Pryor v. Craft

1947 OK 48, 181 P.2d 979, 199 Okla. 17, 1947 Okla. LEXIS 552

• Court: Supreme Court of Oklahoma
• Decided: February 18, 1947
• Docket: No. 31066
• Status: Published

Opinions

ARNOLD, J.

Woodrow Pryor, an unallotted fullblood member of the Osage Indian Tribe, died intestate in Osage county, Okla., on October 20, 1938. At the time of his death he was 19 years of age. He had never been married. Surviving him as his next of kin was his mother, Martha Pryor, Osage Allottee, No. 99, a living half sister, Susie Pryor Craft, daughter of Antwine Pryor, the three minor children of a full brother, Alfred Pryor, who died intestate on October 21, 1936, Alfred Antwine Pryor, Mary Martha Pryor and Irene Marcelle Pryor, and a fullblood brother, Elmer Pryor, an unallotted Osage who died on May 17, 1939, after the death of the said Woodrow Pryor.

There is no controversy as to the facts. It was stipulated that the deceased inherited from his father, Ant-wine Pryor, an undivided interest in certain real estate, a fractional head-right in the amount of 191/270th and building and loan stock; that except for accumulations thereto this was all the property of which he died seized; that the above-named half sister and the two brothers were children of his father, Antwine Pryor; that Elmer Pryor died after the death of Woodrow Pryor leaving surviving him a minor child, Julia Addie Pryor, and two claimants, each aserting to be the surviving widow, namely, Oliva McClure Pryor and Ola May Pryor, nee Davis; that in the mattér of the estate of his father, Antwine Pryor, there was distributed to the credit of the said Woodrow Pryor the sum of $2,605.38 designated as trust fund and the sum of $22,065.44 designated as surplus funds; these funds were held by the Osage Indian Agency; that in a partition suit involving the real estate left by his father, Antwine Pryor, the 320 acres involved was distributed to Woodrow Pryor; in order to equalize the value thereof among the various participants in the division of said land $1,101.38 was paid from the funds of Woodrow Pryor to the other interested parties. It was further stipulated that at the time of the death of Woodrow Pryor there stood to his credit in the Osage Indian Agency trust funds the sum of $2,668.64 and surplus funds in the amount of $23,588.36, and securities in the aggregate sum of $3,405.05; that on February 11, 1942, the trust fund amounted to $2,668.24, the surplus fund $28,456.30 and the securities $3,409.81.

The county court held that the property, funds and income descended from the father, Antwine Pryor, and that the estate should be distributed under subdivision 7, section 213, 84 O.S. 1941; that the mother, Martha Pryor, was not entitled to inherit any part or portion of the estate, and distributed same as follows: An undivided one-third interest to the half sister, Susie Pryor Craft, an undivided one-third interest to the three children of the full brother, Alfred Pryor, and the remaining one-third interest to the estate of Elmer Pryor, a full brother, whose estate was pending upon appeal in the district court of Osage county awaiting final judgment and settlement as to the true heirs of the said Elmer Pryor, deceased.

The mother, Martha Pryor, appealed to the district court of Osage county. After trial de novo, on the 12th day of February, 1942, the district court distributed the estate of Woodrow Pryor-in the same manner as it had been distributed by the county court.

Martha Pryor appealed.

It is first contended:

“The property of a deceased member-of the Osage Tribe of Indians who dies intestate, leaving no issue nor husband nor wife, goes to the parents equally, if both are living; if one parent be dead it all goes to the living parent.”

Section 6 of the Osage Allotment Act, enacted by the Congress June 28, 1906 (34 St. L. 539), provides:

“That the lands, moneys and mineral interests, herein provided for, of any deceased member of the Osage Tribe shall descend to his or her legal heirs,,. according to the laws of the Territory of Oklahoma or the state in which said reservation may be hereinafter incorporated except where the decedent leaves no issue nor husband nor wife, in which case said lands, moneys and mineral interests must go to the mother and father equally.”

Subdivision 2, section 6895, Statutes of Oklahoma 1903, in force at the time of the enactment of the Allotment Act, in part, provided:

“If decedent leave no issue, nor husband nor wife, the estate must go to the father.”

In 1909 this part of the subdivision was amended to read as follows:

“If decedent leave no issue, nor husband nor wife, the estate must go to the father or mother, or if he leave both father and mother, to them in equal shares.”

This provision of subdivision 2 has not been amended or changed since that time and now appears as a part of subdivision 2 of section 213, 84 O.S. 1941.

Subdivision 7 of section 213, supra, was enacted in 1890 and has not been changed. It provides:

“If decedent leave several children, or one child and the issue of one or more children, and any such surviving child dies under age, and not having been married, all the estate that came to the deceased child by inheritance from such decedent, descends in equal shares to the other children of the same parent, and to the issue of any such other children who are dead, by right of representation”.

The appellant, Martha Pryor, takes the position that the exception in section 6 of the Allotment Act applies to all property of deceased Osage Indians who were never married regardless of the source of title; that by reason thereof subdivision 7, supra, has no application to estates of deceased Osage Indians. In other words, Congress adopted the law of descent and distribution of the State of Oklahoma and made such law applicable to the estates of deceased Osage Indians with the exception of the above-quoted part of said subdivision 2 and subdivision 7.

Congress retained control of the Indians and their tribal property and had the power to cast descent and control the devolution of their estates. The property of a deceased Indian, therefore, passes by virtue of the laws of the United States. See Childers v. Beaver, 270 U. S. 555, 70 L. Ed 730; Childers v. Pope, 119 Okla. 300, 249 P. 726.

By section 6, supra, Congress made the law of succession of the State of Oklahoma applicable to the estates of deceased Osage Indians except where the decedent left no issue nor husband nor wife. Later (37 St. L. p. 86, chap. 83, sec. 3) Congress conferred jurisdiction on the county courts of this state to determine heirs and distribute the estates of deceased Osage Indians. Congress by said acts cast the descent and the control of the devolution of the estates of deceased Osage Indians under the laws of the State of Oklahoma as interpreted and applied by the courts of this state except as indicated above.

It will be noted that subdivision 2, supra, prior to its amendmeht, provided that:

“If decedent leave no issue, nor husband nor wife, the estate must go to the father.”

It seems clear to us that the exception set forth in section 6, supra, was for the specific purpose of correcting what Congress considered a deficiency or inequity in the law of succession of the Territory of Oklahoma as it existed at the time of the enactment of section .6, supra, which was that the mother received no part of her deceased minor child’s estate where such child left no issue nor husband nor wife. (In 1909 the Legislature of the State of Oklahoma recognized this discrepancy and amended subdivision 2, making provision therein for the mother.) The wording of the exception, in our opinion, discloses that it was not intended to apply and has no application to the situation contemplated by subdivision 7, supra, to wit: the death of a minor seized of ancestral property without issue and leaving surviving other children of his ancestor or issue of such children. Such exception contemplated a living father or mother and it is apparent that it does not have reference to property inherited by a minor child from a deceased parent. The applicability of subdivision 7, supra, to the estates of deceased Osage Indians has been recognized in the case of He-ah-to-me v. Hudson, 121 Okla. 173, 249 P. 138; United States v. Hale, 51 Fed. 2d 629.

We have held in case a party dies intestate leaving surviving his wife and several children and his estate is distributed one-third to the surviving wife and two-thirds equally to the children, that if one of the children dies during minority, without having been married, subdivision 7 becomes applicable and its interest in all the estate so inherited from its father goes, not to its mother, but to the surviving children and the issue of the children who are dead, of the deceased father. See He-ah-to-me v. Hudson, supra; Cooper v. Spiro State Bank, 137 Okla. 265, 278 P. 648; Zweigel v. Lewis, 139 Okla. 171, 281 P. 787; L. R.A. 1916C, 926; Deal v. Logan, 183 Okla. 513, 83 P. 2d 563. In the casé of He-ah-to-me v. Hudson, supra, we quoted, with approval the following language from the case of De Castro v. Barry, 18 Cal. 97, wherein the California court considered a similar provision of the California statute:

“The respondent’s counsel contends that this case falls within the seventh clause of the statute, and such is our opinion. The language of the clause is unequivocal. The act is carefully drawn, and we must suppose, embodies the deliberate meaning of the Legislature. We must give effect to this meaning without interpolating any new terms or qualifications, unless this be necessary to reconcile conflicting and contradictory expressions. The clause in question provides for a specific and peculiar state of facts; therefore, there is no contradiction between it and the general provisions going before, for these last provide the usual rule, while the latter clause provides the unusual rule, or the rule governing the particular case recited. This is not a contradiction, but only an exception. It is as if the second clause read: ‘If the intestate shall leave no issue, or husband, or wife, the estate shall go to his or her father; provided, that if any person shall die leaving several children, and any one of them shall die unmarried, etc., the share of such decedent child coming from such deceased parent shall go to the surviving children of the same parent.’ ”

Subdivision 7, supra, applies only to . property inherited by a minor from a deceased parent and has no application to the other property, if any, owned otherwise by such a minor.

The subdivision in no way affects, restricts nor circumscribes the handling of such an estate for the use and benefit of the minor. Alienation is not affected thereby nor is the estate suspended by contingency. Such estate, or any part thereof, may be sold by the guardian of the minor in the manner provided by law. The subdivision merely makes provision for the devolution of the part of such estate of the deceased parent vested in and rémaining undisposed of by the minor at the time of the minor’s death without having been married.

By the adoption of the law of succession of Oklahoma Congress determined that the ancestral estate of a minor Osage Indian, who dies without having been married, shall descend in equal shares to the other children of the parent from whom the property came and to the issue of such other children who are dead by right of representation.

■ Under our statute (84 O.S. 1941 §212) and the decisions of this court (Seal v. Banes, 168 Okla. 550, 35 P. 2d 704; Davis v. Morgan, 186 Okla. 30, 95 P. 2d 856)’, upon the death of Antwine Pryor his entire estate descended and upon such descent became immediately vested in his heirs, of whom Woodrow Pryor was one.

The contemporaneous construction of the statute by the executive officers of the government, whose duty it is to administer it, is entitled to great respect but is not controlling. Accordingly, we have carefully considered the construction placed on section 6 of the Allotment Act by the Department of the Interior from the time of its enactment until 1912 when the administration of the act was turned to the county courts. This interpretation and application of said section, during said period of time, was apparently in accord with the interpretation sought by the appellant. We have also considered the opinion of the Solicitor General rendered to the department in 1928 and followed by it since then. The conclusion of the Solicitor General in his opinion to the department is the same as ours.

The appellant next contends that even if subdivision 7, supra, is applicable to estates of deceased Osage Indians, that:

“Osage quarterly annuity payments, real estate acquired under and through a partition suit, rents, issues and profits from real estate, interest and profits on money, and dividends from building and loan stock, received during five and one-half years after the death of the father, do not constitute estate coming from said, deceased father by inheritance.”

84 O.S. 1941 §212 provides:

“The property, both real and personal of one who dies without disposing of it by will passes to the heirs of the intestate, subject to the control of the county court, and to the possession of any administrator appointed by that court for the purpose of administration.”

The real and personal property of a decedent who dies intestate passes to his or her heirs as of the date of his or her death subject to the control of the county court for the purpose of administration. Title to such property is fixed in the heirs as of that date. See Davis et al. v. Morgan, supra; Seal et al. v. Banes et al., supra; Oil Well Supply Co. et al., v. Cremin et al., 143 Okla. 57, 287 P. 414. The property, both real and personal, of which Antwine Pryor died seized passed to his heirs immediately upon his death and the title thereto became fixed as of that date.

The income from the ancestral property, consisting of accruals of the head-right, rentals received from agricultural leases on the land and the dividends on the building and loan stock from and after the date of the death of Antwine Pryor, constitutes new acquisitions or accumulations to the estate received from his deceased parent by virtue of his ownership. See Johnson v. Copeland’s Administrator, 35 Ala. 521; Fawcett Inv. Co. v. Rullestad, 218 Iowa, 654, 253 N.W. 131, 94 A.L.R. 800; Bishop Trust Co. v. Thomas, 32 Hawaii, 140; Tucker et al. v. Brown, 185 Okla. 234,, 90 P. 2d 1071; Roundtree v. Pursell 111 Ind. App. 522, 39 N.E. 747; Caruso v. Caruso, 103 N.J. E. 487, 143 A. 771.

In this connection the appellees cite and rely upon In re Pierce’s Estate, 161 Okla. 94, 17 P. 2d 411; In re Wagner’s, Estate, 178 Okla. 384, 62 P. 2d 1186; Boyes’ Estate et al. v. Boyes et al., 184 Okla. 438, 87 P. 2d 1102. The question determined by those cases was whether or not the property involved was acquired by the joint industry of the husband and wife. Such cases are not analogous or in point; they do not go to the question of whether the income received from inherited property comes by inheritance, and for this reason are not of controlling importance here.

Although title by purchase includes every known method of acquiring an estate except that by which it passes to an heir by operation of law, it is generally held that a partition suit does not change an estate otherwise ancestral to an estate of purchase; the division of property owned in common by such inheritance does not ordinarily change the title from one of inheritance to a title by purchase. See In re Moran’s Estate, 174 Okla. 507, 51 P. 2d 277, 103 A.L.R. 227. The concentration of title to an undivided interest in land in a portion thereof remains the same title in legal effect, and therefore that portion of an ancestral tract of land received by an heir by partition is ancestral though a sum of money is required to be paid to equalize the aliquot parts between the heirs.

In the case of United States v. Hale, supra, it was held that since in the partition suit the minor, Charles Bigheart, was distributed a lesser interest than that which he inherited, he acquired by purchase the interest in the land under the partition decree and not by inheritance. Such holding, in our opinion, is contrary to our decision in Re Moran’s Estate, supra.

It is our conclusion that the $2,605.38 designated trust fund and the $22,065.44 designated as the surplus fund set over to Woodrow Pryor, as of the time of his father’s death, the partial headright interest, the building and loan stock and the land decreed to Woodrow Pryor, came by inheritance from his father and should have been, as it was, distributed under said subdivision 7, supra, to the other children of his father and the issue of the deceased child. Any balance of the funds held by the Indian Agency at the time of and after Woodrow Pryor’s death which was received by it after the death of said Antwine Pryor, as accumulations to such funds by reason of rents, interests, payments on the headright, etc., should descend and be distributed under section 6, supra, of the Osage Allotment Act, to his mother.

The judgment is accordingly affirmed as to the items determined to be ancestral in their nature and reversed as to the items determined to be new acquisitions.

HURST, C.J., DAVISON, V.C.J., and RILEY, OSBORN, WELCH, and CORN, JJ., concur. BAYLESS and GIBSON, JJ., dissent.