Tiger v. Timmons , 147 Okla. 141 ( 1931 )

Section 11224, C. O. S. 1921, provides:

"Every estate and interest in real or personal property to which heirs, husband, widow, or next of kin might succeed, may be disposed of by will; Provided, that no marriage contract in writing has been entered into between the parties; no man while married shall bequeath more than two-thirds of his property away from his wife, nor shall any woman while married bequeath more than two-thirds of her property away from her husband; Provided, further, that no person who is prevented by law from alienating, conveying or encumbering real property while living shall be allowed to bequeath same by will."

This section of the statute was in force at the time the allottee of the land involved in this cause of action died. Jennie George, a member of the Creek Tribe of Indians, prior to her death bequeathed to her husband, Willie George, the sum of $5 by her last will and testament, which was not one-third of her estate. Under this section of the statute she could not devise more than two-thirds of her estate away from her husband. This section of the statute has been construed by this court, and it has been held in a number of cases that a husband cannot devise more than two-thirds of his property away from his wife, or a wife cannot devise more than two-thirds of her property away from her husband.

This being true, upon the death of Jennie George an undivided one-third interest of her estate vested in her husband, Willie George, and he became the owner thereof.

This court in Blundell v. Wallace, 96 Okla. 26, 220 P. 40, held this provision of the state is applicable to Indian citizens as well as other citizens of the state. The majority opinion in this cause holds that this section of the statute does not apply to a full-blood Indian citizen of this state. Blundell v. Wallace, supra, was appealed to the Supreme Court of the United States, and it was urged there that section 11224, supra, was in conflict with section 23 of the Act of Congress of April 26, 1906, as amended by the Act of May 27, 1908, sec. 8. Section 23. reads as follows:

"Every person of lawful age and sound mind may by last will and testament devise and bequeath all of his estate, real and personal, and all interest therein; Provided, that no will of a full-blood Indian devising real estate shall be valid, if such last will and testament disinherits the parent, wife, spouse, or children of such full-blood Indian, unless acknowledged before and approved by a judge of the United States court for the Indian Territory, or a United States commissioner."

The Supreme Court of United States, in an opinion by Mr. Justice Sutherland, reported in 69 L. Ed. 664, passed squarely on this Question, and held that section 23, supra, was not in conflict with the Oklahoma statute; that section 23, supra, merely removed existing restrictions and left Indian citizens subject to the provisions of the laws of the state where the Indian was situated, and, therefore, an Indian woman could not will more than two-thirds of her property away from her husband if the state law forbade it.

The opinion in the instant case is diametrically opposed to the holding in the Blundell v. Wallace Case, supra, by this court, which was affirmed by the Supreme Court of United States. The Supreme Court of United States said at page 376 of the opinion:

"A brief reference to the state of the law at the time of the passage of section 23 will help to clear the way for a correct determination of the question. By sections 12 and 16 of the Supplemental Agreement with the Choctaws and Chickasaws, ratified by the Act of July 1, 1902, supra, lands of the kind here involved were declared to be inalienable during specified periods of time. It is settled that this restriction against alienation extended to a disposition by will (Taylor v. Parker,235 U.S. 42, 59 L. Ed. 121, 35 Sup. Ct. Rep. 22); and, but for section 23, it is plain that the devise in question, at least as to the homestead, would have been without effect.

"But, it must be, borne in mind, the restriction was in respect of the specified lands, and did not affect the testamentary power of the Indians to dispose of their alienable property, which power, on the contrary, has been fully recognized, first, by an extension of the appropriate laws of Arkansas over the Indian Territory, and then, upon the admission of the state of Oklahoma, by the substitution therefor of Oklahoma law. Taylor v. Parker, supra; Jefferson v. Fink, 247 U.S. 288. 294. 62 L. Ed. 1117, 1123, 38 Sup. Ct. Rep. 516. The general policy of Congress prior to the adoption of section 23 plainly had been to consider the local law of descents and wills applicable to the persons and estates of Indians, except in so far as it was otherwise provided. Thus, by section 2 of the Act of April 28, 1904, chap. 1824, 33 Stat. at L. 573, the laws of Arkansas, theretofore put in force in the Indian Territory, were expressly continued and extended in their operations, so as to embrace all persons and estates in said territory, whether Indian, freedman, or otherwise, and jurisdiction was conferred upon the courts of the territory in the settlement of the estates of decedents, etc., whether Indian, freedmen, or otherwise.

"Section 23 must be read in the light of this policy; and so reading it, we agree with the ruling of the state Supreme Court that Congress intended thereby to enable the Indian to dispose of his estate on the same footing as any other citizen, with the limitation contained in the proviso thereto. The effect of section 23 was to remove a restriction theretofore existing upon the testamentary power of the Indians, leaving the regulatory local law free to operate in the case of other persons and property. There is nothing in Blanset v. Cardin,256 U.S. 319, 65 L. Ed. 950, 41 Sup. Ct. Rep. 519, cited to the contrary, which militates against this view. That case involved the will of a Quapaw woman, devising her restricted lands away from her husband. It was held that section 8341 (now sec. 11224) of the Oklahoma laws did not apply because it was in conflict with an act of Congress. But the act there considered was very different from the one now under review. There the authority to dispose of restricted property by will was limited by the provisions of the Act of February 14, 1913, chap. 55, 37 Stat. at L. 678, Comp. Stat. sec. 4228, 3 Fed. Stat. Anno. 2d Ed. p. 855, that the will must be 'in accordance with regulations to be prescribed by the Secretary of the Interior', and that no will 'shall be valid or have any force or effect unless and until it shall have been approved by that officer.' By this language the intent of the Congress to exclude the local law and to establish the regulations of the Secretary as alone controlling was made evident; and it was so held. But here the federal statute contains no provisions of like character; it is without qualification except in the single particular set forth in the proviso; and, clearly, it does not stand in the way of the operation of the local law."

The majority opinion cites as authority the case of Blanset v. Cardin, 256 U.S. 319, 65 L. Ed. 950. This case involved the will of a Quapaw Indian, who was not a member of the Five Civilized Tribes. The will in the case at bar involves the will of a Creek Indian, who was a member of the Five Civilized Tribes. The statute under which the Quapaw woman's will was made, 37 Stat. at L. 678, chap. 55, specifically provides that sections 1 and 2 of this act shall not apply to the Five Civilized Tribes of Indians or the Osage Indians. So the statute under which the Quapaw Indian's will was made specifically provided that it did not apply to the Five Civilized Tribes, and should not be made to apply to the Creek woman's will in the instant case.

The same contention was made before the Supreme Court of United States in Blundell v. Wallace, supra, and the Supreme Court of the United States specifically held that the case of Blanset v. Cardin, supra., did not apply, and was not an authority and did not apply to a member of the Five Civilized Tribes. The Supreme Court said that that case involved the will of the Quapaw woman devising her restricted lands away from her husband. It was held that section 8341, now 11224, of the Oklahoma laws did not apply because it was in conflict with the act of Congress. The act there considered was very different from section 23, supra.

I am of the opinion, under the authorities cited, that the Oklahoma law should be upheld and judgment of the trial court should be reversed, with directions to enter judgment for the plaintiffs in error.

SWINDALL, J., concurs in the dissent.

On Rehearing. Per Curiam: Rehearing denied.