Thе sole question presented by this appeal is whether under the law of Oklahoma a husband who abandoned his lawful wife and contracted a bigamous marriage -with' another woman and thereafter lived and cohabited with her, may clаim a share in the deceased wife’s estate according to the law of descent and distribution. The facts are not in dispute.
Sallie Norton, a full-blood Cherokee Indian, was married to Fred Norton, a white man, on August 12, 1935, at which time she had a son, Oscar Chuwalooky, by a former marriage. Fred abandoned Sallie, and on January 10, 1937, without securing a divorce, entered into a marriage relationship by a statutory ceremony with another woman in the State of Arkansas, and never thereafter resumed his marriage relationship with Sallie. Sallie Norton died intestate on February 12, 1937, and included in her estate was a twenty-acre tract of restricted tax-exempt land located in Tulsa County, Oklahoma, and by reasоn of the restricted character of the land, no probate proceedings or judicial determination of heirship was had thereon. On November 6, 1937, the son, Oscar Chuwalooky, conveyed an undivided one-half interest in the land to Williаm Swiggett, and the deed was duly approved by the proper court in Oklahoma. On December 7, 1937, the surviving husband likewise conveyed to Swiggett an undivided one-half interest in the land. Swiggett died on April 8, 1940, and the lands descended to Matilda McCarty, apрellee here.
This suit was instituted in the District Court of Tulsa County by Matilda McCarty to quiet title to the lands and to judicially determine that the legal heirs of Sallie Norton were Fred Norton, surviving husband, and Oscar Chuwalooky, only child, and to adjudge that the deeds executed by these heirs transferred to Swiggett a good and legal title to the lands. The Superintendent of the Five Civilized Tribes was served with notice of the action in pursuance of Section 3 of the Act of April 12, 1926, 44 Stat. 239, 240, and the suit was thereaftеr duly removed to the United States District Court for the Northern District of Oklahoma.
The United States intervened in its own behalf and on behalf of its Indian ward, Oscar Chuwalooky, alleging in substance that since Fred Norton had abandoned Sallie and enterеd into a marriage relationship with another'woman by a statutory ceremony, he thereby terminated his marriage relationship with Sallie, and is therefore not entitled to a distributive share as a surviving spouse under the succession laws of Oklahoma; that Oscar Chuwalooky as
The trial court held that although Fred Norton had abandoned his lawful wife and entered into a pretended marriage relationship with another woman, he nevertheless remained her lawful husband and was therefore entitled to participate in the distribution of her estate in accordance with the applicable laws of the state- of Oklahoma. The court further found and concluded that Fred Norton and Oscar Chuwalooky, as surviving husband and child, were the sole and only heirs of Sallie Norton, and therefore entitled to participate in the estate equally; and by reason of their seрarate conveyances to Swiggett, the appellee is the owner of the full legal and equitable title to the lands.
On appeal, the United States contends in effect that by reason of the misconduct of Norton, he is estоpped from participating in the estate of his wife, whom he had long since abandoned for another woman, and with whom he maintained a marriage relationship.
Under Oklahoma law of descent and distribution, if any person die seized of any estate which is not limited by marriage contract or testamentary disposition, leaving a surviving spouse and one child, the estate must descend to the surviving spouse and one child in equal shares. 84 O.S.A. § 213. Fred Norton, not having been legally divorced from Sallie Norton, was her lawful husband at the time of her decease, although he had long - since abandoned her and entered into a pretended marriage with another woman. Copeland v. Copeland,
This identical question was squarely presented tо the Oklahoma Supreme Court in Cox v. Cox, supra, and the majority held that unless forbidden by statute, one spouse did not forfeit his or her statutory right to inherit from the deceased spouse although he or she may have abandoned the decеased spouse long before and entered into a pretended marriage relationship with another. The court said it had “no alternative except to follow the rules of descent or succession as prescribed by the legislative branch of the government,” citing with approval the case of Nolan v. Doss,
In the Darrough case, the claimant sought to inherit the estate of his stepdaughter who was the illegitimate child of his wife, on the grounds that he wаs next of kin to his deceased wife, whom he had admittedly abandoned and entered into a bigamous relationship with another. He claimed under the Oklahoma statute which provides that “if an illegitimate child who has not been acknowledged or adopted by his father, dies intestate, without lawful issue, his estate goes to his mother, or in case of her decease to her heirs at law.” 11,304, C.O.S. 1921, 84 O.S.A. § 216. The maternal grandmother claimed the estate under Subsection 6, 84 O.S.A. § 213, 11,301, C.O.S.1921, which provides that “if thе decedent leave no issue, nor husband, nor wife, and no father or mother, or brother, or sister, the estate must go to the next of kin * * The court held this section of the statute controlled the devolution of the decedent’s estate; thаt the statute (84 O.S.A. § 216) forbidding the putative father from inheriting the estate of an illegitimate child whom he had not acknowledged or adopted, had no application, and hence the grandmother, as next of kin to the illegitimate child, inherited the estate to the exclusion of the stepfather.
This construction of the statute was dis-positive of the question presented, but the court said [
In suppоrt of the application of the doctrine of estoppel, the court cited and quoted from James v. James,
We cаnnot bring ourselves to the supposition that the Supreme Court of Oklahoma intended to overrule a doctrine so clear-cut and emphatically established without notice or reference to the case which so clearly announced it. We conclude that the Cox case is yet applicable and controlling of our question, and the judgment is affirmed.