104 S.W. 937 | Ct. App. Ind. Terr. | 1907
(after stating the facts as above). Without passing upon the question as to the sufficiency of the terms of the will to indicatfe the intention of the testator to convey her anticipated allotment to the devisee, we will pass to a consideration of the points argued in the briefs.
It is the law, and it is conceded, that, if at the time this will was executed and probated the chapter of Mansfield’s Digest of the Laws of Arkansas relating to wills was in force as to the Choctaw and Chickasaw Nations, then the will, not ■conforming to the provisions of that chapter, was not entitled to probate, and conveyed no estate. In the case of In re Guardianship of Maggie May Poff, 103 S. W. 765, in which the opinion was handed down by us at the last term of this court, but not yet jmblished, we held that from the date of the enactment of the Curtis bill (Act June 28, 1898, c. 517, 30 Stat. 495) to the enactment of the act of April 28, 1904, c. 1824, 33 Stat. 573, which latter act took from the Indian tribes all jurisdiction, the Chickasaw Nation and its courts had exclusive jurisdiction of all probate and guardianship matters as to Indians and their
The statute in force at the time of the execution of the-will and the death of the testator was the supplemental agreement, ratified by Act Cong. July 1, 1902, c. 1362, 32 Stat. 641, the twelfth and sixteenth sections of which are as follows: “Sec. 12. Rach member of said tribes shall, at the time of the-selection of his allotment designate as a homestead out of said allotment land equal in value to one hundred and sixty acres" of the average allottable lands of the Choctaw and Chickasaw Nations, as nearfy as may be, which shall be inalienable during-the lifetime of the allottee, not exceeding tweffiy ’ one 3'-ears from the date of the certificate of allotment, and separate certificate of allotment shall issue for said homestead.” “Sec.. 16. All lands allotted to members of said tribes, except** such land as is set aside to each for a homestead as herein provided, shall be alienable after issuance of patent as follows; one fourth in acreage in one 3rear; one fourth in acreage in two years, and the balance in five 3¡*ears; in each case from date of patent; provided, that such land shall not be alienable b3r the allottee or his heirs at any time before the expiration of the Choctaw and Chickasaw tribal government'for less than its appraised value.” As far as the provisions of section 12 are concerned, it is clear that the homestead cannot be alienated by the allottee until 21 years shall have elapsed, if he live that long. If he do not live that long, then, inasmuch as in that event it cannot be alienated until his death, it cannot be alienated at all by him before the expiration of the 21 3*ears; and therefore, if a will
We have been referred to the case of Vining vs Willis 40 Kan. 609, 20 Pac. 232, in which it is squarely held that title to land passing by will is not an alienation of the land in the sense of the Kansas Constitution, forbidding the alienation of a homestead without the joint-consent of the husband and wife, when that relation exists. "In that case the court undertakes to show that alienation does not mean the diversion of the title to realty from the line of descent, but says: “The word as used in the Constitution we think means a voluntary parting with or surrendering of some interest in the homestead; and a person never parts or surrenders anything by virtue of a will, but only by his subsequent death.” That is, if he should not die, he would not part with it. If he does die, he does not ¡Dart with it, because he is dead. And, if it be true that alienation as applied to real estate means only the passing of the title from the individual owner of the fee so that he personally surrenders some interest that would affect him in his lifetime, and not a diversion of the title from the line of inheritance and breaking up and altering the legal course of descent, then the position is tenable. But, if this is what is meant, we respectfully differ from that court. That decision, however, is based on a construction of the homestead clause of the Kansas Constitution, and it is held that within the meaning of that constitutional provision a devise of a'homestead is not an alienation; and this is all that is decided.
The homestead of Indian lands, as provided for by the statute of the United States, -is not the same as, and was not established for the purpose that controlled the Legislatures in the states generally in the establishment of ordinary homesteads. A “homestead,” as the word is usually used in the statute, is established to secure a home free from the debts of
Finding no error in the proceedings of the court below, the judgment is affirmed.