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she had executed a will devising her said homestead and 10 acres of surplus to the defendants. That said will bequeathed to David H. Poff the sum of $5.00, which did not amount to one-third of the property of which the said Patsy Poff died seized, the said estate of the said Patsy Poff being worth Several thousand dollars.

Judgment for one-third of the land was entered in favor of plaintiffs, following the state statute. From the judgment of the district court the plaintiffs in error appeal, and make various assignments. The only assignments necessary to be discussed, however, as we view the case, are assignments 2, 3, and 4, Which are:

“(2) The said district court of Garvin county erred in holding as a matter of law that the right of the plaintiff in error's decedent, Patsy Poff, to make a will, was controlled by section 8341, R. L. 1910.

“(3) That said district court of Garvin county erred in holding that the will executed by the said Patsy Poff, deceased, was not sufficient to convey and vest the fee title in the lands therein described to the said beneficiaries under said will.

“(4) The said district court of Garvin county erred in holding that.the defendant in error's decedent, David H. Poff, husband of Patsy Poff, deceased, was entitled to recover any interest o land divested under the terms of said W1 .”

The question of law involved in this appeal is whether or not the limitations contained in section 8341, R. L. 1910, controlled. It must be borne in mind that the testator in this case was a half-blood citizen of the Choctaw Nation; that the lands sought to be devised consisted of her homestead and 10 acres of her surplus, allotted to her by reason of her citizenship in the Choctaw Nation; that this property was worth several thousand dollars; and that all of her property, except the sum of $5, was bequeathed to perSons other than her husband.

The plaintiff, W. R. Wallace, claimed a one-third interest in the lands so devised through mesne conveyances passing the interest of David H. Poff, husband of the said testatrix, Patsy Poff. The defendants contend that section 23 of the Act of Congress of April 26, 1906 (34 Stat. 145) gave the allottee power to dispose of her property by will free from any limitation imposed by the statutes of the state of Oklahoma. Said section 23 is:

“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 appproved by a judge of the United States Court for the Indian Territory, or a United States commissioner.”

Said section was modified by the Act of May 27, 1908 (35 Stat. 315, § 8), by adding at the conclusion thereof, “or a judge of a county court of the state of Oklahoma.” The said statute which the trial court held was controlling is section 11224, Compiled Statutes of Oklahoma of 1921 (section 8341, R. L. Okla. 1910), which section 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 incumbering real property while hiving shall be allowed to bequeath same by will.”

The defendants rely for reversal of this cause on their contention that the Said Sec. tion 23 of the act of Congress gives the allottee to whom said act referred the right and power to devise and bequeath all of his property, and that a limitation cannot be placed upon said right by the said section of the state statute; that said sections cannot be construed together; that they are in conflict, and that Congress had the power to regulate the disposition of allotments of citizens of the Five Civilized Tribes. If these statutes are in conflict, then of course the act of Congress must prevail, and the judgment of the trial court be reversed.

In determining whether or not they are in conflict, the question is: What was the intent and purpose of Congress in passing said section 23? Did it give a right to the Indian, or merely remove a restriction existing? To determine this intent, we must necessarily look to the conditions as to which Congress was legislating, and take into consideration its various acts in pari materia. In looking to the different acts of Congress, we do not feel that it is necessary to quote at length therefrom, or to refer in detail to the different provisions of the numerous acts from 1893 down to 1908, touching the allotments of the lands theretofore held in common by the citizenship of the several tribes known as the Five Civilized Tribes, and constituting the bulk of that part of Oklahoma which, prior to its admission as a state on November 16, 1907, was the Indian Territory. The various acts and treaties set forth in detail the purpose and object of Congress was to divest the tribes as such of their interest in the lands owned by them, and to vest the same in the citizens legally entitled to enrollment; each of the acts carrying with it an inhibition against alienation by the Indian citizens of the lands so received, in the exercise of the plenary power of the Congress of the United States, as guardian of the Indians, and the properties owned by them. The Act of Congress of July 1, 1902, known as the Supplemental Agreement with the Choctaws and the Chickasaws (32 Stat. 641), out of which the title to the land involved in this controversy arose, provided for the allotment to each citizen of the tribe a certain amount of land, the acreage thereof to be determined by the character of the land, as disclosed by an appraisement thereof long theretofore made under the supervision of the government of the United States. The said Allotment Act specifically provided that a certain portion of the lands to which each Citizen was entitled should be known as Surplus, and a certain portion homestead. These different designations were useful in the scheme of allotment only in so far as Congress put different restrictions and limitations upon the one to the other. Those lands allotted as surplus were made alienable within a certain period of time, while the lands allotted as homestead were not alienable, except under certain other conditions expressed in the acts. None of the lands could be disposed of by will until Congress authorized the same. This authority to dispose of land by will was in the nature of a removal of restrictions theretofore existing against alienation, and not in its nature conferring a right. The said section 23 was the first removal of Congress of the restriction theretofore existing against alienation by will in the Choctaw and Chickasaw Nations. The Act of Congress of May 2, 1890 (26 Stat. 81), extended in force in Indian Territory, of which the Choctaw Nation was a part, chapter 155 of Mansfield's Digest on “Wills and Testaments.” Section 2 of the Act of April 28, 1904 (33 Stat. 573), made all the laws of Arkansas theretofore put in force in the Indian Territory applicable to Indians and their property, where not inconsistent with the acts of Congress governing the same. One section of said chapter 155 of said Mansfield's Digest on Wills and Testaments, being section 6500, provided:

“When any person shall make his last will and testament, and omit to mention the name of a child, if living, or the legal representatives of such child born and living at the time of the execution of such will, every such person, so far as regards such child, shall be deemed to have died intestate, and such child shall be entitled to such proportion, share and dividend of the estate, real and personal, of the testator as if he had died intestate; and such child shall be entitled to recover from the devisees and legatees in proportion to the amount of their respective shares, and the court exercising probate jurisdiction shall have power to decree a distribution of such estate according to the provisions of this and the preceding sections.”

In the Creek Nation the Act of Congress of June 30, 1902 (32 Stat. 503), the same being a

part of the Supplemental Creek Agreement, provided:

“The homestead of each citizen shall remain, after the death of the allottee, for the use * * * of children born to him after May 25, 1901, but if he have no such issue then he may dispose of his homestead by will, free from the limitation herein imposed. * * *”

In the case of In re Brown's Estate, 22 Okl. 216, 97 Pac. 613, this court had under consideration the question as to whether the said limitation of the said chapter 155, Mansfield's Digest, on Wills and Testaments, hereinabove quoted, worked a limitation upon the right of a person who fell within the conditions of the said act of Congress giving the right to dispose of the homestead part of the allotment by will. After quoting said provision of Mansfield's Digest and the said provision of the Creek Treaty of 1902, this court said:

“If the laws of Arkansas governing “wills and testaments' " " " were not in force in the Creek Nation at the time of descent cast in this case, then there were no written laws governing these subjects, and the Act of Congress of May 2, 1890, supra, putting in force chapter 155, supra, * * * would be abortive. Such was not the intention of Congress, and the courts heretofore construing these laws have not so construed them. * * * As in this case there were no children born to the devisor after May 25, 1901, there was no reason why she should not dispose of the land embraced in her homestead by will; but, in doing so, it was incumbent upon her to make provision therein for any surviving children born prior to the 25th day of May, 1901. Failing to do this, she must be deemed to have died intestate, and such surviving child is entitled to such proportion, share, and dividend, real and personal, of the estate, as if no will had been made. To determine such share resort must again be had to the laws of Arkansas. * * * *

In the syllabus in said case the court said:

“There being no children born to a noncitizen Creek allottee after the 25th day of May, 1901, she was entitled to dispose of her homestead by will, and such devise was subject to the limitations contained in section 6500, Mansf. Dig., * * * which reads: “When any person shall make his last will and testament, and omit to mention the name of a child, if living, or the legal representatives of such child born and living at the time of the execution of such will, every such person so far as regards such child, shall be deemed to have died intestate, and such child shall be entitled to such proportion, share and dividend of the estate, real and personal, of the testator as if he had died intestate; and such child shall be entitled to recover from the devisees and legatees in proportion to the amount of their respective shares, and the court exercising probate jurisdiction shall have power to decree a distribution of such estate according to the provisions of this and the preceding sections.’”

Thus the court held that, although the act of Congress known as the Supplemental Creek Treaty expressly authorized citizens, under the conditions that no child was born after May 25, 1901, and living, to dispose of the homestead by will, the Arkansas statute placing a limitation thereon was applicable to the Indian citizen. See, also, “Taylor V. Parker, 33 Okl. 199, 126 Pac. 573; Id., 235 U. S. 42, 35 Sup. Ct. 22, 59 L. Ed. 121 The said authorities drive us to the conclusion that, as long as the statutes of Arkansas placed in force in the Indian Territory on wills and testaments remain the law of that jurisdiction, wherever property belonging to an Indian citizen by reason of his allotment was alienable by will, the disposition thereof by the Indian citizen by his last will and testament was in accordance with the provisions of Mansfield's Digest, and the limitations contained therein. In the case of Jefferson v. Fink, 247 U. S. 288, 38 Sup. Ct. 516, 62 L. Ed. 1117, in referring to the various acts of Congress touching the allotment of lands in the Five Civilized Tribes, the Supreme Court, among other things, said:

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“‘Congress was then contemplating the early inclusion of that territory in a new state, and the purpose of those acts was to provide, for the time being, a body of laws adapted to the needs of the locality and its people in respect of matters of local or domestic concern. There being no local Legislature, Congress alone could act. Plainly, its action was intended to be merely provisional.” By the Enabling Act of June 16, 1906, c. 3335 (34 Stat. 267), provision was made for admitting into the Union both the territory of Oklahoma and the Indian Territory as the state of Oklahoma. Each territory had a distinct body of local laws. Those in the Indian Territory, as we have seen, had been put in force there by Congress. Those in the territory of Oklahoma had been enacted by the territorial Legislature. Deeming it better that the new state should come into the Union with a body of laws applying with practical uniformity throughout the state, Congress provided in the Enabling Act (section 13) that “the laws in force in the territory of Oklahoma, as far as applicable, shall extend over and apply to said state until changed by the Legislature thereof,' and also (section 21) that 'all laws in force in the territory of Oklahoma at the time of the admission of said state into the Union shall be in force throughout said state, except as modified or changed by this act or by the Constitution of the state.” The people of the state, taking the same view, provided in their Constitution (article 25, § 2) that “all laws in force in the territory of Oklahoma at the time of the admission of the state into the Union, which are not repugnant to this Constitution, and which are not locally inapplicable, shall be extended to and remain in force in the state of Oklahoma until they expire by their own limitation or are altered or repealed by law.” The state was admitted into the Union November 16, 1907, and thereupon the laws of the territory of Oklahoma relating to descent and distribution (Rev. Stat. Okl. 1903, c. 86, art. 4) became laws of the state. Thereafter Congress, by the Act of May 27, 1908, c. 199, 35 Stat. 312, § 9, recog

nized and treated the laws of descent and dis

tribution of the state of Oklahoma' as applicable to the lands allotted to members of the Five Civilized Tribes.”

The effect of the Enabling Act and the schedule to the Oklahoma Constitution as touching wills and testaments was merely to substitute the Oklahoma Territorial statutes for the laws then in force in the Indian Territory. The policy of Congress at all times touching Indian affairs was to place thé Indian, as far as practicable and beneficial to the Indian, on the same footing as other citizens of the community or state in which the Indian resides, and this construction will be given to the acts of Congress, unless the contrary intention appears. In making the allotments to the citizens of the Five Civilized Tribes, different restrictions and provisions governed the surplus, homestead, and inherited lands. In enacting section 23, which had for its purpose a further removal of restrictions, Congress was not unmindful of the fact of those varying legal provisions as affecting the real estate held by the Indians, and by the use of the language of section 23 undertook to make it clear that the Indian citizens could dispose by will of all of his property, and not that arising from some particular source. In other words, Congress merely authorized the Indian to dispose of his estate on the same footing as any other citizen, with the limitation contained in the proviso thereto. There is nothing in the language of section 23 which, if the will had been made, and testator died after said act and before statehood, would not have made the same subject to the provision of the Arkansas statute in force in the Indian Territory, as held to be applicable in the cases above set out. The Oklahoma statute being merely a substitution for the Arkansas law, there is no potent reason advanced, and we think none exists, why the limitations imposed by the Oklahoma statute above quoted should not prevent an Indian from disposing of his property by will, to the exclusion of the husband or the wife.

The case cited by plaintiff in error, Blanset v. Cardin (C. C. A.) 261 Fed. 309, construed an act of Congress touching the alienation by will of allotments held under trust or patent, by the government for the benefit of certain Quapaw Indians, which act of Congress gave the Secretary of the Interior complete power to approve or disapprove such wills. We do not think that, under the facts recited in that case, the reasoning has any application to the question now before this court for determination.

For the reasons given, the judgment of the district court of Garvin county should be affirmed.

JOHNSON. C. J., and HARRISON, KANE, NICHOLSON, KENNAMER, and McNEILL, J.J., concur.

COCHRAN, J., dissents.

Rourke et al. v. CockRELL. (No. 12442.) (Supreme Court of Oklahoma. Nov. 6, 1923.)

(Syllabus by the Court.) Appeal and error 6-773(5)—Judgment reversed where appellant's brief plausible and no controverting brief. Where the plaintiffs in error have duly filed and served brief in compliance with the rule of the Supreme Court, and defendant has neither filed brief nor offered excuse for failure so to do, the Supreme Court will not search the record to find some theory upon which the judgment may be sustained; but, where the brief filed appears reasonably to sustain any assignment of prejudicial error, the judgment will be reversed.

Commissioners' Opinion, Division No. 2. Appeal from District Court, Oklahoma County.

Action by A. M. Cockrell against S. A. Rourke and another, Judgment for plaintiff, and defendants appeal. Reversed.

Gasper Edwards, of Oklahoma City, for plaintiffs in error.

L. D. Mitchell, of Oklahoma City, for defendant in error.

JARMAN, C. This is an appeal from the district court of Oklahoma county. The plaintiffs in error filed their brief August 13, 1923. No brief has been filed by the defendant in error, and no extension of time has been given to file same, and no reason has been assigned by the defendant in error as to why he has not filed brief. The brief of the plaintiffs in error appears to reasonably sustain the assignments of error, and under the rule of this court the record will not be searched to find some theory upon which the judgment of the lower court may be sustained.

The judgment of the lower court is reversed.

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party, to grant a new trial; but this duty of the court does not prevent the trial court from yielding his impression or opinion and adopting that of the jury, if, upon consideration of the evidence, the court is of the opinion that the verdict is right and by reason thereof yields his own opinion to that of the jury.

Appeal from District Court, Muskogee County; Enloe W. Vernor, Judge.

Action by Nancy Gott against Samuel Futterman and another. Verdict for plaintiff. A new trial was denied, and defendants appeal. Affirmed.

Ezra Brainerd, Jr., and C. P. Gotwals, both of Muskogee, for plaintiffs in error.

Archibald Bonds and Kelly Brown, both of Muskogee, for defendant in error.

COCHRAN, J. In the trial of this case in the district court of Muskogee county a verdict was returned by the jury in favor of the plaintiff, and the defendant filed a motion for a new trial, which was heard by the trial court, and, in overruling the motion for a new trial, the trial judge stated as follows:

“Maybe I would not agree with the verdict in this case. I hardly know what I would have done had I been on the jury. But where a jury has been fairly instructed and has passed squarely on the question of fact, I hate to impose my own views in the matter. And the court therefore finds that said motion for a new trial should be overruled.”

The defendant contends that the cause should be reversed because the above statement shows that the trial judge did not either approve or disapprove the verdict of the jury, and that his failure to do so was a failure to perform a duty imposed upon him by law. The defendant relies upon the cases of Hogan v. Bailey, 27 Okl. 15, 110 Pac. 890: White v. Dougal, 60 Okl. 200, 159 Pac. 907; Hennessey Oil & Gas Co. v. Neely, 62 Okl. 101, 162 Pac. 214; Chicago, R. I. & P. Ry. Co. v. Warren, 63 Okl. 190, 163 Pac. 705.

In Chicago, R. I. & P. Ry. Co. v. Warren, Supra, the court said:

“It is the duty of the trial court upon a motion for new trial which challenges the verdict upon the ground that it is contrary to the evidence to weigh the evidence and to approve or disapprove the verdict, and, if the verdict is such that in the opinion of the trial court it should not be permitted to stand and in his opinion should have been for the other party, to grant a new trial.”

In the body of the opinion, the court States:

“This duty of the court does not prevent his yielding his impression or opinion and adopting those of the jury, if upon consideration of the evidence the court is of the opinion that the verdict is right, and by reason thereof yields his own opinion to that of the jury, and, so yielding, approves the verdict.”

&=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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It is our opinion that the language used by the trial court does not show a failure of the court to approve or disapprove the verdict of the jury, but simply shows that after fully considering the verdict and fully realizing his right to grant a new trial in the face of a verdict by the jury, he yielded any impression or opinion which he might have had from the facts and adopted that of the jury, believing that, the jury having rendered a verdict after a full consideration of the facts and the evidence and after having been fairly instructed, he should yield his own opinion to that of the jury.

We are of the opinion that a fair interpretation of the language used shows an approval of the verdict of the jury by the trial court. The cases relied upon by the defendant are cases where the statements made by the trial court either showed that he disapproved the verdict of the jury or the language was such as to show that the trial judge did not approve or disapprove the verdict, and believed that it was not within his power to do so. The instant case is not to be confused with those cases, because, as we have stated, it is our opinion that the language used by the trial court shows an approval of the verdict by the trial court.

The judgment of the trial court is therefore affirmed.

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Appeal to the district court from an order of the probate court allowing in part and disallowing in part the account of an administrator. The district court affirmed the order of the probate court, except as to one item, which the district court allowed in the amount originally claimed. Appeal from that part of the judgment of the district court allowing the particular item in the full amount claimed.

John H. Padgham, of Salmon, and Richards & Haga, Chas. H. Darling, and J. L. Eberle, all of Boise, for appellants.

Burleigh & Glennon, of Salmon, and E. W. Whitcomb, of Blackfoot, for respondent.

WM. E. LEE, J. This is an appeal from the district court of the Sixth judicial district for Lemhi county, and involves the Settlement of the account of an administrator.

Respondent was appointed administrator of the estate of John Tormey, deceased, on or about December 5, 1916, and he immediately Qualified and entered upon the duties of his office. On December 24, 1920, respondent filed in the probate court of Lemhi county, his “second account” as administrator. Thereafter, appellants filed therein their exceptions to the account. The matter of the settlement of the account came on for hearing in the probate court, and on February 8, 1921, the probate court allowed the account in part and disallowed it in part. Thereupon, the administrator appealed from the order of the probate court, and the appeal was heard in the district court. The judgment of the district court affirmed the order of the probate court as to all except one item of the account. In connection with this one item, the probate court allowed the administrator $400 on an item in which $800 was claimed. The judgment of the district court allowed the administrator $800 on the item instead of $400, and this appeal is from that part of the judgment.

Appellants assign as error the action of the district court in permitting the item as originally filed in the probate court to be amended in the district court, and in allowing the item as amended. The item, as submitted by the administrator in his account filed in the probate court, reads as follows:

1917.

Oct. 3. Paid A. M. Colwell, for performance of annual labor on Tormey group for 1916, as required by section 2324, Revised Statutes of the United States $800 00

Appellants excepted to this item. As hereinbefore stated, the item was allowed in the sum of $400, the probate court finding that only $400 had been paid by the administrator to Colwell. The appeal was taken on questions of both law and fact. The district court allowed the item in the full sum of

©->For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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