4 Indian Terr. 30 | Ct. App. Ind. Terr. | 1901
The appellee, in her brief, insists that the judgment of the court below should be affirmed because of the failure of appellant to make assignment of errors as required by the second subdivision of rule 10 of this court. The language of the rule is clear, and, if the assignment of error as originally printed in appellant’s brief could alone be looked to, appellee’s contention for an affirmance of the judgment should be complied with; but should not the appellee have moved the court, upon the filing of appellant’s brief, to affirm the judgment by reason of the failure of appellant to comply with said second subdivision of rule 10? In Railroad Co. vs Cutting, 15 C. C. A. 597, 68 Fed. 586, that practice was pursued by the appellees. No such motion was made, however, and now we find in appellant’s brief, in addition to the original printed specification of error, two other specifications, typewritten, and pasted in the brief, so that the specifications of error altogether, as now presented to this court, are as follows: “The court erred in rendering judgment in favor of appellee for one-half of the farm and ferry in controversy, and for one-half of the rents and profits thereof. The court erred in rendering judgment in favor of appellee for more than one-fourth of the property sued for, because the evidence in the case, under the law of descents and distributions of both the Cherokee law and the law of Arkansas in force in the Indian Territory, show that appellant inherited three-fourths of the property sued for, and appellee not more than one-fourth. Because the court erred in holding that the ferry franchise under which Moses Nivens, deceased, husband of appellant, held, was a part of the estate of
“Sec. 2522. When any person shall die, having title to any real estate of inheritance, or personal estate, not disposed of, nor otherwise limited by marriage settlement, and shall be intestate as to such estate, it shall descend and be distributed in parcenary, to his kindred, male and female, subject to the payment of his debts and the widow’s dower, in the following manner: First, to children, or their descendants, in equal parts. Second, if there be no children, then to the father, then to the mother; if no mother, then to the brothers and sisters, or their descendants, in equal parts.”
Section 2528, Mansf. Dig. (section 1827, Ind. T. St. 1899), is as follows: “Sec. 2528. If there be no children, or their descendants, father, mother, nor their descendants, or any paternal or maternal kindred capable of inheriting, the whole shall go to the wife or husband of the intestate. If there be no such wife or husband, then the estate shall go to the state.”
Sections 2571, 2591, Mansf. Dig. (sections 1859, 1879, Ind. T. St. 1899),' are as follows:
“Sec. 2571. A widow shall be endowed of the third part of all the lands whereof her husband was seized of an estate of in*36 heritance at any time during the marriage, unless the same shall have been relinquished in legal form.”
“Sec. 2591. A widow shall be entitled, as part of her dower, absolutely .and in her own right, to one-third part of the personal estate, including cash on hand, bonds, bills, notes, book accounts and evidences of debt whereof the husband died seized or possessed.”
It thus appears that under the law of descents and distributions of Arkansas the only interest that the plaintiff, the appellee herein, could recover, would be a one-third interest of the personal estate of her husband, Jeff Nivens, and her dower interest in one-third of his real estate. The appellant, the mother of Jeff Nivens, inherited his estate subject to the appellee’s, the wife’s, dower. We deem it unnecessary to consider other questions discussed by the briefs of counsel. We are of the opinion that the case should be reversed and remanded, and it is so ordered.