151 P. 629 | Okla. | 1915
Lead Opinion
On the above facts, it is seen that the defendant claims title from two sources: (1) Under the will of Lotka to his wife, Supsy, her deed to Fears, and Fears' deed to him. (2) Under the deed from the plaintiff and her husband to Fears, and Fears' deed to the defendant.
The first question, therefore, is whether a will executed by an Indian of his allotment, at a time when he had no power to make a deed therefor, is validated by section 23 of the act of April 26, 1906 (34 Stat. 137, Federal Statutes Annotated, Supplement 1909, p. 200), when the Indian dies after the passage of this act. This question came before this court inNesbit v. Gragg,
"The very interesting questions of whether or not Arthur Nesbit has rights as an heir under the special act of the Chickasaw Nation and the facts of the case, and whether the demise of the homestead allotment is valid, where the will was executed before, but the testator died after, the enactment of the law authorizing the devise, are open ones, and no opinion is expressed."
The question thus left open, because not necessary to the decision of Nesbit v. Gragg, supra, is now squarely before us. It cannot be doubted, in view of the great weight of authority, that where a testator is incapacitated *391 by law from making a will, but such incapacity is afterwards removed, a will made during the incapacity must be republished after the removal of the restriction, to become a valid will. Such would be the case under our statute, if a will was made by an infant under the statutory age, and the infant should die after becoming of age. In such a case, unless there was a republication, the will would be void. Schouler on Wills (3d Ed.) section 41. But that is not the case presented here. Lotka was under no disability to make a will, and the will he did make was perfectly valid as a will; but he had no power at the time the will was executed to devise his allotment. In other words, the restriction was not on his power to make the will, but applied only to his right to pass title to this particular land by will. That he had no right to do so prior to the act of April 26, 1906, is settled. See Hayes v. Barringer, 7 Ind. T. 697, 104 S.W. 937, affirmed on error in 168 Fed. 221, 93 C. C. A. 507; Bledsoe, Indian Lands Laws (2d Ed.) section 60.
The question, therefore, turns upon the proper construction of section 23 of the act of April 26, 1906, which was in force at the time of Lotka's death. This statute provides:
"Every person of lawful age and sound mind may by last will and testament devise and bequeath all of his estate, real and personal, and all interest therein: Provided, that no will of a full-blood Indian devising real estate shall be valid, if such last will and testament disinherits the parent, wife, spouse, or children of such full-blood Indian, unless acknowledged before and approved by the judge of the United States Court for the Indian Territory, or a United States commissioner, or a judge of the county court of the State of Oklahoma." *392
This statute removes the disability to dispose by will of the land in question, and we think it must be construed in the same manner as if this land were after-acquired property. In the one case, the land is acquired after the execution of the will, but before death; in the other, the right to dispose of the land is acquired after the will is executed, but before death. In our opinion, the analogy between the two conditions is complete, and the same rules must govern.
Under the Wills Act of 32 Henry VIII, it was well settled that after-acquired lands did not pass, while after-acquired personal property did. In discussing the question, the Supreme Court of the United States say, in Hardenbergh v. Ray,
"In support of the first proposition, it is urged, on behalf of the plaintiff in error, that the common law, with its limitations and restrictions upon testamentary power in respect to real estate, was in force in the State of Oregon at the date of the execution of the will, and up to the death of the testator. Without reviewing the authorities, it is well settled that by the common law lands were not devisable, except in particular places where custom authorized it. This disability of the common law was partially removed by the statute of 32 Henry VIII, c. 1, which authorized persons having title to land to dispose thereof by will, and was construed as restricting the right of devising lands to such an interest only as the testator had at the time of the execution of the will. Under this statute real estate, subsequently acquired, could not pass by devise; in other words, under the statute of 32 Henry VIII the will as to lands spoke from the date of its execution. So that a general devise of all the testator's estate would comprehend and include all the personalty to which he was entitled at the time of his death, but would not embrace after-acquired land, though *393 such might be the expressed intention of the testator. The reason given for the distinction between real and personal estate was that a devise of land was regarded in the same light as a conveyance, and, as a conveyance at common law would not vest for want of seisin, it was therefore held to be operative only on such real estate as the testator might have at the time of the making of the will; that is to say, that a devise was in the nature of a conveyance or appointment of real estate then owned, to take effect at a future date, and could not therefore operate on future acquisitions. While this strict and arbitrary rule of the common law has been modified by the statutes of most, if not all, of the states of the Union, it is contended for the plaintiff in error that the rights of the parties in the present case are controlled by it, for the reason that the Legislature of Oregon did not confer by statute testamentary power to dispose of after-acquired real property until February, 1891."
In that case the statute of Oregon, which was taken from Missouri, provided that any person may by last will devise all of his estate, real, personal, and mixed. This statute was construed by the Supreme Court of Missouri in Liggat v. Hart,
23 Mo. 127, to authorize the devising of after-acquired property, and this construction was approved by the Supreme Court of the United States in Hardenbergh v. Ray,
"It may, therefore, be laid down as a general proposition that where the testator makes a general devise of his real estate, especially by residuary clause, he will be considered as meaning to dispose of such property to the full extent of his capacity, and that such a devise will carry, not only the property held by him at the execution of the will, but also real estate subsequently acquired, of which he may be seised and possessed at the date of his death, provided there is testamentary power to make such *394 disposition. 1 Jarman on Wills (5th Ed.) 326, and other authorities cited."
The language of the Missouri statute above set out is practically the same as that of section 23 of the act of April 26, 1906, above set out. The Missouri statute, which was held to pass after-acquired property, is that any person may by last will devise all of his estate, real, personal, and mixed. The language of section 23 is that every person of lawful age and sound mind may by last will and testament devise and bequeath all of his estate, real and personal, and all property therein. We can see no difference in the meaning of the two statutes, and we are of opinion that the will of Lotka passed the title to the land to his devisee.
Section 32 of the act of June 25, 1910 (36 Stat, at Large, 863, c. 431; 1 Fed. Stat. Anno. Sup. 1912, p. 103), has no application to this case, because that statute only applies to cases where the Indian dies before the approval of the allotment deed, and the agreed statement of facts in this case does not give the date of the allotment deed.
It is contended by the plaintiff in error that, granting the will of Lotka to be sufficient to pass the title, yet the provisions of the Arkansas statute (Mansfield's Digest, c. 155, sec. 6500), govern, which provide:
"When any person shall make his last will and testament, and omit to name a child, if living, or the living representatives of such child born and living at the time of the execution of such will, every such person, so far as regards such child, shall be deemed to have died intestate," etc.
The argument is that as the plaintiff was the representative of Lah-me, the son of the testator, and was *395
born and living at the time of the execution of the will, and was not mentioned in the will, as to her Lotka died intestate, and that the devisee took only her dower right; and the case ofIn re Brown's Estate,
"That no will of a full-blood Indian devising real estate shall be valid, if such last will and testament disinherits the parent, wife, spouse or children of such full-blood Indian," etc.
The difference between this act and the Arkansas statute is plain. The Arkansas statute is: If the testator fails to name a child, if living, or the representative of such child born and living at the time of the execution of the will, the testator is deemed intestate as to such omitted person. The act of Congress is: That the Indian shall not disinherit his wife, parent, spouse or children, but no mention is made of the legal representative of children, nor is there any provision, as in the Arkansas statute, that the child or representative must be named in the will. The United States has full control of Indian affairs, and any law passed by Congress in regard to the devolution of Indian land supersedes any state law on the subject. See Collins Investment Co. v. Beard,
We are therefore of opinion that the will of Lotka passed to the devisee a title in fee to the lands in controversy, and that the defendant obtained the title from her. This makes it unnecessary to decide the question whether or not the deed of plaintiff required approval.
We therefore recommend that the judgment be affirmed.
By the Court: It is so ordered.
Turner Turner, for defendant in error.
Blanton Andrews, amici curiae.
Addendum
After a careful consideration of the former opinion rendered herein, aided by the oral arguments and additional briefs filed on the petition for rehearing, we are satisfied that our former opinion was sound, and that the petition for rehearing must be denied. It cannot be seriously doubted that, at the time this will was executed, the testator had capacity to make the will, but under the laws of the United States he could not devise this particular property at that time, but as to all other property he had full power to dispose of it by will, and before his death the law was changed, so as to allow the testator to dispose of this property also by will. *397
In our opinion the will speaks from the death of the testator, and where he has testamentary capacity when the will was made, and it clearly appears from the will that he intended to dispose of all of his property, as in this case, the will speaks from the death of the testator, and passes all of the property that he was capable of disposing of by will at the time of his death. At the time of the testator's death the laws of Arkansas relating to wills were in force in the Indian Territory, where the testator died. In Patty v. Goolsby,
"While by the common law a will was generally construed to speak from the death of the testator as to personalty, it was not so as to real estate. For real estate to pass by will it was requisite that the testator should be seised at the time of making the will, and continue so seised to the time of his death, and it seems this rule was independent of any intention to convey such after-acquired property expressed in the will. The reason assigned was that a will was nothing more than a mode of conveying a particular estate, and the testator could not convey property of which he was not seised. * * * Considering the great changes in the policy, as well as the formalities in alienating and assuring title to real estate from what they were when the English rule on this subject originated and prevailed, we cannot see, notwithstanding the common law has never been changed by any positive statute, any reason why a will should not speak from the death of the testator as to real as well as to personal estate, and we are therefore of the opinion, and so hold, that, the said intestate being seised and possessed of the said lands at the time of his death, they were included in his will and were conveyed thereby."
In Hamilton v. Flinn,
"It is conceded that if the will, in the language of the books, speaks from the death of the testatrix, it is valid, although inofficious and defective at its date. As a general rule, a will has been regarded in this state as speaking from the death of the testator. That the instrument was not only his will, but his last words, and, as such, operated, where the language of the bequest was general, upon the whole property of the testator, without regard to the senseless distinction between legacies and devises, or that the latter had been held as extending only to such lands as the testator had at the execution of the will. * * * The objection to bringing the will of Mrs. Flinn within the influence of the act of 1856 is, in substance, that this would give the act a retrospective operation, and, if so, it would conflict with the Constitution. To determine upon the soundness of this position it will be necessary to have clear ideas of the meaning of the retrospectiveness or retroactivity of a law, and this is defined with great precision and fullness in Society forPropagation of Gospel v. Wheeler, 2 Gall. 105 [Fed. Cas. No. 13156], by Mr. Justice Story, to the effect that a statute which takes away or impairs a vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect to transactions or considerations already past is to be deemed retrospective or retroactive. * * * The test, then, of retroactivity, is not whether a hope, expectancy, or a mere inchoate right, but whether a vested right 'to possess certain things according to the laws of the land,' * * * is impaired or defeated."
And it is also decided in Loveren v. Kamprey, 22 Foster (N.H.) 434, that a new law changing the operation *399 of a will is not retroactive, where the testator makes his will prior to the passage of the act, but dies thereafter. In this case it is also said:
"A will does not take effect, nor are there any rights acquired under it, until the death of the testator; and its construction is to depend upon the law as it then stands. A statute passed after the making of a will, but before the death of the testator, by which the common law is changed, will be operative upon the will. To give the statute such an effect is not to make it retrospective in its operation, since it affects no rights vested before its passage."
In Wilson v. Wilson,
"The sole question arising on this appeal is whether certain real estate acquired by Wm. T. Wilson after the execution of his will passed to his devisees, or descended to his heirs at law. * * * As the testator, in this case, executed his will in June, 1849, and died in June 1852, it follows that, according to the construction of the act of 1849, as established by this court, his after-acquired real estate must pass under the will, and not to the heirs at law. [Magruder v. Carroll]
In Cushing v. Aylwin, 12 Metc. (Mass.) 169, a will was executed prior to the passage of a statute allowing after-acquired lands to pass by will, and the testator died thereafter. In the opinion it is said:
"The question in this case is whether the title of Elizabeth Doane passed to the tenant by her last will and testament, or descended to her heirs at law. Her will was made prior to the Revised Statutes, and the land demanded was purchased by her afterwards. The demandants contend that Rev. Sts. c. 62, sec. 3, does not apply to *400 a will previously made. But we think there is no sufficient reason for this limited construction of the statute. The object of the statute was to obviate an inflexible rule of the existing law, which had been found to operate injuriously, by defeating, not infrequently, the intention of the testator, however clearly expressed; and there seems to be no good reason why the provision should not apply as well as to wills made before as to those made after the statute, when the will had not taken effect, before that time, by the death of the testator. That the Legislature had the constitutional power to enact such a law is not to be denied; and we think that such was their intention."
In Re Kopmeier,
"Appellant's insistence that the validity of the will must be tested by the law in force at the time of its execution is without merit. A will is ambulatory during the life of its maker. It is, in effect, reiterated as his testament at each moment of his life after its execution, including the last moment, and is governed by the law existing at the time when it takes effect, upon the testator's death. Dodge v. Williams,
The converse of the question under consideration was decided in Johnson v. Williams,
"Mrs. Johnson died leaving real estate not exceeding $5,000 in value, and not leaving issue surviving her. Under the statute in force at the time of her decease, her real estate descended to her husband, and she had no power to devise it away from him. Sears v. Sears,
This case seems to us directly in point. In that case, at the time of the making of the will, the wife had undisputed power to dispose of all of her property. Prior to her death the law was changed restricting this right. In the case at bar the right to will this land was restricted when the will was made, but these restrictions were removed prior to the death of the testator. It seems to us that the two cases are analogous.
We have considered the second ground in the petition for rehearing, that we were in error in holding that the rule provided by the act of April 26, 1906, cited in the original opinion, supersedes the Arkansas statute in this case. We have carefully considered this question, and are satisfied with our former conclusion.
We therefore recommend that the petition for rehearing be denied.
By the Court: It is so ordered. *402
