The parties appear in this court in the same position they occupied in the court below, and will be referred to as plaintiffs and defendants.
The plaintiffs brought an action against the defendants wherein they claimed an interest in certain lands originally allotted to Jennie George, nee Pickett, who was enrolled as a bull-blood member of the Creek Tribe of Indians.
The plaintiffs alleged that they are heirs it law of Willie George, who was the husband of Jennie George, and that Willie George died intestate August 20, 1918; that Jennie George died prior to the death of her husband; that she made and executed a will in which she bequeathed to her husband the sum of $5; and that in the same will she bequeathed to her sisters all of her interest in and to her allotted lands; that the value of said lands amounted to several thousand dollars and largely in excess of two-thirds of her estate, thereby disinheriting her husband to the extent of the difference between the amount that she bequeathed him and the actual value of one-third of the estate, to which the husband would have been entitled under the Oklahoma Code.
The plaintiff's in their petition set forth a copy of the will made and executed by Jennie George, wife of the said Willie George, and said will as exhibited is shown to have been duly acknowledged and approved by Warren H. Brown, judge of the county court of Creek county, on the 8th day of March, 1913.
Defendants filed a demurrer to the plaintiffs' petition, which demurrer was sustained by the court, and judgment was rendered by the court dismissing the plaintiffs' petition.
The plaintiffs elected to stand upon their petition as filed, and from the judgment rendered therein the plaintiffs appeal.
There is but one vital question herein presented, that is, does section 23, Act of Congress, April 26, 1906 (34 Stat. 145), as amended by section 8, Act of Congress, May 27, 1908 (35 Stat. 315), constitute a federal exception to the Oklahoma law relating to wills?
Section 23 of the Act of Congress of April 26, 1906, provides:
"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 Act of May 27, 1908, sec. 8, amended said act by adding at the conclusion thereof, "or a judge of a county court of the state of Oklahoma."
The defendants below claimed and asserted that said acts of Congress permitted the wife under a will to disinherit the husband provided the will was acknowledged before and approved by one of the federal agencies named in the act of Congress.
The plaintiffs contend that section 11224, C. O. S. 1921, is controlling. Said section reads as follows:
"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 living, shall be allowed to bequeath same by will."
This court in the case of Blundell v. Wallace, 96 Okla. 29,220 P. 40, had under consideration the will of one Patsy Poff, who was an enrolled half-blood member of the Choctaw Tribe of Indians. By the terms of said will, Patsy Poff bequeathed to her husband the sum of $5, and it was shown that her estate was worth several thousand dollars, and that by bequeathing to her husband the sum of $5 the said will was in contravention of the Oklahoma Code in that it bequeathed more than two-thirds of the property away from the husband. This court held that the provision of the will was ineffectual. There was an appeal from this decision to the United States Supreme Court, and that court affirmed the holding of this court. See Blundell v. Wallace, 69 L.Ed. 664.
It must be remembered, however, that the court there was considering the will of an Indian of the half-blood. In the instant case we are considering the will of a full-blood member of one of the Five Civilized Tribes.
The case of Blanset v. Cardin, 256 U.S. 319, 65 L.Ed. 950, 41 Sup. Ct. Rep. 519, involved a will of an Indian woman of the Quapaw Tribe whose lands were restricted. Said will bequeathed her restricted lands in question to the children and grandchildren of the testatrix. She bequeathed to her husband the sum of $5. It appears the estate was worth approximately $40,000. The court in that case in passing on the question said:
"But against the contention and conclusion, the Act of Congress approved February 14, 1913 (37 St. at L. 678, chap. 55, Comp. Stat. section 4228. 3 Fed. Stat. Anno. 2nd Ed. p. 855) is opposed. Section 2 of that act is as follows:
" 'Section 2. That any persons of the age of 21 years, having any right, title, or interest in any allotment held under trust or other patent containing restrictions on alienation, or individual Indian moneys, or other property held in trust by the United States, shall have the right prior to the expiration of the trust or restrictive period, and before the issuance of a fee-simple patent or the removal of restrictions, to dispose of such property by will, in accordance with regulations to be prescribed by the Secretary of the Interior: Provided, however, that no will so executed shall be valid or have any force or effect unless and until it shall have been approved by the Secretary of the Interior: Provided, further, that the Secretary of the interior may approve or disapprove the will either before or after the death of the testator, and in case where a will has been approved and it is subsequently discovered that there has been fraud in connection with the execution or procurement of the will, the Secretary of the Interior is hereby authorized within one year after the death of the testator to cancel the approval of the will, and the property of the testator shall thereupon descend or be distributed in accordance with the laws of the state wherein the property is located: Provided, further, that the approval of the will and the death of the testator shall not operate to terminate the trust or restrictive period, but the Secretary of the Interior may, in his discretion, cause the lands to be sold and the money derived therefrom, or so much thereof as may be necessary, used for the benefit of the heir or heirs entitled thereto, remove the restrictions, or cause patent in fee to be issued to the devisee or devisees, and pay the moneys to the legatee or legatees either in whole or in part from time to time as he may deem advisable, or use it for their benefit: Provided also, that sections 1 and 2 of this act shall not apply to the Five Civilized Tribes or the Osage Indians.'
"The Secretary of the Interior made regulations which were proper to the exercise of the power conferred upon him and the execution of the act of Congress, and it would seem that no comment is necessary to show that section 8341 is excluded from pertinence or operation.
"But this conclusion counsel resists.
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The parties appear in this court in the same position they occupied in the court below, and will be referred to as plaintiffs and defendants.
The plaintiffs brought an action against the defendants wherein they claimed an interest in certain lands originally allotted to Jennie George, nee Pickett, who was enrolled as a bull-blood member of the Creek Tribe of Indians.
The plaintiffs alleged that they are heirs it law of Willie George, who was the husband of Jennie George, and that Willie George died intestate August 20, 1918; that Jennie George died prior to the death of her husband; that she made and executed a will in which she bequeathed to her husband the sum of $5; and that in the same will she bequeathed to her sisters all of her interest in and to her allotted lands; that the value of said lands amounted to several thousand dollars and largely in excess of two-thirds of her estate, thereby disinheriting her husband to the extent of the difference between the amount that she bequeathed him and the actual value of one-third of the estate, to which the husband would have been entitled under the Oklahoma Code.
The plaintiff's in their petition set forth a copy of the will made and executed by Jennie George, wife of the said Willie George, and said will as exhibited is shown to have been duly acknowledged and approved by Warren H. Brown, judge of the county court of Creek county, on the 8th day of March, 1913.
Defendants filed a demurrer to the plaintiffs' petition, which demurrer was sustained by the court, and judgment was rendered by the court dismissing the plaintiffs' petition.
The plaintiffs elected to stand upon their petition as filed, and from the judgment rendered therein the plaintiffs appeal.
There is but one vital question herein presented, that is, does section 23, Act of Congress, April 26, 1906 (34 Stat. 145), as amended by section 8, Act of Congress, May 27, 1908 (35 Stat. 315), constitute a federal exception to the Oklahoma law relating to wills?
Section 23 of the Act of Congress of April 26, 1906, provides:
"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 Act of May 27, 1908, sec. 8, amended said act by adding at the conclusion thereof, "or a judge of a county court of the state of Oklahoma."
The defendants below claimed and asserted that said acts of Congress permitted the wife under a will to disinherit the husband provided the will was acknowledged before and approved by one of the federal agencies named in the act of Congress.
The plaintiffs contend that section 11224, C. O. S. 1921, is controlling. Said section reads as follows:
"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 living, shall be allowed to bequeath same by will."
This court in the case of Blundell v. Wallace, 96 Okla. 29,220 P. 40, had under consideration the will of one Patsy Poff, who was an enrolled half-blood member of the Choctaw Tribe of Indians. By the terms of said will, Patsy Poff bequeathed to her husband the sum of $5, and it was shown that her estate was worth several thousand dollars, and that by bequeathing to her husband the sum of $5 the said will was in contravention of the Oklahoma Code in that it bequeathed more than two-thirds of the property away from the husband. This court held that the provision of the will was ineffectual. There was an appeal from this decision to the United States Supreme Court, and that court affirmed the holding of this court. See Blundell v. Wallace, 69 L.Ed. 664.
It must be remembered, however, that the court there was considering the will of an Indian of the half-blood. In the instant case we are considering the will of a full-blood member of one of the Five Civilized Tribes.
The case of Blanset v. Cardin, 256 U.S. 319, 65 L.Ed. 950, 41 Sup. Ct. Rep. 519, involved a will of an Indian woman of the Quapaw Tribe whose lands were restricted. Said will bequeathed her restricted lands in question to the children and grandchildren of the testatrix. She bequeathed to her husband the sum of $5. It appears the estate was worth approximately $40,000. The court in that case in passing on the question said:
"But against the contention and conclusion, the Act of Congress approved February 14, 1913 (37 St. at L. 678, chap. 55, Comp. Stat. section 4228. 3 Fed. Stat. Anno. 2nd Ed. p. 855) is opposed. Section 2 of that act is as follows:
" 'Section 2. That any persons of the age of 21 years, having any right, title, or interest in any allotment held under trust or other patent containing restrictions on alienation, or individual Indian moneys, or other property held in trust by the United States, shall have the right prior to the expiration of the trust or restrictive period, and before the issuance of a fee-simple patent or the removal of restrictions, to dispose of such property by will, in accordance with regulations to be prescribed by the Secretary of the Interior: Provided, however, that no will so executed shall be valid or have any force or effect unless and until it shall have been approved by the Secretary of the Interior: Provided, further, that the Secretary of the interior may approve or disapprove the will either before or after the death of the testator, and in case where a will has been approved and it is subsequently discovered that there has been fraud in connection with the execution or procurement of the will, the Secretary of the Interior is hereby authorized within one year after the death of the testator to cancel the approval of the will, and the property of the testator shall thereupon descend or be distributed in accordance with the laws of the state wherein the property is located: Provided, further, that the approval of the will and the death of the testator shall not operate to terminate the trust or restrictive period, but the Secretary of the Interior may, in his discretion, cause the lands to be sold and the money derived therefrom, or so much thereof as may be necessary, used for the benefit of the heir or heirs entitled thereto, remove the restrictions, or cause patent in fee to be issued to the devisee or devisees, and pay the moneys to the legatee or legatees either in whole or in part from time to time as he may deem advisable, or use it for their benefit: Provided also, that sections 1 and 2 of this act shall not apply to the Five Civilized Tribes or the Osage Indians.'
"The Secretary of the Interior made regulations which were proper to the exercise of the power conferred upon him and the execution of the act of Congress, and it would seem that no comment is necessary to show that section 8341 is excluded from pertinence or operation.
"But this conclusion counsel resists. He says: 'As long as restrictions have not been removed, the allotment is subject to the plenary power of Congress;' but 'when restrictions are removed, the allotment automatically becomes subject to the state law.' That is, and to make application to the pending case, at the instant his wife died, appellant became heir at law to one-third of her property under the laws of the state. Appellant's reasoning is direct and confident. By his wife's death, he asserts, her allotment was emancipated from government control; that under section 8341 her will was void; she, therefore, died intestate, and he became her heir of an undivided one-third of her allotment under section 8418, set out in the bill.
"And the further contention is that section 8341 is continued because the act of Congress does not expressly provide how the land shall be devised, and because it recognizes that the state laws of descent are applicable in case the Secretary disapproves the will after the death of the testator.
"If the first contention be true, the act of Congress is reduced to impotence by its contradictions. According to the contention, it permits a will, and immediately provides for its defeat at the very instant it is to
take effect and can only take effect. Such antithetical purpose cannot be imputed to Congress, and it is repelled by the words of section 2. They not only permit a will, but define its permissible extent, excluding any limitation or the intrusion of any qualification by state law. They provide that one having an interest in any allotment held under trust or other patent containing restrictions on alienation shall have the right prior to the expiration of the trust or restrictive period, and before the issuance of a fee-simple patent or the removal of restrictions, to dispose of such property (emphasis ours) by will in accordance with regulations to be prescribed by the Secretary of the Interior. And it is further provided that the Secretary of the Interior may approve or disapprove the will either before or after the death of the testator,' and that neither circumstance shall 'operate to terminate the trust or restrictive Period, but the Secretary of the Interior may in his discretion * * * cause patent in fee to be issued to the devisee or devisees.' * * *
"And we agree with the court of appeals that the act of Congress was the prompting of prudence to 'afford needed protection to dependent and natural heirs against the waste of the estate as the result of an unfortunate marriage, and enforced inheritance by state law'."
In the case of Blundell v. Wallace, supra, cognizance is taken of the case of Blanset v. Cardin, supra, and it is there said:
"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.' * * * But here the federal statute contains no provision 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."
Thus it is noted that in the case of Blundell v. Wallace, supra, the closing paragraph states where "the federal statute contains no provision of like character * * * except in the single particular set forth in the proviso." Evidently the court there had in mind the particular proviso in section 23, providing that no will of a full-blood Indian devising real estate shall be valid if such last will and testament disinherits the wife and children of such full-blood Indian unless acknowledged and approved by a Judge of the United States court for the Indian Territory or a United States commissioner, or, as later added, "judge of a county court of the state of Oklahoma."
Certainly if Congress had intended that section 23 be an acceptance of the Code of Oklahoma relating to wills, it could have easily done so without any exception or proviso, and there would have been no need of providing a procedure for disinheriting the wife or husband.
It seems to us that Congress in providing a procedure whereby a full-blood member of one of the Five Civilized Tribes might disinherit the husband or wife creates a specific exception to the Oklahoma statute. If Congress did not intend to create an exception, then the provision relating to the wills of full-blood members who attempted to disinherit the wife or husband is only idle and meaningless. It cannot be denied that Congress had the plenary power to provide for the disposition by the Indians of their restricted lands in a manner Congress saw fit, and in our judgment section 23 relating to a full-blood is a federal exception in part and in contravention to section 11224 of the Oklahoma Code.
The word "unless," as used in the proviso of section 23, is the equivalent to and is on parity with "except."
As said in the case of Manning v. Keenan, 73 N.Y. 46, the word "unless" has the force of the word "except." Its primary meaning is unloosened from; so what follows in the sentence after the word "unless" is excepted or unloosened from what went before it. Such a form of expression in a statute sometimes amounts to an affirmative enactment, and in fact, proprio vigore, confers all that is excepted from a negative or restrictive provision.
Judgment is affirmed.
MASON, C. J., and HUNT, HEFNER, CULLISON, and ANDREWS, JJ., concur. CLARK, RILEY, and SWINDALL, JJ., dissent.