In re Delks Estate , 2 Indian Terr. 572 ( 1899 )

Townsend, J.

The appellant files five specifications of error, which are as follows, to wit: “(1) The court erred in law in taking the administration of the said estate of David M. Delk, deceased, out of the Cherokee court, and placing said administration in the United States court, when the proof showed the deceased to be a Cherokee citizen and that said estate had been administered on by this defendant, now the appellant, in the Cherokee court, prior to the granting of the letters of administration to the said appellee in the United States court. (2) The court erred in law in holding that the United States court had jurisdiction to administer on the estate of Cherokee citizens when it was shown that any United States citizen was remotely interested. (8) The court erred in confirming the appointment of the administrator in the United States court when there was a Cherokee forum in which the said estate had been administered in. (4) The court erred in law in holding that the act of congress of May 2, 1890, provided for the administration of Cherokee decedents in the United States court, when a United States Citizen was a creditor of the deceased. 26 Stat. 81. (5) The court erred in denying the defendant an appeal to the United States court at Vihita, exercising like jurisdiction as the circuit court of the state of Arkansas, under Mansfield’s Digest, after the defendant had filed her motion for appeal as provided by law. ”

The record brought here by the bill of exceptions is imperfect. In the protest filed by appellant she says ‘ ‘that she denies each and every material allegation set up in the petition for the appointment of Leander A. Keys, ” but the petition of Keys is not brought here by the bill of exceptions; neither is there any evidence brought here that may have been submitted; and no statement is made that evidence was submitted; no findings of fact or conclusions of law are brought here, except the order of the court confirming the appointment of Keys. In the absence of a complete record, the presumption is that the action of the court was correct. Under the act of congress approved May 2, 1890 (26 Stat. 81), it is provided; “Nothing in this act shall be so construed as to deprive any of the courts of the civilized nations of exclusive jurisdiction over all cases arising wherein members of said nations, whether by treaty, blood or adoption, are the sole parties.” Appellant, in argument, seems to think that this statute in prohibitory of jurisdiction to the United States court, but does this statute exclude jurisdiction in matters of probate where United States citizens are creditors or dis-tributees, as shown by the petition for appointment of administrator? We think not. It is insisted by appellee that if a complete record had been brought up it would show exactly this state of facts. The court may have been satisfied that the appelle was not qualified to act as administrator under the laws in force, but by reason of the incomplete record this court cannot say how that is.

So far as the error alleged in the fifth specification is concerned, it is sufficient to say that chapter 42, under which such appeals are allowed, has never been put in force in the Indian Territory. It is therefore ordered that the appeal be dismissed and the judgment of the court below be confirmed.

Thomas, J., concurs.