellants.

Vern E. Thompson, of Joplin, Mo. (Loyd E. Roberts and Thompson & Roberts, all of Joplin, Mo., and Byron B. Hoffman, of Miami, Okl., on the brief), for appellees.

Before PHILLIPS, BRATTON, and MURRAH, Circuit Judges.

BRATTON, Circuit Judge.

This appeal presents the question whether the court improvidently denied an application to intervene. Lilia Quapaw Hanson instituted the suit against Agnes Quapaw Hoffman, Jean Ann Quapaw Hoffman, an infant, Henry E. Hoffman, as guardian of Jean Ann Quapaw Hoffman, and Henry E. Hoffman. Stella White, Ada Farley, Ida Gwin, Ella Cooper, Lola Arnold, Fred Baker, George Baker and Eddie Bair sought to intervene. For convenience, plaintiff and defendants in the court below will be referred to in that manner, and reference will be made to appellants — the unsuccessful applicants to intervene — as petitioners.

It was alleged in the complaint that Benjamin Quapaw, a full-blood Quapaw Indian, and Lizzie Perryman, a Creek Indian, were married in the late 1860's or early 1870's in the Creek Nation; that plaintiff was born about 1874 as the issue of such marriage; that when plaintiff was four or five years of age, her father took an Indian divorce from her mother according to the Creek Indian custom and returned to his people in the Osage Nation; that plaintiff remained in the custody of her mother and that she and her father became lost to each other; that in the early 1880's Benjamin married See-sah or Blackfeet; that See-sah died in 1920; that Benjamin and defendant Agnes were pretendedly married in 1921 by a civil ceremony but that such ceremony was ineffective to vest in Agnes any right in the property and estate of Benjamin for the reasons that it was not entered into in good faith and that Benjamin lacked mental capacity to enter into a valid marriage contract; that the defendant Jean was the child of Benjamin and Agnes; that Benjamin executed a pretended will in which he devised his estate to Agnes and Jean but that it was ineffective; that Benjamin died seized of a large estate consisting of real and personal property; and that plaintiff and defendant Jean were the sole surviving heirs of their deceased father and were entitled to share alike in his estate. By answer, the defendants denied that plaintiff was the daughter of Benjamin, denied the allegations in respect to the invalidity of the marriage of Benjamin and Agnes, denied the invalidity of the will, and interposed other defenses. On appeal from an order dismissing the cause, this court divided the property constituting the estate into these five classes: (1) Lands which Benjamin purchased with funds received from royalties reserved under mining leases on restricted allotments, (2) personal property over which the Secretary of the Interior had never exercised administrative control, (3) funds which the Secretary paid to defendants, freed from restrictions, (4) lands which were acquired by Benjamin and See-sah with funds received from royalties reserved under mining leases on their restricted allotments, title to which was conveyed to the Secretary, in trust, and (5) restricted allotments, and restricted funds therefrom then in the hands of the Secretary. The judgment was reversed, and the cause was remanded with directions to dismiss the complaint as to the property in classes four and five, and to permit plaintiff to file an amended complaint in respect to the property in classes one, two and three. Hanson v. Hoffman, 10 Cir., 113 F.2d 780.

Following the remand, an amended complaint and an amended answer were filed, and the cause was set for trial. Thereafter, petitioners filed their joint application for leave to intervene, to which a copy of their proposed complaint in intervention was attached. It was alleged in such complaint that Maloche, a Creek woman, was the first wife of Benjamin Quapaw; that they lived together as husband and wife and had two children, a daughter and a son; that the daughter died when a child; that Maloche subsequently died; that the son became known as George Baker; that petitioners were the children and grandchildren of George Baker and therefore the grandchildren and great grandchildren of Benjamin; that See-sah was the second wife of Benjamin; that she died in 1920; that Benjamin and Agnes were pretendedly united in a civil marriage ceremony but that it was ineffective to vest in Agnes any interest in the estate for the reasons that it was not entered into in good faith and that Benjamin was not mentally capable of entering into a valid...