58 Mo. 510 | Mo. | 1875
'delivered the opinion of the court.
This suit was brought under the 9th and 47th sections of the act concerning wills (Wagn. Stat., 1365). The plaintiffs in their petition state that the decedent William Gilliss and ICahketoqua, an Indian wowan, child and daughter of La-harsh, a chief of the Piankeshaw nation or tribe of Indians, in the life-time of said Gilliss, and in the Indian country, about the year eighteen hundred and thirty, were married as hue-
Plaintiffs in their petition, further state that they are descendants and children of said Nancy, who was a child of said testator, William Gilliss ; and although such descendants and children, they, the said plaintiffs, are not and were not, in or by said will or any of its provisions, named or provided for,
The petition further alleges, that by the law said testator, as to plaintiffs, his said grand-children, and their mother, said Nancy, not named or provided for in or by said will, is deemed to have died intestate, and that they, said plaintiffs, are entitled to such proportion of the estate of the testator, real and personal, as if he had died intestate, and that they are entitled to have the same assigned to them. And plaintiffs pray the court to declare and adjudge the intestacy of said William Gilliss as to plaintiffs, and for contribution accordingly from said defendant as executrix and legatee, and for such other and further relief as the court shall deem right and proper.
• The suit, as originally brought, was against Mary A. Troost as executrix and also as legatee under the will. -Defendant, Mary A. Troost, died, leaving a will by which she disposed of her whole estate, including that derived by her under the will of the said William Gilliss, and the suit was revived against her executors, the defendants, Donnelly .and Black.
Defendant, Mary A. Troost, as executrix and also as legatee, made answer.to the petition; and in the answer protested that plaintiffs’ petition does not state facts sufficient to constitute a cause of action against defendant, as executrix, to be •answered unto, nevertheless for answer, defendant in substance states that she had no sufficient knowledge or information to form a belief whether Kahketoqua was the child and daughter ofLaharsh and says it is not true ; and she denies that said testator, William Gilliss, and said Kahketoqua, in the lifetime of said William Gilliss and in the Indian country, about the year 1831, or at any other time,, were married as husband ■and wife; denies that they for a long time thereafter or for. any length of time, cohabited and lived together as husband and wife; denies that there was any issue of any marriage between Gilliss and Kahketoqua, and says if Kahketoqua did leave a child it was not lawfully begotten by the testator.
To defendant’s answer there was a replication by plaintiffs.
In the progress of the cause in the court below and on the application of Sophia Gilliss and Mary Gilliss, they were admitted as parties defendants. They filed answer in substance denying plaintiffs’ right as asserted and claiming to be children and heirs of the testator Gilliss, and entitled to share in the estate, and charging that the defendant, Mary A. Troost, had, by fraud and other means, procured the making and execution of the will, by which they were each cut off with a bequest of the nominal sum. of ten dollars.
Portions of the answer were ruled out and the remaining portions replied to by plaintiffs.
In the fnrther progress of the cause, defendant Mary A. Troost having died, defendants Donnelly and Black as ex-
In the further progress of this cause and at the trial term .thereof, and before the jury was called or sworn, the court, on motion of plaintiffs, decided to have prepared for submission to the jury issues upon questions of fact, and under the directions of the court such issues were accordingly framed, and are as follows :
The court submits to the jury for trial the following issues : .First. Were William Gilliss and said Kahketoqua, an Indian woman, married about 1830, and did they live together as husband and wife? Second. Did they, the said William Gilliss and Kahketoqua, have issue, and was the said Nancy Gilliss the issue and only issue of said marriage ? Third. Are the plaintiffs, Francis Boyer and. James Charley, Junior, the descendants and only descendants of said Nancy Gilliss?' Fourth. Had the said Kahketoqua and Nancy Gilliss died before the commencement of this suit, to-wit: before the loth day of October, 1869? Fifth. Did said William Gilliss, before the commencement of this suit, die, having first made his last will as stated in plaintiffs’ petition ? Sixth. Did said William Gilliss, the testator, die, leaving plaintiffs, Francis Boyer and. James Charley, Junior, descendants of said Nancy, but in his last will omit and fail to name and provide for plaintiffs or. either of them as descendants of said Nancy Gilliss, and did he also fail and omit to name or provide for said Nancy Gilliss?- Seventh. Are the said Sophia Gilliss and Mary Gilliss children and heirs of William Gilliss, and are they both named and provided for in the said will ?
The defendants objected to the submission of issues or questions of fact to the jury.
The court overruled defendants’ objections, and ruled and decided to call a jury to try the issues of facts as framed, and thereupon a jury was called and sworn, and plaintiffs were
The objections of defendants were by the court overruled, .and plaintiffs proceeded with their testimony, and the trial of the issue progressed:
The evidence in the case is voluminous and conflicting. It is unnecessary to state it in detail, as the questions of fact were submitted to a jury, under instructions which will be noticed.
The main fact in dispute was as to the marriage of Gilliss with an Indian woman, named Kahketoqua, a daughter of a chief of the Piankeshaws. Gilliss it seems had a trading post at the James’ Fork of White river, among the Delaware tribe of Indians, and had successively two wives, who Were Delawares, and acknowledged the children of these wives. About the year 1829 or 1830, he proposed to Laharsh, a Piankesliaw chief, to marry his daughter, named Kahketoqua, and employed a man named Baptiste Peoria to negotiate the marriage. Laharsh was then living at Cowskin creek in the Indian country. This Baptiste Peoria, who is the principal witness for plaintiffs, visited Laharsh and reported favorably to Gilliss, and Gilliss and Peoria then went down to the settlement in Oowskin creek, and carried with them presents to the father and mother of Kahketoqua, which were satisfactory and returned with Kahketoqua. Nancy Gilliss, the mother of the plaintiffs, was the offspring of the cohabitation or marriage. There was evidence to show a subsequent recognition of Kahketoqua and her child, and there was evidence to the contrary.
The greater part of the evidence against the marriage is of a negative character, that is, it is of persons who were about Gilliss’ domicile, but who knew nothing of the Piankesliaw woman as his wife. There seems to be no question, that the plaintiffs are descendants of Nancy Gilliss, who was reputed to have been the daughter of the Piankesliaw, wife of Gilliss.
Marriages were dissolvable at the option of the parties. In this case Gilliss sent Kahketoqua back, after living with lier for a few months, promising however to recall her, when he returned from the East. There is evidence that he sent presents to her child, Nancy, the mother of the plaintiffs.
The first, second, third, fourth, fifth and sixth issues the jury found affirmatively and for plaintiffs, and the seventh issue they also found affirmatively.
On the trial, and after the evidence was closed, plaintiffs asked instructions as follows:
1st. “If the jury believe from the evidence, that the testa: tor, William Gilliss, and said Kahketoqua, an Indian woman, about the year 18S0 were-married in the Indian country and according to Indian usages, and as husband and wife lived and cohabited together, and that there was issue of said marriage and cohabitation, and that said Nancy Gilliss was the issue and only issue of said marriage and cohabitation, and shall further believe that the plaintiffs, Francis Boyer and James Charley, Junior, are the descendants and only descendants of said Nancy Gilliss, and shall further find that said Kahketoqua and Nancy Gilliss died before the commencement of this suit, and shall further find that said testator died leaving his last will as stated in plaintiffs’ petition, and so died leaving plaintiffs, Francis Boyer and James Charley, Junior, descendants of said Nancy Gilliss, and in his said last will failed and omitted to name or provide for plaintiffs as descendants of said Nancy, and did also fail and omit to name or provide for said Nancy Gilliss, then the jury must find for plaintiffs on the first six issues submitted to the jury.”
2d. “If the jury believe from the evidence, that the testator, William Gilliss, took said Kahketoqua, an Indian woman, in the Indian country, about the year 1830, as his wife’, according to the usages prevailing among the Indians, and co
3d. “If the jury believe from the evidence, that the said William Gilliss, about the year 3830, was married to an Indian woman named Kahketoqua, in the Indian country, according to Indian usages, and had by her Nancy Gilliss, as the issue aud only issue of said marriage, such issue is legitimate, although the jury may believe, that by Indian usages said Gilliss had a right to abandon said Kahketoqua at any time after said marriage, then the jury must find the first two issues for plaintiffs.”
4th. The court further instructs the jury, “if you should believe from the evidence, that Nancy Gilliss was the child of William Gilliss and an Indian woman named Kahketoqua, and shall further believe from the evidence that Gilliss, Kahketqqua and Nancy are all dead, the legitimacy of said Nancy being called in question, you should give every reasonable presumption in favor of her legitimacy not necessarily excluded ■by the evidence.”
• 5th. It is admitted by the pleadings in this case, that William Gilliss died before the commencement of this suit leaving his last will, and it is further admitted by the pleadings that said William Gilliss, the testator, in his said last will failed and» omitted to name or provide for plaintiffs as descendants of said Nancy Gilliss, and that- he the said Gilliss did so fail and omit to name or provide for said Nancy Gilliss in his said last will.
6th. It being charged and alleged in the answers in this case that said testator, William Gilliss, left him surviving, two legal heirs, to-wit: Sophia Gilliss and Mary Gilliss, this is an admission by defendants of the legitimacy of said Mary and Sophia Gilliss.
. All which instructions, from one to six inclusive, were given by the court, and excepted to by defendants, Donnelly and Black.
Defendants asked instructions as follows:
1st. “The court instructs the jury that as there is no controversy between plaintiffs and defendants as to the fifth and sey-enth issues submitted to them by the court, it being admitted that, as to the fifth issue, William Gilliss died before the commencement of this suit, he having first made his last will, and, as to the seventh issue, that Sophia Gillisand Mary Gillis are children and heirs of said William Gilliss, and are both named and provided for in the said will, the jury will find said issues in the affirmative, and as to said issues return the following verdict: ‘ We, the jury, find the fifth and seventh issues, submitted to us by the court, in the affirmative.’ ”
2nd. “'Although the jury may find the third, fourth and sixth issues submitted to them by the court in the affirmative, and may find as to third issue, that plaintiffs, Francis Boyer and James Charley, Jr., are the descendants and the only descendants of said Nancy Gilliss; and as to the fourth issue that said ICahketoqua and Nancy Gilliss died before the commencement of this suit, on the loth day of October, 1869; and as to the sixth issue, that said William Gilliss, the testator, did die leaving the plaintiffs, Francis Boyer and James “Charley, Junior, descendants of said Nancy, but in his last will did omit and fail to name or provide for plaintiffs or either of them as descendants of said Nancy Gilliss, and did also fail and omit to provide for said Nancy Gilliss, yet their so finding said third, fourth and sixth issues in the affirmative must in no wise control or influence their finding as to the said first and second issues, and the jury may so find said third, fourth and sixth issues, or any or all of them, in the affirmative, and yet may still find first and second issues in the negative for the defendants.”
3rd. “The court instructs the jury that although the jury may believe from the evidence, that said Gilliss and Kaliketoqua were actually married according to the usage and custom of the Indians, and did thereafter live and cohabit together
éth. “Although the jury may believe from the evidence that said William Grilliss did take the Indian woman, Kahketoqna, to his house at James Fork Trading Post, about the year 1830, and did cohabit with her for four to six months, and during that cohabitation did beget of her body the child Nancy, and that the plaintiffs are the only issue of said Nancy; yet if the jury further believe from the evidence, that said William Grilliss was, prior, during and subsequent to said year 1830, a citizen of the State of Missouri, residing within this State, and that the tribe of the Piankeshaw Indians, of which said Kahketoqna was a member, was at that time living within this State, and that Laliarsh, the father of Kahketoqna, and others of his family and a few other families, temporarily crossed over the line of this State, into the Seneca Indian Territory, on a hunting trip, intending, after the hunt was over, to return to their tribe in this State, and that whilst in said Seneca Indian country, said Gilliss crossed over the line of this State to the camp of said Laliarsh, in said Seneca Indian Territory and. then and there, according to the usage and custom of the Piankeshaw Indians in case of marriage, made presents to the parents, Laliarsh and wife, and took said Kahketoqna, and immediately thereafter went with her, her mother and brother, to his house at James Fork Trading Post, in this State, and there cohabited with her for several months, and then sent her mother and brother back to their tribe, and did not there
5th. “Although the jury may believe from the evidence, that in the Fall or Winter of 1829, William Gilliss took the Indian woman, Kahketoqua, in the Indian country, across the line of this State, and there cohabited with her in this State, for four or five months, when they separated, and she went to her people, and that they were thus married in accordance with the usage and customs among the Piankeshaw Indians, and by such cohabitation, there was issue; still if you believe that at the time Gilliss took Kahketoqua, she was only temporarily across the line with her father, on a hunting expedition, and her people and Gilliss lived in this State of Missouri, that by such usage and custom, either party had the right to separate at any time, and take another man or woman, and that the man had the right to have two or more such wives at one and the same time, then there was no marriage between the said Gilliss and Kahketoqua, as is required to be shown by plaintiffs in this case, and you will find the first and second issues in the negative.” .
6th. “Although the jury may believe from the evidence, that said William Gilliss did go from his house in Missouri to the camp of Laharsh and his wife, the father and mother of Kahketoqua, a Piankeshaw Indian woman, in the Seneca Indian Territory, and did then and there make such presents to them as were usual and customary among said Piankeshaw Indians in case of marriage, and did thereafter take said Kahketoqua, her mother and brother, to his house at James Fork Trading Post, and did there live and cohabit with her for several months, and up to the spring of the year, and duringsuch cohabitation did beget of the body of said Kahketoqua the said Nancy, and did afterwards, in said spring of the year, and before the birth of said Nancy, send said Kahketoqua, her mother and brother, back to their tribe, and did not thereafter live or cohabit with her as his wife ; yet these facts alone
7th. “Unless the jury believe from the evidence, .that William Gilliss and Kahketoqua were actually married, and that there was issue of such marriage, you will find the first and second issues in the negative, and in order to constitute marriage, they must have mutually agreed to be and to live together as husband and wife for an indefinite period ; that cohabitation and children thereof does not constitute marriage, and if such cohabitation is a casual commerce between the sexes, or for temporary purposes only, it is not even evidence of marriage, but in order to be evidence of marriage they must not only have lived together as man and wife, but must have held themselves out to the world as sustaining that honorable relation towards each other.”
8th. “The jury are instructed that if they believe from the evidence, that any witness or witnesses have sworn intentionally falsely to any material fact or facts in the case, then the j ury are authorized to disregard and reject the entire testimony of such witness or witnesses.”
The first, second, sixth, and eighth of which instructions asked by defendants the court gave, but refused the third, fourth, fifth, and seventh.
Defendants in due time, after the verdict of the jury was returned into court, which was for the plaintiffs, filed their motion in arrest of judgment, and therein assigned grounds ■ as follows: 1st. The petition does not state facts sufficient
Defendants also, in due time, filed in writing their motion for a new trial, and assigned therein grounds as following: 1st. The court erred in framing and submitting said issues to the jury. 2d. The court erred in admitting improper, illegal, incompetent and irrelevant evidence on the part of the plaintiffs against the objections of defendants. 3d. The court erred in rejecting and excluding proper, legal, competent and relevant evidence offered by defendants, on the objections of plaintiffs. 4th. The court erred in giving the instructions numbered one, two, three, four, five and six asked by plaintiffs, and given at their instance by the court. 5th. The court erred in refusing to give the instructions numbered three, four,-five and seven asked by defendants. 6th. The finding of the jury on said issues is against the instructions of the court and contrary to law. 7th. The finding of the jury on said issues is against the evidence and the weight of evidence in this cause. ,8th. The finding of the jury is against the-law and evidence.
The court below gave judgment and made decree as follows :
Now at this day came the parties aforesaid, and the jury by their verdict made and returned here into court found the first six of the issues submitted to them by the court affirmatively and for plaintiffs, and having also found the said seventh issue affirmatively, and it appearing also by the will of said testator, William Grilliss, that neither plaintiffs, Francis Boyer and James Charley, Jr., nor their mother, the said Nancy Grilliss or any or either of them were named or provided for in said will of said testator, William Grilliss.
And the court doth farther consider, adjudge and decree that said plaintiffs, as the children and descendants of the said Nancy Gilliss, are entitled to such proportion of the estate of said testator, William Gilliss, real and personal as if he had died intestate. And the jury having found that said testator died leaving also as his children and heirs at law, the said Sophia Gilliss and Mary Gilliss named and provided for in said testator’s will, it is further considered, adjudged and deemed, that said plaintiffs, Francis Boyer and James Charley, Jr., as children and descendants of the said Nancy Gilliss, deceased, and heirs at law of the said William Gilliss, are entitled and have right to one child’s share, to-wit: the one equal undivided third part and interest in the estate of said testator, William Gilliss, real and personal, and that the same ought to he and shall be assigned to them by the defendants, and by the said Probate Court of Jackson County. And the court, doth further consider and decree that said plaintiffs recover against the defendants their costs in this behalf expended to be levied of the share and interest in the estate of said Win. Gilliss of the said Mary A. Troost under the will, in the hands of said Michael Dively, administi’ator de bonis non of the said estate unadministered, and of the estate and assets of said Mai’y A. Troost, deceased, in the hands of said Bernai’d Donnelly and Francis M. Black, executors of the last will of said Mary A. Troost, unadministered, except so much of said costs as may have been occasioned by the said Sophia Gilliss and Mary Gilliss Rogers, which shall be taxed against them, and for which judgment is given against them.
The first question raised in this case, is as to the form of the action. It is insisted that the proceeding is premature,
This question was raised in the case of Levins vs. Stephens, (7 Mo., 91,) under a statute which was substantially in the terms of the present act. The 47th section of our present law (Wagn. Stat., p. 1370) is a mere copy of the 33rd section of the Revised Code of 1835 and contains the same word “ received,” which gave occasion to the discussion and decision in that case, from which we have no disposition to depart.
The second objection taken here, is to the action of the court, in submitting issues to a jury. .The 13th section of art. 9 of our Practice Act (Wagn. Stat., 1041) provides that the court in cases of the character of this, may take the opinion of a jury, xtpon any specific question of fact involved, by an issue made up therein for that purpose. Although this court has determined that such verdicts are not binding on the court, yet no objection is perceived to the course adojxted in this case.
The main questions, however, arise out of the instnictions under which the case was submitted to the jury; and these instructions, it will’readily appear, are intended to follow the law,.as stated by this court, in the case of Johnson vs. Johnson, 30 Mo., 72.
The facts in the present case, it is true, are materially different from the facts in the case of Johnson vs. Johnson; but so far as the existence of a marriage is concerned, the evidence in this case was greatly stronger than in the other. There was no evidence of the marriage of Col. Johnson and the daughter of Keokuk, but cohabitation and the birth of three children. But if the testimony of Baptiste Peoria is to ,be credited (and of that the jury were to judge) there wa-s not simply a cohabitation between Grilliss and Kahketoqna, but probably quite as formal a marriage as was customary among the Indians. A messenger or interpreter was sent by Grilliss to the parents, who lived some sixty or seventy miles
. This was, undoubtedly, strong evidence of an Indian marriage, in which all the witnesses agree no ceremony was required, religious or otherwise, and in which the main feature is the consent of the parents of the proposed wife, and their acceptance of the presents -offered.
But It is insisted that this marriage was of no validity, by the laws of Missouri, and that in. 1829 or 1830, the' Piankeshaw Indians were citizens of this State, and subject to outlaws. It seems from the testimony, that the Piankesbaws and Weas and Delawares and Shawnees were removed from Missouri, anterior to the alleged marriage; hut that Láharsh, who was a Piankeshaw Chief, remained in the neighborhood of Cowskin Creek, perhaps for the purpose of hunting.
The Constitution of the United States, and the statutes passed in pursuance thereof, undoubtedly recognized the Indian tribes as a peculiar people, Laving relations to the government totally different from citizens of the States. Although located within the State lines, yet so long as their tribal customs are adhered to, and the Federal Government manages their affairs by agents, they are not regarded'as subject to the State laws, so far at least, as marriage, inheritance, etc. are concerned. The cases of Morgan vs. McGhee, (5 Humph., 13,) and Wall vs. Williamson, (11 Ala., 826,) estab* lish this proposition. Indeed the Constitution of the United States especially authorizes Congress to regulate commerce with Indian tribes, as it does with foreign nations. The customs and laws of the Indians, then, prevailed -among the remnants of tribes located here in 1829 and 1830, and would com
The first instruction is particularly objected to. That instruction directed tlie jury, if Gilliss, Kahketoqua and Nancy are all dead, to give every reasonable presumption in favor of the legitimacy of Nancy, not necessarily excluded by the evidence. This doctrine is asserted by the court in Johnson vs. Johnson, and supported by the authorities there cited. The .jury had a right to be instructed on this point. The legitimacy of Nancy is a material point in this case, and as she was dead, and her mother and reputed father, it was necessary to' tell the jury what the presumption of the law was.
It is useless to examine the instructions in detail. They are manifestly a mere repetition of positions which the court adopted in Johnson vs. Johnson, and the only question is, whether we will review and overturn the principles of that case.
We have no disposition to do so and therefore affirm the judgment j