253 P. 1014 | Okla. | 1926
Misey Grayson, a duly enrolled Creek freedman, who had received her allotment, died on July 13, 1917, leaving Wesley Goff, husband, and Ellis Clifford Goff, minor son, as her heirs at law. Her husband, Wesley Goff, did not appear on the Creek rolls. The latter commenced his action in ejectment against Ellis Clifford Goff, a minor, for possession of an undivided one-half interest in the allotment of the decedent. Among the several defenses pleaded by Ellis Clifford Goff was one to the effect that the entire allotment was distributed to him in an administration proceeding of the estate of the decedent, in the way and manner provided by probate procedure; that Wesley Goff was an interested party in the proceeding, and that he did not appeal from the order of distribution.
The trial of the cause resulted in judgment against the plaintiff, who has appealed the cause here. He assigns as error for reversal that the judgment is contrary to law.
The petition for the appointment of the administrator named Wesley Goff as one of the heirs of Misey Grayson. A petition styled, "Petition for share of estate and motion for orders" was filed in the administration cause on behalf of the minor, setting forth that he inherited the fee simple title in and to the allotment of the decedent, and prayed that the entire allotment be delivered *64 to him as the owner. The petition described the allotment. A date was fixed by the county court for a hearing on the petition. Notice of the hearing was served on Wesley Goff, who appeared by his attorney at the hearing had on June 17, 1918.
The order of the county court on the petition distributed the entire allotment, along with other personal property of the estate, to the minor son. Wesley Goff did not appeal from the order. It is likely that Wesley Goff concluded that he inherited no interest in his wife's allotment, under the rule applied in Thompson v. Cornelius,
A situation similar to that of the plaintiff in error in this case was presented to this court in the case of Teague et al. v. Smith et al.,
Plaintiff in error undertakes to avoid the effect of the decree distributing the allotment to the minor son, on the ground that the allotment was occupied by him as a homestead at the time of the death of his wife. Section 1224, C. O. S. 1921, provides that upon the death of either wife or husband, the survivor may continue to possess and occupy the whole homestead. This was a right which the plaintiff in error could assert or waive; the effect of the waiver on the rights of the minor son is not a question before us. The fact that the plaintiff in error treated the son as inheriting the fee-simple title did not affect the homestead right of the former, as provided for by section 1224, supra. Nor would plaintiff in error's right have been different if the minor son had inherited the fee-simple title. The probate proceedings do not disclose that the allotment was impressed with the status of a homestead at the time the administration proceedings were instituted. The plaintiff in error was represented at the hearing on the petition for distributing the property. Whether the property was impressed with the status of a homestead was a question involved in the hearing for distribution. No one was in a better position than the plaintiff in error to determine the matter of waiving, or asserting, his right to the homestead. If this property was then impressed with the status of homestead, and the husband desired to assert the right, he should have raised the question at the hearing, and if ruled against, appealed the cause. The rule adopted by this court in relation to matters concluded by judgment is that a judgment concludes all matters presented within the issue, in the trial of the cause, and those matters which might have been presented in support of any defense or claim. Board of County Com'rs of Kay County v. State of Kansas,
The judgment is affirmed.
By the Court: It is so ordered.
