Oklahoma Land Co. v. Thomas , 72 Okla. 226 ( 1919 )

On the former appeal in this case, the judgment of the trial court was reversed because that court excluded evidence offered of an alleged custom among the Creeks which permitted plural marriages prior to October 22, 1881, being the date the Creek law regulating marriages was passed by the Creek Council, and because the trial court directed a verdict for defendants.34 Okla. 681, 127 P. 8. Upon a retrial, evidence tending to prove the existence of this custom was admitted, and the issue arising thereon was submitted to the jury, who returned a verdict for plaintiffs, and the defendants prosecute error.

It is assigned that the court erred in overruling defendants' demurrer to plaintiffs' evidence and in denying defendants' request for a peremptory instruction at the close of all the evidence. In support of this assignment, it is urged that the evidence offered by plaintiffs was insufficient to overcome the presumption in favor of the legitimacy of the persons under whom defendants claimed.

The land in controversy was the allotment of Lucretia Scott, who died in August, 1906, leaving surviving her neither father, mother, husband, or descendants, but leaving Ellen Johnson, a sister of the full-blood, and brothers and sisters of the half-blood. The plaintiffs claim through the half brothers and sisters. It was the contention of plaintiffs that Lucretia Scott and her sister Ellen Johnson were illegitimate children of one Dixon Scott and Melissa Gregory. Defendants contend that, although Dixon Scott was lawfully married to a freed woman named Nellie Smith by a minister of the gospel on December 24, 1877, the relations which existed between him and Melissa Gregory were permitted and recognized by the customs of the Creeks and constituted them husband and wife, and that the issue begotten of this relation was legitimate. The act of the Creek Council passed October 22, 1881, expressly prohibited plural marriages after that date, and in order for the contention of defendants to be sustained it must appear that such custom, if it existed, existed prior to the date of said act, and that the relations between Dixon Scott and Melissa Gregory commenced prior to that date. If there was any evidence which reasonably tended to show that the relations between Dixon Scott and Melissa were not commenced until after the passage of the act of the Creek Council prohibiting plural marriages, then the demurrer was properly overruled and the request for peremptory instruction properly denied.

There is evidence to show that, when Dixon Scott and Nellie Smith were married, Melissa Gregory was a little girl 7 or 8 years old, living with her father, Bob Bruner, in the vicinity in which Dixon and Nellie lived. Her father was killed in 1886, while Melissa was in the Choctaw Nation away from her home. After her father's death, she returned home and received her share of his estate and thereafter lived with her brother, Jack Bruner, and her grandmother, Granny Hanna. Some time after this, the relations between her and Dixon Scott were commenced, and a child was born to her January 10, 1888. She was then about 16 or 17 years of age. This child was named Ellen. Within about two years, when she was living at the home of her grandmother, another child was born who was named Lucretia, to whom was allotted the land in controversy. During all the time from their marriage in 1877, until his death in 1891, Dixon Scott and his wife Nellie maintained a home and reared a family of seven children, one of them, Letha, being born about February 24, 1888, 44 days after the birth of Ellen by Melissa. Dixon and Nellie belonged to the Blue Creek Baptist Church, and after the birth of Ellen a formal charge of adultery was made against Dixon Scott upon which he was tried and expelled from the church. In 1891, Dixon Scott was killed by Sunny Luckey, who had married Melissa and who resented the attentions which Dixon still sought to pay her. This evidence not only reasonably tends to prove plaintiffs' allegation that Ellen and Lucretia were the illegitimate children of Dixon Scott and Melissa Gregory, but we think that the great weight of the evidence establishes that fact.

Defendants offered to prove by certain witnesses the existence of a custom among the Creeks, which existed as late as 1892, whereby when a Creek citizen who had contracted a lawful marriage of which union certain children were born, and who was the father of children by a woman other than his lawful wife, recognized such children by the woman other than his wife as his own, such children would inherit with the lawful children the estate of the father; and also offered to prove that, when the father died and thereafter an illegitimate child died, the brothers and sisters of the lawful marriage would share in the distribution of the estate of the illegitimate child. This evidence was rejected, and error is urged upon this action of the court. Section 1, art. 2, of chapter 12 of the Laws of Muskogee (Creek) Nation, and section 258 of chapter 14 of the Laws of said nation as compiled and codified by A.K. McKellop under Act of October 15, 1892, were construed upon the former appeal in this case, and it was held that, when the father of an illegitimate child during his lifetime recognized such child as his own this recognition by the father conferred upon the illegitimate child the right to share in the estate of the putative father who had recognized such child as his own, but did not give to the brothers and sisters of the half-blood of such legitimated child the right to share in its estate with the sister of the whole blood when the father died prior to the death of such child. Upon the former trial, evidence was introduced tending to show that Dixon Scott in his lifetime had recognized Ellen and Lucretia as his daughters, but it was observed that the effect of this recognition did not appear to legitimatize such children generally or to confer upon them all the legal rights of legitimate children; that the obvious purpose of the statute was to enable illegitimate children who had been recognized by their father to share in his estate upon his demise; and that as to collateral kindred the taint of illegitimacy still adhered. 'This conclusion was arrived at after a consideration of the evidence of recognition and a construction of the act of the Creek Council last referred to, and such construction becomes the law of the case and will be followed and' applied in determining this appeal. Some of the later cases announcing this rule are: City of Ardmore v. Colbert, 52 Okla. 235, 152 P. 603; Courtney v. Gibson,52 Okla. 769, 153 P. 677; Bash v. Howard, 59 Okla. 116,157 P. 1154; Chickasha Cotton Oil Co. v. Lamb, 58 Okla. 22,158 P. 579.

It is urged, however, that on the former trial evidence was not offered tending to show that in the administration of the estates of deceased persons, in the Creek Nation under the circumstances here involved, the half brothers and sisters were permitted to share in the estate of an illegitimate child. Even if we assume that it was competent to offer this evidence to vary the construction placed upon the act of the Creek Council defining the rights of an illegitimate child who had been recognized by its father, still the exclusion of this evidence was not error. As has already been seen, the act of recognition did not have the general effect of rendering such offspring legitimate, but only had the effect of determining the line of descent which should prevail as to the property of such father or child at the time of their deaths, respectively. The act of recognition by the putative father had no effect upon the relation between the child and the mother. As to her the child was still illegitimate. Our attention has been called to no Creek statute of legitimation whereby the taint of illegitimacy might be removed generally and the status given such offspring as that possessed by a child born in lawful wedlock, nor does the evidence which was excluded tend to establish such a custom. It is true, some of the witnesses testified that there was no such thing as bastard children in the Creek Nation; but this testimony cannot be considered in the fact of the act of the Creek Council dated October 13, 1881, expressly prohibiting plural marriages. The argument of defendants is that the act of recognition conferred the status of legitimacy upon Ellen and Lucretia, and that this status, having been once acquired, continued and was not affected by the Act of Congress June 30, 1902, 32 Stat. L. 500, extending the Arkansas laws of descent and distribution as contained in chapter 49 of Mansfield's Digest over the Creek Nation, This is erroneous because it assumed a premise not proven. The only effect of the recognition by Dixon Scott of Ellen and Lucretia was to establish a right of inheritance in the property of their father; but if we go further, and say that such act of recognition conferred upon the half brothers and sisters the right to share in the estate of Lucretia, this was not a vested right, for no one has a vested right to inherit the property of a living person. Barnes v. Barnes, 47 Okla. 117, 147 P. 504.

The rules by which the descent of property is cast are subject to the will of the Legislature. Holloway v. McCormick et al., 41 Okla. 1, 136 P. 1111, 50 L. R. A. (N. S.) 536. And when chapter 49 of Mansfield's Digest was extended over the Creek Nation prior to the death of Lucretia, her allotment would descend as therein provided. Section 2524, Mansfield's Digest, is as follows:

"Illegitimate children shall be capable of inheriting and transmitting an inheritance, on the part of their mother, in like manner as if they had been legitimate of their mother."

Under this section of the statute, the sister Ellen would inherit the allotment of Lucretia to the exclusion of their half brothers and sisters. Gregley v. Jackson et al.,38 Ark. 487; Brann v. Bell (C. C.) 192 Fed. 427. This conclusion renders a consideration of the other errors assigned unnecessary.

The judgment is affirmed.