124 P. 319 | Okla. | 1912
On October 1, 1907, Fannie Curry, plaintiff in error, the widow of Thomas A. Curry, filed her complaint in equity in the United States Court for the Central District of Indian Territory, sitting at McAlester, against E. E. McDaniel and against Maria Atkins, the mother, and certain other persons, the first cousins, naming them, as the only heirs at law of said Curry, deceased, and also against the unknown heirs of said Curry. The object of the suit was to have dower set apart to her in certain lands (describing them) of which said Curry died seised and possessed on May 23, 1903, within the jurisdiction of the court. After the mother had died and thus passed out of the case, Cicero Curry, Allen Curry, George Curry, *20 Maria Harris, and Laura Joshua appeared and by leave of court answered and claimed to be also first cousins of Thomas A. Curry, and as such entitled to share in the estate. E. E. McDaniel filed a cross-bill in which he sought a partition of the property which he held in common with deceased. On the hearing, dower was assigned and the land partitioned in kind as prayed and, over objection of appellants, the widow and known heirs, the cause was thereafter, on motion of defendants, referred by the court to the master to ascertain and report to the court who were the heirs or next of kin to Thomas A. Curry, deceased, which he did, finding said Cicero Curry, Allen Curry, Maria Harris, and Laura Joshua also to be first cousins of the deceased as they alleged. After exception thereto as to this finding filed and overruled and judgment rendered and entered upon the report of the referee, which was approved, plaintiffs in error bring the case here.
They assign that the court erred in finding said parties to be first cousins of the deceased, which finding they say is against the weight of the evidence. This is the sole question involved. This report was merely advisory. Concerning the force to be given a report such as this, in Scroggy et al. v. Kelleyet al.,
"It is urged that it was error to refer the cause to a master over the objection of the defendants. Under the law as it existed in the Indian Territory prior to statehood, the court had the right to refer a cause to the master for the purpose of taking testimony or of stating an account (Mansf. Dig., secs. 5260 and 5263 [Ind. T. Ann. St. 1899, secs. 3465, 3468]) of its own motion and without request by the parties. But, if referred for any other purpose, the reference and report of the master did not relieve the court of the duty of weighing the evidence and passing on the whole case. 'It is not competent for a court of chancery of its own motion, or upon the request of one party, to abdicate its duty to determine by its own judgment the controversy presented and devolve that duty upon any of its officers. Henderson's Chancery Practice, sec. 152.' See, also,Kimberly v. Arms,
Being merely advisory, the finding of the referee approved by the chancellor that said defendants in error were born in lawful wedlock and were first cousins of the deceased will be sustained if not against the preponderance of the evidence.Horn et ux. v. Gibson,
After a careful review of the record on this point, the preponderance of the evidence discloses that prior to the Civil War there lived in Georgia a certain planter named Pleas Curry who was the owner of two slaves, Dempse and Fannie, who were married according to the custom of slaves (validated by subsequent legislation) and were the parents of Jabe and Maria, also slaves; that Jabe married a slave woman named Louisa to whom were *22
born in what is conceded to be lawful wedlock (or made such by subsequent legislation) Dora Curry (now Kelly), Charles Curry, Columbus Curry, Fannie Curry (now Rowe), Maria Curry (now Hawkins), Willie Curry, Hilliard Curry (now Hawkins), and Abram Curry, all of whom the master found and all concede to be first cousins of deceased, who was the only son and heir of Jabe's sister Maria who intermarried with a slave named Lee Adkins and died subsequent to the death of her father and mother, Dempse and Fannie; that, while Dempse was thus married and living with Fannie, there was also living on the Pleas Curry place another slave woman named Peggy Curry to whom said Dempse had born out of lawful wedlock Malinda and Racheal Curry, both of whom died subsequently to the death of Dempse and Peggy, the latter without issue, leaving as the sole heirs surviving of the former, her children Allen Curry, Cicero Curry, George Curry, Laura Joshua, and Maria Harris, defendants in error, whom the master also found to be the first cousins and next of kin of said Thomas Curry, as stated, but whom we find, from the great preponderance of the evidence to be not so, but who being born out of wedlock have no inheritable blood of the deceased and are not entitled to share in this estate. 19 Am. Eng. Ency. Law, 1169; Hall v. U.S.,
Reversed and remanded.
All the Justices concur.