*1 143 opposite party 627; to show v. Kiser (C.C.A.4th) 626, the the F.(2d) II. E. by parol the real nature of the consid- Wolfe Const. Co. v. Fersner Cline, supra, Koogle But, (C.C.A.4th) eration received. 58 F.(2d) irrespec 27. this, pages 413-415 of tive of note we think that the conten L.R.A.(N.S.); If, Columbia Nat. Bank tion is by failing without merit. 890; Baldwin, Sil- 64 Neb. 90 N.W. disclose that it security had obtained Potter, N.J.Eq. 22 A. vers v. one of put the claims forward for 584; Brown, 46 Welch v. Colo. indemnity insurance, collection of credit P. 296. company shirt in collecting succeeded more justly than was pol due under the The consideration contention that icy, this was matter complaint by executory expressed in the is instruments the credit company, insurance not There cannot be sustained. contractual person who given security. had company promise no the shirt will that guaranty of the bankrupt account of the merchandise in consideration of deliver security given assignment, the execution of the note and might possibly that account inure to has been but a recital that merchandise the benefit of the credit insurance com receipt acknowledging its delivered and a pany; but we know of principle delivery. equity upon law or of which in the nothing And there is likewise made company credit insurance parol' contention that evidence should could be held to inure to the benefit of of frauds be excluded under statute person given who had security. promise tending to establish a to an- stated, For the reasons the decree for the debt of another. writ- swer pealed from will be affirmed. necessary satisfy ing was statute Affirmed. note, promissory contained was the instrument in which bankrupt corporation was the debt promised. That the consideration of the expressed promise truly -was there- not promise render in did not void un- statute, proper der it but was by parol. such true consideration show 664; GLOBE INDEMNITY Recovery by 25 R.C.L. 385. CO. v. BRUCE et al.* C.J. company upon promis- was shirt BRUCE et al. GLOBE INDEMNITY CO. sory assignment note and the written se- Nos. same, curing upon parol not guaranty bankrupt. insured of the debt of the Appeals, Circuit Court Tenth Circuit of that Evidence was admitted for Dec. purpose showing the true considera- promise, the written tion of not as a recovery in itself. basis question, As to the third it should appel be observed contention of company lants that the shirt should be required credit on the note of in $2,279.45 the sum sured received from a credit company insurance pleadings raised in the and was not passed upon by the court below. very settled that exception well point al cases can a not brought passed attention of below upon by court be raised ap Co., peal. Blair v. Oesterlein Mach. U.S. S.Ct. 72 L.Ed. States, Duignan v. United 274 U.S. 47 S.Ct. Fruit Express Co. v. Growers’ Plate Ice Co. (C.C.A.4th) 59 Kimble
[*] Certiorari denied S. Ct. L. E d. —.
láá the will of Maude annexed of L. deceased wife C. Bruce
and mother of the minors above named.’ duly Maude Bruce was a enrolled *3 allotted Tribe. member of the She degree was of than less one-half Indian compe- possessed blood and a certificate tency many years prior death. for to her person. Bruce is a white The minors are degree less than one-half Indian blood. On Bruce October Maude made her last will testament under the pay- terms of which she ment her just of all debts and funeral expenses, her and devised one-third estate husband, Bruce, to her Charles re- children, mainder to her four share and share alike. February Bruce Maude died on duly approved by Thereafter her will was May on duly 1925 it was admitted to Osage county, court of Okla- July homa. On Patton pointed administrator, with will an- nexed. principal, Patton as Globe Company surety, duly executed an penal $10,- bond ministrator’s sum of 000, conditioned for the faithful execution according of the duties of his law. Patton as administrator received from Superintendent Indian Agency, $31,701.83,which had accumulated Osage headright to the credit of the Bruce her Maude after death. Under orders of the court and approval with the Agency, Patton, administrator, made dis- bursements these funds as follows: Pawhuska, Barney, Ralph A. Okl. Old., Holcombe, Pawhuska, (M. L. of of payment allowances, family In Tex., Lohman, Houston, were Clarence guardian To the of Charles briefs), Indemnity on the for Globe Co. Neal'Bruce............... 3830.00 $ guardian To Robert Tulsa, Conyers, (H. Okl. R. H. W. Bruce .................... 3830.61 Old., Duncan, Tulsa, brief), on for guardian of To the Marie Bruce Robert C. and others. Bowman ................. 3732.50 PHILLIPS, McDERMOTT, Before guardian of Virgie To the BRATTON, Judges. Circuit Bowman ................. 3612.50 illness In of last PHILLIPS, Judge. Circuit expenses of Maude funeral Bruce, This is an action C. L. Bruce 2514.55 .................... general dividually payment and as next friend for his minor In claims... 10090.00 children, Robert Bruce and of insurance and tax- C. Charles Neal In step-children, minor es ....................... Marie 564.83 fees, Bowman, Virgie payment of Executor’s LaSarge Bowman fees, Indemnity attorney’s premi- Company, bond Globe ums, costs, surety administrator’s bond of and other A. Patton, former Wade administration 3224.62 administrator with His estate is Bruce filed with insolvent and no September administra- On appointed tor protest has been Interior therefor. Secretary of the a of the objection use of The trial court held the funds accru- of the head- to the credit which accrued ing to of the decedent after her death after right of Maude Bruce quarter died, in which she descended any of the claims purpose paying payable directly to the heirs of March On or debts of decedent. the decedent and were not assets of her Superintendent of 1927, Bruce wrote the to administration. to with- that he desired Osage Agency gave He credit for the disbursements objection. protest and draw such family allowance, expenses. the last filed illness and funeral Pie July Bruce- On *4 found the petition for determina- that minors were entitled to re- county court his $4,452.57, any recovery of the cover distribution denied tion of the heirs and a administrator,' to Patton, Bruce for the filed ob- reason that he had con- as estate. 21, 1926, application sented to September the in jections the funds thereto. On payment denying of claims of county entered an order creditors. He held the court Company estopped the petition. Globe was to assert the by that the funds received Patton as ad- the appealed from this order to Bruce ministrator were not assets of the estate. county. The Dis- District Court order, presented, question The broad the insofar as is wheth- trict Court reversed county heirship, acquired er jurisdiction the court determination it denied a quarterly payments the surviving husband and four that judged the accrued the credit of the headright the at law of Maude of Maude children to be Bruce after her death. the order insofar as and affirmed the estate. distribution of it denied a Company, purposes The Globe county of this case concedes that the court 4, 1929, resigned September Patton On applying erred in the accruals this head- administrator, September general obligations. to the January report. his final On filed proposition It stands the that the pe- 17, 1930, At hearing was had thereon. headright riod during and its accruals the guardian the for hearing Bruce and such such minors ju- by of administration were within the present person in court, county any risdiction of the attorneys. hearing respective At the their jurisdiction in the errors exercise that for minors guardian the the Bruce and appeal. plain- must be corrected on tiffs, The by the made objected to each of hand, on the other concede that the the to creditors of estate the administrator county jurisdiction moneys court has over accumu- ground that the received on the headright during to the lations adminis- by were not liable for the administrator purpose paying legacies, county tration for the court of creditors. The claims $867.31, jurisdiction the in the sum of over accumulations surcharged Patton dies, quarter in which approved report. during the a decedent the Bruce and otherwise purpose paying for certain appeal from The the debts. It did not such order. 8, 1931, adjudicated (Mudd Perry April been appealed. the has also guardian On 85) county that the guardian’s ap- (C.C.A.8) the Court dismissed District - jurisdiction prosecute. prop- court has erty over all of the peal for failure Osage to determine of an “who were Patton, resignation After the C. T. to the rightful claimants appointed administrator Evertson ceased allottees But, Indian Tribe.” with the will annexed. Patton the assert, plaintiffs jurisdiction is his hands to Evert- balance $302.22 purposes. to these three limited 1931,- filed in son. On March Evertson court, county application accept question appears precise- It thus Company, ly county sum of is narrow one: Does the the Globe full settlement stated $867 liability. county jurisdiction headright its court have over the during court authorized settlement. The and accumulations administration law as to the Company made to certain rules Globe Evert- son, administrator, jurisdiction, executed to proper the Globe exercise Company general a. only release which was does it have a over so proved by county court. Patton died much of accumulations prior necessary pay legacies commencement of this is action. as certain debts, prac- legacies sufficient to for apparent at once that ? It is debts precise anticipate rule is that contended court can amount workable ticable and portion Company. the coun- by bring If which a of a will for the Globe jurisdic- upon judicial of its ty the exercise sale. errs in court appeal, lion, subject to its orders are Furthermore, the rule contended time, rights relatively short in a cases, Company just. Globe these definitely And parties established. can administrators received' sent April Act of section 3 of the Secretary of them tlie are government 37 Stat. officers pajd strictly them out with accordance improp- guard given power an the instructions of the of the lit- power court, exercise er terior and the orders of the Under respect 'po estates. require administrator or his bonds- plaintiffs, the contended rule correctness of circumstances, marl) under such thereafter rulings personal expense, t0 cnrich heirs court, any be contested least, court can say grossly inequitable, to statute of time at limitations, answer found our must be Nevertheless result with a Cogress relating to the Acts periods rights indefinite unsettled for are pertinent Indians. *5 Furthermore, if, be must often as of time. or set of such acts are stated forth necessary case, sell a it to the subjoined note.1 debts, or legacies purpose paying of for the and segregated just so The trust funds impracticable to sell quite the individual members the credited to of a sum as will return the much of the should interest and that draw Stat. 539. of June 1 Act paid quarter- act, “be By should interest thereon such the 1 and 2 of sections ly for, thereto.” provided to the members entitled and tribe was roll of the royalty 2,229 provided enrolled members re- that the each of the further equal gas, of oil, share the and other mineral entitled to ceived from declared provi- funds”; leases, tribal sale of town lots and tribal land and from the reservations, grazing to each an allotment made for and from sion was certain placed acres of 160 of of a homestead should “to the credit member surplus leases be * * * acres. of about 500 tribe” and allotments members of the the provides of that members “distributed to the of such act individual Section 3 Osage Osage according to roll said * * tribe the are the minerals “reserved * years twenty-five period same at in the manner the of tribe for a eighth day April, of inter- of are made time that after the from and moneys six”; min- held in for the and that est other trust nineteen hundred Osages by the the tribe United States.” leases shall be made eral through provides; the tribal council its of Section 5 such act Secretary expiration proval period of the of the “That at the royalties twenty-five years I’resi- be determined the to of from and after the day January, dent of the United States. first of hundred nineteen provides interests, seven, lands, act all 4 of such that mineral Section the Osage moneys due, provided Tribe, moneys, all funds of the herein for and held moneys may or and all that become duo in trust the the United States shall be may found to be the tribe shall he due to absolute of individual the rnem- tribe, Osage according in held trust United States hers of the to * * twenty-five years heirs, period *, of from and roll their as herein January 1, except provided, in after such and deeds to said lands shall he heirs, provided. members, or act to said their issued * * * moneys provided said shall be distrib- It is further all the funds members, Osage Indians, moneys uted to their said heirs.” Tribe all provides: tribe, due or found to be due the act and all such Section lands, moneys, received from “That and mineral the sale their Kansas, provided for, segregated interests, lands in should be herein practicable January after tribe soon as ceased member the. legal placed heirs, “and to the credit of his or her descend to accord- individ- * * * Territory ing ual Okla- members tribe to the laws on a pro among” homa, in basis of a rata division or of which res- said State * * * may incovporat- “as hereinafter members shown roll ervation ** * membership, ed, except where decedent leaves their wife, provided,” issue, hereinafter husband nor heirs as that such nor to re- Tribe in 1907. ests at the end period, dur- ing ceive the the mineral inter- period trust funds and participate dis- moneys, lands, mineral ease said Section of3 removed restric- act go surplus terests mother father must tions alienation of both equally.” and homestead all adult allotments of provides: Section “That the lands thereof In- of less than one-half provided herein for are dian blood. benefit of set aside the sole use and Section 4 of such act tribe en- the individual members Interior should cause thereto, heirs, paid or to their as here- titled “to be of each fiscal the end provided.” quarter to each adult member having Tribe of com- certificate April Act of 37 Stat. 86. petency pro share, his or her rata either provides: of such act Section 3 as a member of tribe or heir of a de- * * * “That the member, of the on trust ceased interest * * * allottees of the Tribe funds, the bonus sale received probate matters, shall, royalties leases, received dur- courts of ing previous quarter, fiscal and so the State Oklahoma.” long as the income is sufficient 6 of such act the adult members of said tribe not hav- partition of land of deceased al- ing $1,000 competency a certificate of lottees; proceeds of the sale that the incompetent except where adult competent paid belonging to shall be legal guardians, members have in which directly to them without the intervention incompetents case the income of such an administrator. legal guardians.” shall be to their provides: of7 such act April 12, 1924, Act of 43-Stat. 94. “That the allotted to members lands *6 any Osage provided shall not in manner -the tribe This act vest- taken, encumbered, person by or whatsoever be sold ed not an Indian blood satisfy obliga- any might approval or debt to or secure be with sold the of the prior Secretary the or to incurred tion contracted of Interior. competency, of or of a certificate issuance February Act of 43 Stat. alienation; on of restrictions removal 25 U.S.O.A. note. § Osage or funds of the nor shall lands (25 Section of such act U.S.O.A. § any subject claim be to tribal members provides; note) prior grant arising to the same Secretary “That the of the Interior competency. of That of a certificate paid each, shall cause to be at-tbe end of Osage moneys from inherited al- lands or quarter fiscal to each adult member of subject to or taken shall be lottees- Osage the Tribe of Indians Oklahoma any in- of the or sold to secure having competency, a certificate of his by prior such to incurred heir debtedness pro share, or her rata either as mem- moneys and are turn- lands the time such ber of the tribe or heir or of a devisee Provided, how- heirs: ed over to such member, deceased of the interest on trust moneys ever, be lia- shall that inherited funds, the bonus received from the sale expenses expenses of funeral ble for and royalties gas leases, oil of or the there- Osage allottees, of deceased to last illness be any moneys from and Ini other due such paid upon order court of of the during quarter, received dian each fiscal Osage County, Oklahoma.” State of prior including all received any provides 8 of such act Section passage remaining of this Act un- and Osage Tribe, member of adult the not * * * paid; paid shall cause to be may mentally incompetent any dispose “of education, the maintenance and to estate, real, personal, or all of his or parents legal guard- either of one the or including funds, mixed, trust from which actually having personally charge, ians restrictions as to alienation have not been unenrolled, enrolled or minor member un- removed, by will, the in accordance with twenty-one years age, der of and above Oklahoma”; of but laws of the State years eighteen $1,000 quarterly age, of probate, will shall not be admitted -to such minors, out of the income of each of said approved unless or be before or valid and out of the income of minors under by the after the death of testator the eighteen years quarterly.” age, of $500 Secretary of the Interior. (25 of such Section 3 act § U.S.O.A. Act of March Stat. 1249. note) provides that lands devised to 1) (sectipn This act the act members of or amended one-half more Indian 28, 1906, so of June as to extend or the blood members who do not have cer- competency of reservation the minerals to of the tribe tificates ed lands inherit- b,e April 7, by to such shall members inalienable funds, Osage head- royalties est is an aris- of the bonuses tribntion Quarles (C.C.A. right. v. Dennison the inter- See estates and the mineral ing Secretary pay except approval terior shall administrators of “property of of executors of such of and that Interior Osage having Osage Indians a sufficient amount certificates Indians money pay purchased all competency law- out such estates to as hereinbefore subject lien ful indebtedness costs not be set forth shall him; by approved except judgment any debt, claim, administration when or belonging alienation, and, heirs out of the taxes, shares without or to, Secretary devisees, he shall approval or referred In- above of the pay heirs of such costs terior.” including devisees, attorney fees, (25 or when § act U.S.C.A. 4 of such by approved him, in the determination note) of cer- for revocation Upon competency or contest wills. of a member tificates any Osage just existing Indian less than death the time that all debts upon paid or one-half of Indian blood “shall revocation he of such * * * Secretary Interior, death of an Indian who has a out moneys, competency, member, addi- certificate of the income other and funds accrued be- tion to the income herein * * accruing provided to his *: Pro- credit for.” fore vided, (25 of such That settlement act § 2 of such U.S.C.A. any note) funds or provides: supervision or control Secre- Indians “All of restricted tary Interior on date of Indian blood of one-half or more approval Act, by'or bequeathed which have been of this ac- to them inherited or or devised to adult cruing inherited credit and which are sub- to their supervision one-half or minor heir or devisee of more ject as above blood who does Indian may, deemed to be for best when competency, paid and which Indians, certificate of such terest paid have been or delivered the Sec- of the estates of deceased ministrators retary the Interior to the adminis- heirs, direct to their shall be or de- trator or executor devisees, in the discretion Sec- such administrator exec- regulations livered retary under Secretary of the Interior utor promulgated to be him. The the benefit shall be of the Interior to administrators *7 supervision subject of the Sec- of of such deceased executors provided by retary as law.” Osage a of Indians sufficient amount mon- ey pay of said estates all lawful out 1 of such Section act extends the res- oil, of gas, indebtedness and costs and of the tribe coal ervation approved by administration, him, April when until or other minerals belonging royalties provides out of the shares to heirs that “all and bonuses arising belong or he shall devisees costs and therefrom shall to the devisees, Indians, such heirs of or and shall be dis- Tribe of attorneys’ cluding fees, approved when or of Tribe to members bursed by him, provided in assigns of or determination or their heirs as now of wills.” by contest law.” provides lands, further “the Act of March 45 Stat. properties moneys, or and other now February 2 of the act of Section held in trust or under the su- hereafter by of was amended section 4 this pervision of the States United Indians, for act follows: to read as of Tribe the members “Upon the death an Indian assigns thereof, or their heirs and of one-half or more Indian who blood subject continue such trust and su- competen- a does certificate January pervision until 1959.” moneys cy, Ms or her oth- property accruing made accrued and his act section 6 er February inap- 27, 1025, the Act credit and which have heretofore her subject supervision plicable allotted and unallotted been paid degree may by than to the of less one-half law administra- Indians provided Osage blood, or executor of such Indian lands tor any other Indian or direct to his heirs funds and held may devisees, or or Secretary trust for less than retained degree of Indian of the Interior discre- one-half blood should Secretary obligation debt tion of the un- not be liable a regulations promulgated by before issuance a der to be him: contracted certifi- Secretary competency. Provided, That of the In- cate 585; Taylor Tayrien (C. “lands, 10) moneys, F.(2d) inter- and mineral * * * 884, 885; re Irwin ests C.A.10) (2d) In F. shall descend to or her his legal heirs.” (C.C.A.10) F.(2d) 495. This thp.t section indicates a. present equitable lands, interest in the Taylor Taylor Tayrien, supra, moneys and mineral interests vested 892, we held (C.C.A.10) F.(2d) Jones members of the tribe and on the death .of headright was transferable a member descends to his heirs. pass therefore did not to his bankruptcy. Irwin, referee in This In Re su- view is further confirmed the- pra, _hea'dright we held April was transferable section 8 of the Act of by white, approval 1912 (37 88), with the of the Sec- provides Stat. which any retary tribe, of the Interior. adult member of the not mental- ly incompetent, may by dispose will that, held in the hands of the In- We estate, real, or all of personal or mixed dian, in the was con- interest including funds, from which restric- tingent regu- that it was to the tions have not been removed. This section latory Congress; control of and that provides that such wills shall not be ad- policy government of the to con- probate mitted to approved by until serve the of the In- hands Secretary of the Interior. It has been the protect improvi- dian to him from his own practice uniform Secretary Irwin, supra, dence. In re Interior since the enactment of this sec- page 497. approve wills, tion to proper, otherwise It will be noted under Act disposed headrights of members 34 Stat. while all tribal June of the tribe. The of the Interi- moneys due, funds and all or to become approved such will in the instant case. due to the tribe were to be held in trust practice This recognized that a member has- period, they the United States were to be a stated reversionary vested interest in the miner- segregated placed to the als and a vested interest in the trust funds- credit of the individual members of the may dispose which he will. paid tribe and interest thereon to such mem- quarterly; bers and that while the miner- April 3 of the Act of als were reserved to the tribe for a stated (37 86), Stat. “property” that the royalties period, were to be to the of deceased allottees shall in mat individual members of the tribe at the time ters and in the manner interest on other county courts of Oklahoma. paid; held in trust was and that at the end Property very compre- terma lands, period of the trust “the mineral inter- meaning. hensive judicially It has been * * * ests, moneys, held in trust fined as follows: by the United States” to “be the ab- “Property very is a term of sig broad solute of the individual members nification, embracing everything that has * * * tribe, according to the roll exchangeable *8 goes up value or to make a * * *, heirs, pro- or their as herein every man’s interest or estate wealth— vided.” 34 Stat. 5.§ regards which the law of sufficient value judicial recognition.” Samet v. opinion Farm We are of the that the United ers’ & Merchants’ National Bank (C.C.A.4) took the legal States title to the funds and trust, 247 F. 671. moneys in but that the ti beneficial tle to funds and vested ‘property’ “The term is said to be no- tribe; individual members of the that there generalissimum every- men and to include was reserved to the tribe an interest the minerals for a stated subject thing ownership, which is the period; and that corporeal incorporeal, tangible or in- reversionary interest in the minerals invisible, tangible, person- visible or real or vested in the members of the tribe to whom al; everything that has exchangeable surface, one’s, were allotted the all to the value, up goes or which to make paramount power Congress to deal with Wapsie or estate.” wealth P. & L. Co. v. property benefit the tribe Iowa, 996, City Tipton, 193 N.W. and its members. 643, 645. strengthened by This view is property a consid- generalissi- “And is nomen eration of 28, mum, section 6 of the Act every species and extends to of valu- June (34 545), interest, Stat. which-refers to right “the able and includes real lands, moneys, interests,” easements, personal property, mineral of a and fran- Osage tribe,” “member of incorporeal chises and hereditaments.”'
IKI Co., gress intended, R. must Corp. judicial v. Salem & L. R. a Boston & L. ** * Wheeler, 1, 35; quiry. Gray Scranton (Mass.) 45 L. S.Ct. U.S. “Moreover, jurisdiction where over a Ed. 126. new gen- is conferred on court of jurisdiction, 3, supra, the eral jurisdiction does not restrict conferred Section qual- by any to property meaning of word exercised it as such a court. Congress not ifying language. Had C.J. embrace property to intended the term “The (article Constitution of Oklahoma they reasonable to assume hcadright it is 13) probate upon jurisdiction confers § restricting language its have used would county courts of that the fol- state it em- signification. conclude We broad lowing language: “ headrights of deceased members braces county gen- ‘The court shall have the Tribe. * * * jurisdiction probate eral of a court. pro- * * County * in Oklahoma have courts It shall all transact business proof open receive to jurisdiction; bate pertaining per- the estates of deceased testaments, * * and to admit * * * wills and * last sons, including the dis- ” probate proof to revoke them tribution of the estates thereof.’ testamentary, thereof, grant letters provides: O.S. same, administration, revoke the and to “The executor or administrator is en- appraisers of deceased appoint of estates possession titled to the of all the real and compel persons, to executors adminis- personal decedent, estate of the and to re- accounts, to order to render trators sale of profits ceive the rents and of the real es- estates, property of to order the tate, except realty improvements estates, to order payment of debts due properly belonging thereon home- distribution of regulate all stead, personal property and such as is re- persons, and to make served law to the widow and children may necessary to the ex- orders decedent, or either of them until the powers conferred them. ercise of the estate is settled or delivered over order Okl.St. county heirs or devi- Lynn, ex rel. 266 U.S. v. U. S. Work sees.” the court 45 S.Ct. Construing this section the court said 3, supra, “expressly sub- said section Gentry’s Estate, in Re Okl. P. jects the local (2d) 159: Osages the estates of who are courts of such statute “Under ceased.” held generally it is administrator Perry (C.C.A.8) In Mucld v. possession of has the the real 85, 86, the court said: personal may well as the re- congressional act under observa- “The profits of the es- ceive all rents and real provided that the of the de- tion up is settled and de- tate until the estate In- allottees Tribe of ceased over to the heirs order of the livered matters, ‘shall, sub- dians probate court.” jurisdiction of the ject to the courts (37 86.) of the state Oklahoma.’ Stat. legal personal property title per who dies decedent testate vests “This was a devolution the Con- representative until it sonal is distributed authority upon judicial coun- gress of *9 accordance with the will.2 in ty judi- determine courts Oklahoma April 18, things, right- 7 the Act of 1912 cially, among other who were (37 88), that inherited mon- ful to the estate of al- Stat. claimants expenses eys for funeral Indian Tribe. It county expenses liable lottees illness of deceased more than mere selection of the last allottees, performance of ministerial under order of the court or executive duty. involved, county county. court of Con- changes p. 152, 1615, O.S.1931, 2 161; 11 R.C.L. The § Amer respect (Woerner rule in common law with ican Law Administration Ed.) p. 185; propterty. II, 630, House 3d testate See White § Vol. Brewster 605; Gage (C.C.A.2) Howard, Lumber 142 Okl. 30 Co. v. 280 Burnes v. Burnes 787; P. 327. (C.C.A.8) L37 F. Scruggs (C.O.Mo.) Scruggs v. 105 28, 29. F. 152 acquires ju- Clearly opinion court We are of the that Patton as moneys of deceased risdiction over the Osage administrator was authorized to receive the ordering quarterly payments the extent of allottees to which accrued to 'the payment expenses headright death, of funeral of Maude Bruce after her jurisdiction pay administration, it has last illness. Likewise the costs of to dis legacies headrights charged charge any over with valid debts to the competent members quarterly payments the last wills of adult which the could law fully applied, Tribe in order to direct the and to distribute the bal payment of legacies. ance in accordance with the her will. But contended that it is jurisdiction to receive dis- has placed The construction we on the have payments accruing quarterly tribute to the to, acts of Congress above adverted headright of a deceased allottee after accord rulings Departments with death, payments must be and that Treasury the Interior long and a heirs, directly lega- made to the devisees practice. Opinion ministrative See Solici- the decedent under section 4 of the tees of Act of 4 of the Department Interior, May 25, 1915, tor (34 544), 1906 Stat. section -29630; Opinion Comptroller D. of Treas- June (41 ofAct March 1921 Stat. ury, 11, 1916, Comp. 457; March Dec. 1250), and section 1 of the Act of Febru- Opinion Department Solicitor 1922. Such ary (25 note). U.S.C.A. May 25, § rulings were followed respect funds, with lands, to the estate of Maude Bruce. If the and mineral
interests are The construction of a statute a de Oklahoma, courts of it would partment of the government charged with arising seem its execution is entitled great weight jurisdic- therefrom would be to that and should not be overturned without co pendency during tion of the adminis- gent reasons.5 tration and until the settlement of the es- tate. With such rulings long contin it, practice ued before administrative personal property of a decedent Congress enacted section 2 of the Act of passes to the administrator or ex February 27, (25 note). 1925 U.S.C.A. 331§ administration, pending ecutor includes . It will be noted that this section dealt with income, increase, earnings, accretions and by, bequeathed restricted funds inherited accessions of and to such includ to Osage one-half or more ing those that arise after the" death of changed Indian blood and in no wise pending the decedent administration.3 practice existing respect the or to heirs After the of lawful debts it legatees of less than one-half Indian duty is the administrator make Congress blood. Had the settled change intended to distribution of the decedent’s practice particular except will, the manner pay directed inas respect by, to funds inherited or be legacies ment of intestacy or in case in queathed restricted Indians of prescribed by the manner law. one-half or more Osage Indian blood it is they reasonable to assume would man duty It was the of the administrator ifested that intention language. clear with the will annexed of Maude Bruce to administration, the costs of Bruce, Bruce, the funeral Maude Robert C. Charles expenses, illness, of last and Neal Virgie Marie Bowman and legacies for in the will. Bowman were all of less than one-half N.J.Eq. 506; Spen Merchant, re 291 Pa. A. Bliss v. Wingate Pool, 118; Harding cer, 25 Ill. 125 Va. 99 S.E. 5 A.L.R. Harding, Ky. 398, 152 S.W. Jackson, American Law of Administra 5 U. S. v. 280 U.S. (Woerner Ed.) II, p. tion Yol. 50 S.Ct. U. S. v. Ce *10 4 Swanberg Surety Co., Compañía, v. National 86 recedo Hermanos Y 209 U. 340, 768; 761, 337, 339, 821;
Mont. 283 P. McKenzie 532, S. S.Ct. 28 Jensen, 92, 757; 755, Warner, v. 212 Ala. 101 So. Land Federal Bank v. 292 U. Fletcher, 178, 53, 55, Bemis v. Mass. 146 N. S. S.Ct. L.Ed. 1471; City E. A.L.R. McGehee 91 A.L.R. of Tulsa v. South y. McGehee, 190 N.C. 130 S.E. Bell (C.C.A.10) western Tel. Co. 75. F. 116; Wright Menefee, (2d) 343; Taylor Tayrien 226 Ala. (C.C. McKallip’s Estate, A.10) (2d) So. In re 51 F. “Tq increase; augment. come not of To Bruce L. C. Osage blood. Indian increase; spring way growth profit. of arise or as a 2 of section Therefore blood. Indian increase, result; af- or to be added as February 27, in no wise of Act ” * * * or of Maude the estate fected will. under her the beneficiaries rights of by way Accruing arising in- means of qr crease, profit. growth Tt connotes con- 2, 1929 of March 4 of the Act tinuing growth, augmentation. increase de- of estates 1480), divided (45 Stat. (1) speaks of classes: into two It will be observed act Osage Indians ceased or moneys, one-half of accrued and of Indians funds Estates time at the of accruing do not to the credit the owner of Indian blood who more competency, headright, quarterly payments of of ac- have certificates not death of less Indians of (2) accruing estates of We owner. crued to such at the blood or who construing Indian than one-half see no words reason compe- of certificates quar- have accruing time of death tency. accrued referable terly payments. one-half of less than Bruce was Maude mineral funds and the Interest of her death the time competency, and at constantly Indian blood accruing to the royalties are tier es- of a certificate headrights. had of On credit of owners tate, therefore, class. in the second fell headright, certain of the of a death owner than were of less devisees royal- Iter funds and mineral interest on trust Therefore, with re- blood. one-half to his credit. The ties will have accrued estate, existing practice spect to her It accruing cannot refer to them. word must refer to those that arise 4 of the changed section in no wise after the of March authorized Act headright. We death of owner practice as to estates existing hold the word “accrued” refers to interest blood than one-half Indian Indians of less royalties arisen to the credit that have cer- the time of their death have or who at at the time of the owner competency. tificates word re- “accruing” his death royalties will fers to the interest and DeNoya Arrington, Old. arise the credit of his after court held that P.(2d) prior to death and the distribution his his estate. headright of a accruing to the quarter in Osage Indian after the died, decedent are assets which the Furthermore, other of section such decedent can be the estate Congress supra, indicate so intended. payment lawfully applied of claims respect to estates of Indians With creditors. more, degree Indian blood or of one-half competen do not certificates of who “accruing” held the word It further cy it “that only quar- supra, embraces in section pay to Interior shall executors of the estates of such deceased administrators and terly quarter in which payment for the dies. decedent amount of mon Osage Indians sufficient agree. holding we do not With latter ey such estates all lawful ind out of 4, supra, in will be noted that section It part provides: ebtedness6 costs of ad sup ministration.” pose It is unreasonable to any Osage Indian “Upon the death Congress did intend that Indian blood one-half less than be made should available to the who Osage Indian the death of an same extent for of costs of ad his competency, lias a certificate 6 of ministration and “lawful indebtedness” property accrued and other funds and than of less one- his credit accruing to half Indian blood or who the time or executor of livered to administrator competency. certificates of death have upon according to be administered his estate Congress pro failure of make similar the laws State Oklahoma.” of admin vision costs woI'd accrue defined Webster’s and lawful indebtedness es istration tates of the Dictionary class, as follows: International last indi- New mentioned general phrase Congress embrace claims tended As to whether estate, for the reason here- indebtedness” expenses referred “lawful express opinion. stated, inafter we funeral illness of the decedent or last *11 154 Locust, 662, 579, 698, 55 151 155 P. Okl. P. intended all Congress cates that pending court held that where an administra- accruing to such tor, accepts per- receives and funds as an paid to the administration should sonal ministrator, neither he nor the sureties therefore deem- representatives, and deny permitted his bond will that unnecessary. provision ed such But such funds of the estate. were assets accruing Moreover, after principle applica- of that case has no dies could the decedent quarter in which Company tion here. The Globe does costs of ad- lawfully applied ministration, quarterly payments assert the were not as- illness the last expenses of they sets of the estate. It were. asserts that decedent expenses of the funeral 'plaintiffs, very But the foundation as the and the under the will legacies action, quarterly allege for their them jurisdiction over would have court for those estate, payments were not assets purposes. not en- Patton as administrator was probate ju- court had We conclude They may titled to receive them. not in- headright of Maude risdiction over the surety estopped sist that the to assert payments accru- quarterly Bruce and the they a fact which affirm as the basis death, pending her
ing thereto after their cause of action. her es- distribution of administration tate. quarterly pay It follows if the ments were assets of the estate and were jurisdic had If the Probate Court administrator, lawfully paid to Patton as tion over the and the him disbursed in accordance pending the ad payments accruing thereto court, surety orders estate, its orders di ministration of liable; they is not if not assets payment of claims and the dis recting the improperly of the estate and were re of the estate are not tribution ceived and disbursed Patton as admin Kennedy, v. to collateral attack. Doran istrator, the bond does not extend to them 362, 615, 996; 35 237 U.S. S.Ct. surety is not liable. F.(2d) (C.C.A.10) Folk Monsell 71 v. judgment The is reversed and the cause question whether the head- Therefore the remanded for newa trial. quarterly payments, or either them, resorted to for the dis of charge could be BRATTON, general Judge (specially claims the es Circuit presented is not concurring). tate of Maude 4 express opinion thereon. we think the I sums which accrue to a after the death of an In- authority, weight Under pass by dian virtue of the di- act of 1906 liability of sureties on an administrator’s rectly subject only prop does or executor’s bond not extend to of last illness funeral and to erty which does not constitute assets of the discharge bequests. The act of 1912 vest- personal though repre even ju- ed the courts in Oklahoma with possession prop sentative has taken of such risdiction of so much of such funds as erty it and treated as assets of the estate. necessary representative personal cannot extend perhaps bequests. The courts were not liability surety by pos taking vested with over the balance property session of not an asset of the est it because was the decedent. ate.7 Instead, it was of the heirs. But Supreme ap department, Court of charged Oklahoma the administrative with the plied principle duty the same administering perti- bond of in Hughes acts, court clerk v. Board of nent construed Com them otherwise and . missioners, 410, 50 period twenty Okl. 150 P throughout years almost consistently to the bond of a Neer, approved payment sheriff v. of all of Jordon money 34 125 P. Okl. 1117. In Boudinot to executors and v. administra- 7 Nursery Ivey, Am.St.Rep. Commercial v. Ill. Co. N.E. (2d) 238, 239; County Term. 51 S.W. Bank Carcaba of Newton v. Amer (C.C.A.5) 795, 797; Bonding Co., v. McNair ican 141 Ga. 80 S.E. Surety Wages, (N.S.) 1089; National Co. v. 48 Ga. Brad 50 L.R.A. App. 720, Watson, 173 S.E. Probate Court ford v. Fla. 62 So. Williams, Campbell 3S2, Bonding R.I. Co., A. American 554; People Petrie, 19 Ann.Cas. Ala. 55 So. *12 pay gen tors, used which was some question is not of estates. eral debts repeated deci doubt, under free from adminis construction which sions the up places consistently department trative interpretation over on doubtful statute of persuasive period strongly of time is long it is unless will not be overthrown Jackson, v. wrong. clearlv United States U.S. 50 S.Ct. Taylor F.(2d) Tayrien (C.C.A.) 51 (C.C.A.) 67 F. United States v. La Motte (2d) City of Tulsa Southwestern (C.C.A.) Bell Tel. Co. 343. I ground. reversal on that concur al. TAPP et
STUART et al. v. STUART.
TAPP 1261, 1262. Nos. Appeals, Tenth Circuit. Court Circuit Pawhuska, Ralph Barney, A. Okl. Dec. Pawhuska, Holcombe, Okl., Clar- (M. L. Houston, Tex., Lohman, Of and Rob- ence Pawhuska, Okl., Stuart, of on the ert briefs), for Stuart. Goldesberry, Tulsa, M. Okl. John Reed, (Gerald George Klein W. B. Tulsa, Old., briefs),
Jr., both of Tapp M. E. and others. PHILLIPS, McDERMOTT, Before BRATTON, Judges. Circuit PHILLIPS, Judge. Circuit equity brought by suit in Mil- This son, Tapp, surviving ford E. Charles Tapp, surviving Mary Belle husband LI. F. Tapp against Charles Stuart an ac- spe- counting moneys paid him administrator cial administrator Mary Tapp. Belle will annexed Tapp enrolled Mary was an Belle Indian blood and of one-sixteenth allottee had competency. certificate of Charles Milford Tapp not of Indian blood. H. one-thirty- Tapp Osage Indian of is an E. Mary Tapp blood. Belle second Thereafter, testate, died June special appointed administra- Stuart her estate tor of Oklahoma, duly County, quali- such. fied