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(209 P.) is void in that it disinherited the father of Investment Co., 221 U. S. 286, 31 Sup. Ct. the devisor, and, if the contention of counsel | 578, 55 L. Ed. 738; Parker v. Richard, 250, for the plaintiffs in error is sound, the de U. S. 235, 39 Sup. Ct. 442, 63 L. Ed. 954. cree of the probate court of Pontotoc coun-- In the case of Mike Blanset v. Oscar Cardty in admitting the will to probate is the in as guardian of Jesse Daylight, a minor, effective means of passing the title to the et al., in the opinion delivered by Mr. Juslands in question to the devisee, and not the tice McKenna, May 16, 1921, reported June will itself in violation of the provisions of 15, 1921, 256 U. S. 319, 41 Sup. Ct. 519, 65 the act of the Congress, providing the man. L. Ed. 950, the Supreme Court of the United ner by which such restricted lands may be states said: alienated. It is obvious that the county

"Our conclusion is the same as that of the court, in the exercise of its probate jurisdic

Court of Appeals, 'that it was the intention of tion in admitting a will to probate, has no

Congress that this class of Indians should have such jurisdiction or authority."

the right to dispose of property by will under In Brink v. Canfield, 78 Okl. 189, 192, 187 this act of Congress, free from restrictions on Pac. 223, 226, Justice Sharp speaking for the the part of the state as to the portions to be court says:

conveyed or as to the objects of the testator's "At the time Jack's suit was instituted, there

bounty, provided such wills are in accordance

with the regulations and meet the approval of was but one way in which he could alienate his title to the lands which he had inherited, and

the Secretary of the Interior.' The court added

that the conclusion was in accord with the that was by a deed of conveyance, approved by

views of the Supreme Court of the state, rethe court having jurisdiction of the settlement

ferring to Brock v. Keifer, 59 Okl. 5, 157 Pac. of the estate of the deceased allottee. 35 Stat. at L. 312, c. 199. While the restrictions had been removed from the lands in the sense that Jack had the power of alienation, it could only

Our conclusion is that a valid title can be be consummated and made effectual when ap- acquired to restricted Indian lands only unproved, as pointed out in the foregoing act of der a conveyance executed in conformity to Congress. Without the making of a deed, and the applicable provisions of the acts of the its approval, no judgment could be rendered, Congress relating to such lands. In view of regardless of the character of the suit or the

the conclusion reached herein the rule an. issues joined, whereby Jack's title could be di

nounced in Homer et al. v. McCurtain, 40 vested, he being a full-blood Creek Indian, and the lands being lands allotted to his kinsman,

Okl. 406, 138 Pac. 807. In re Impunnubbee's through whom, upon the death of succeeding

Estate, 49 Okl. 161, 152 Pac, 346, and other beirs, his title was derived. Nor could the cases in conflict with the rule herein are judgment be given effect in a subsequent legal overruled. proceeding, either as an estoppel or as con- Finding no error in the judgment of the stituting a former adjudication of his title. In trial court, the same is affirmed. other words, in so far as the title to such lands was concerned, the judgment was a nullity, be

HARRISON, O. J., and JOHNSON, MILcause of a want of power in the court to make it. Any other view would mean the circumven

LER, and ELTING, JJ., concur. tion of the statute prescribing the manner in MCNEILL, J., concurs in the conclusion. which such lands may be alienated, and make nugatory the acts of Congress prescribing the KANE, J. (dissenting). While I have not manner and terms of conveyances of allotted

much if any fault to find with the law statlands inherited by full-blood Indians.”

ed in the numerous authorities cited in supThe reasoning of the above case is appli- | port of the opinion prepared by Mr. Justice cable in full force to the instant case. If | KENNAMER, I find myself wholly unable the county court had the power to determine to perceive their applicability to the undisthe validity of the will as a conveyance of puted facts presented by the record before restricted lands, and it probated a will, us. While the case at bar purports to be which shows on its face that it did not in an action in ejectment, a purely legal proany respect comply with the requirements of ceeding, and it is so treated by the learned the act of Congress, such judgment would Justice, what the plaintiff really seeks to nullify the act of Congress by which the do is to establish heirship and contest a duly federal government attempted to retain con probated will, valid upon its face, đevising trol over these restricted lands.

the property claimed to the defendant who The rule is well established by the deci- went into and is holding possession under sions of this court and the federal courts, the will. that, in determining the validity of a con- Statutes varying greatly in the different veyance of restricted Indian lands, the courts states prescribe the jurisdiction of courts in will look to the acts of Congress alone. the establishment and determination of heirSmith v. Williams et al., 78 Okl. 297, 190 ship or the right to share in the distribution Pac. 555; Walker v. Brown, 43 Okl. 144, 141 of property left by a deceased person who Pac. 681; Molone et al. v. Wamsley, 80 Okl. dies intestate. 181, 195 Pac. 484; Goodrum v. Buffalo, 162 In this jurisdiction the court, having ex. Fed. 817, 89 C. C. A. 525; Tigér v. Western clusive jurisdiction over proceedings of this character, is the county court sitting as a , heir of the deceased testator, who was a probate court. As the establishment and de- full-blood Indian, and that the will is intermination of heirship or the right to share valid because it seeks to devise the land to in the distribution in the estate of a decet another person without being acknowledged dent dying intestate is governed solely boy and approved as required by Act of Congress statute, the citation of authorities from oth- of April 26, 1906, § 23, 34 Stat. 137, as er states upon this question will not prove amended by the Act of Congress of May 27, useful, unless it is shown that their statutes 1908, 35 Stat. 312, § 8. As I see it, the trougoverning descent and distribution and con- ble with plaintiff's case is that it was com. ferring jurisdiction upon courts in what are menced in a court which, under the law, has commonly called probate proceedings, appear no original jurisdiction to set aside a will to be the same as ours. In this state the ju- upon the grounds alleged. That this is a risdiction of the county court sitting as a purely statutory ground for contest over probate court is very extensive. Indeed which the county court has sole original juthere are very few states where the jurisdic- risdiction, clearly appears from section 6219, tion of these courts is so broad. But in the R. L. 1910, which provides: case at bar, as I view it, there is no neces

“When a will has been admitted to probate, sity for construing such statutes, either of

any person interested therein may at any time this or any other state, for the simple rea- within one year after such probate, contest the son that the deceased person leaving the same or the validity of the will. For that pur. land in controversy did not die intestate but pose he must file in the court in which the will left a will valid upon its face, which was was proved a sworn petition in writing consubsequently probated by the court having taining his allegations, that evidence discovered jurisdiction over such matters, devising the

ing the since the probate of the will, the material facts

of which must be set forth, shows: First. That land to the defendant who went into posses

a will of a later date than the one proved by sion under the will.

the decedent, revoking or changing the former Neither is it necessary to notice the nu

will, has been discovered, and is offered; or, merous authorities cited in the opinion second. That some jurisdictional fact was wanttouching the legal effect of probate upon a sing in the former probate; or, third. That the will. That question is settled in this juris- testator was not competent, free from duress, diction substantially as held in the author menace, fraud, or undue influence when the will ities cited by section 1208 R I 1910 which allowed was made; or, fourth. That the former

will was not duly executed and attested." provides, in substance, that the county court must admit the will to probate when satisfied from the testimony that the will was ex

As I view this case, both the petition of ecuted in all particulars as required by law the plaintiff and the undisputed facts clearly and that the testator was of sound mind at show that this is an attempt to contest a the date of its execution. In the case at will under the guise of an action in ejectbar the factum of a will, valid upon its face, ment in the district court, which court, as being conceded, there can be no reasonable the foregoing statute discloses, has no orig. doubt that the title to the land devised pass- | inal jurisdiction to determine the validity ed by the will itself to the devisee at the of wills. The majority opinion, it seems to time of the death of the testator and that me, holds that this may be done. I cannot he immediately acquired the right of posses- agree with this ruling sion upon the probate of the will. 40 Cyc. In England it is well settled by a long 1995, and cases cited.

series of decisions that the comprehensive Now starting at this point it is fairly ob- jurisdiction exercised by courts of chancery vious that in these circumstances, the plain- in setting aside other instruments does not tiff is not entitled to possession of the de-extend to wills, and that those courts have vised premises as against the defendant, un- no jurisdiction to determine the validity of til he gets rid of the will in the manner pre- a will of either personal or real property. scribed by the statutes of the state law. 40 Cyc. 1251. The will being valid upon its face will not In the United States the courts have uni. break down by its own weight; and being formly held that the principles established clear and not obscure or ambiguous in its in England apply and govern the cases aristerms, it cannot be construed away by the ing under the probate laws of this country, court. 40 Cyc. 1845, and cases cited. and that, whenever, in any state, the power

In these circumstances the plaintiff is to probate a will is given to a probate court, driven to the necessity of commencing an the decree of such court cannot be set aside action to set aside, or in other words, con- or vacated by the court of chancery, even on test the will in some court having jurisdic- the ground of fraud or mistake, except where tion over that sort of an action.

there is no adequate remedy at law, or And this is precisely what the plaintiff is where the circumstances are exceptional. seeking to do. He seeks to set aside the 40 Cyc. 1252. will upon a purely legal ground of contest. In the various states, jurisdiction over ac He alleges that he is the parent and soletions to set aside wills is vested in different (209 P.) courts. For example: In Arkansas, Illinois, , test a will in a court not invested with orig. Kansas, and several other states exclusive inal jurisdiction over such actions, and if original jurisdiction is vested in district or this court follows the rule announced by circuit courts; in Alabama and several oth-the Kansas Supreme Court, it will reverse er states exclusive original jurisdiction is the judgment of the district court and remit rested in courts of equity; in Oklahoma the plaintiff to his remedy by proper action and the great majority of states, exclusive to set aside the will in the county court, original jurisdiction is vested in probate When rightly understood there seems to be courts. See 40 Cyc. 1253, and the great num- no conflict in the authorities on this quesber of cases cited on this question. But tion so far as I can find. As I have hereinthe courts of all these various jurisdictions before pointed out there are states where the are in accord in holding that such proceed- district courts and courts of equity are inings, being purely statutory, can only be vested by statute with jurisdiction in acbrought, and successfully maintained in the tions to set aside wills, and of course in court, within the time and on the ground those states the jurisdiction of such courts prescribed in and by the statute which au- over actions of this sort, is sustained. But thorizes such actions. 40 Cyc. 1240. The such authorities are of no weight in this case of John Dean et al. v. John Swayne, 67 jurisdiction on account of the differences in Kan. 241, 72 Pac. 780, illustrates very well the statutes of the respective states hereinmy position in the case at bar. In Kansas, before pointed out. I have refrained from as we have seen, the district court has ex- | discussing any of the Indian features of the clusive original jurisdiction over actions to case because, in my opinion, it does not inset aside wills. One John Swayne filed pro | volve any of the rights of the plaintiff as ceedings in the probate court alleging that an Indian, whatever they may be. I deem he was the nephew and only heir in law of it to be too clear for controversy that, whenthe deceased testator; that the devise made ever a situation arises which requires an by the testator was void because of the un- Indian, of whatever blood, to commence an certainty of the beneficiary intended by said action to set aside a will upon any of the testator to take under the devise. A mo- statutory grounds, he must, like any other tion was made to strike this proceeding from citizen, resort to the courts of the state, the files, which was sustained by the pro- vested by law with jurisdiction over that bate court. From this order Swayne ap sort of an action, for the purpose of assertpealed to the district court, which court ov-ing his rights. And this has been the rule erruled the order of the probate court and in this jurisdiction, both as a territory and reinstated the proceeding. From this action a state, applicable to Indian and white citiof the district court, error was prosecuted zens alike, for so many years, that it has beto the Supreme Court. The Supreme Court come a rule of property if this time-honored reversed the action of the district court, rule is to be given any consideration whatholding that

ever. The following are a few of the many "The district court has exclusive jurisdiction

cases so holding: Ward v. Board of Comin actions to contest w'lls, and such actions

missioners, 12 Okl. 267, 70 Pac, 378; HOmust be brought within two years from the pro

mer v. McCurtain, 40 Okl. 406, 138 Pac. 807; bating of the will. The proceeding in this case Bell v. Fitzpatrick, 53 Okl. 574, 157 Pac. 334; was an attempt to contest the will and the pro-In re Byford's Will (Okl. Sup.).165 Pac. 194; bate court has no jurisdiction thereof."

In re Impunnubbee's Estate, 49 Okl. 161,

152 Pac. 346; Lucas v. Lucas (Okl. Sup.) 163 The only difference between these two Pac. 943. cases arises out of the fact that in Kansas It seems to me that a decent respect for the district court is invested by statute with the rule stare decisis and the stability of exclusive jurisdiction in actions to set aside land titles, if nothing more, forbids overrulwills, while in this state the county court, ing this long line of decisions at this late sitting as probate court, has exclusive ju- day. risdiction over such actions; there is no I am authorized to state that Vice Chief difference in principle between them. In Justice PITCHFORD, concurs in this disboth cases, the plaintiff's attempt to con- sent.

209 P.-12

rendered April 25, 1921) 197 Pac. 173 (not yet RATABAUGH V. STATE. (No. A-3681.) officially reported).

Defendant having failed to give notice of , (Criminal Court of Appeals of Oklahoma.

this intended appeal either in the manner May 25, 1921.)

provided by section 5992, Revised Laws 1910,

or section 5997, Id., this court is without (Syllabus by the Court.)

jurisdiction to entertain the appeal on its Criminal law em 1079, 1081-In absence of no

merits, and the appeal must necessarily be tice of appeal, summons in error, appearance,

dismissed. Mann v. State, 186 Pac. 1098; or waiver, Criminal Court of Appeals has

Robinson v. State, 189 Pac. 763; State v. no jurisdiction.

| Childers, 191 Pac, 1043; Sarten v. State, 193 Where appellant within the time allowed

Pac. 743; Burgess v. State, supra. for taking an appeal served no notice of appeal upon the clerk of the court or county attorney,

For reasons stated, the appeal is dismissed, as provided by Revised Laws 1910, 8 5992, and, and the

1910 & 999 ans and the cause remanded to the trial court, no summons in error was issued and served with instructions to enforce the judgment. upon the Attorney General, nor any waiver of the issuance and service ever made by him, within section 5997, or any general appearance entered by him, the Criminal Court of Appeals has no jurisdiction to entertain the appeal on its meríts, and will dismiss it.

WILLIAMS v. STATE. (No. A-3984.)

(Criminal Court of Appeals of Oklahoma. Appeal from County Court, Payne County;

Sept. 11, 1922.)
Wilberforce Jones, Judge.
Carl C. Rata baugh was convicted of mali-

(Syllabus by Editorial Staff.) cious mischief, and he appeals. Appeal dis-Criminal law 1182-Judgment affirmed, in missed and cause remanded, with instruc- absence of appearance, brief, and prejudicial tions.

error. See, also, 209 Pac. 230.

Judgment, where no appearance is made John P. Hickam. of Stillwater. for plaintiff nor brief filed, will be affirmed under rule 9

of the Criminal Court of Appeals (12 Okl. in error.

Cr. viii, 165 Pac. x), unless the record discloses S. P. Freeling, Atty. Gen., and W. C. Hall,

prejudicial error. Asst. Atty. Gen., for the State.

Appeal from District Court, Osage County; PER CURIAM. Plaintiff in error, Carl C. Chas. B. Wilson, Jr., Judge. Ratabaugh, hereinafter referred to as de fendant, was convicted in the county court

| P. R. Williams was convicted of embezzleof Payne county of the offense of malicious ment, and he appeals. Affirmed. mischief, and punishment assessed at a fine | The Attorney General, for the State. of $25. He has attempted to appeal to this court from the judgment of conviction ren-1 PER CURIAM. P. R. Williams was condered against him in said trial court on the victed in the district court of Osage county 12th day of November, 1919, by hling in this I of the crime of embezzlement, and his punishcourt on the 10th day of January, 1920, a

ment fixed at imprisonment in the state peni. petition in error with case-made and certified

tentiary for a term of two years. transcript of the record attached.

This appeal has been pending in this court Upon examination of the record and files

since the 20th day of May, 1921, the cause of the appeal in this court, it appears that

having been submitted June 1, 1922, at which defendant failed to serve any written notices

time no appearance was made by any counsel of appeal within the statutory period for tak.

representing plaintiff in error, nor has any ing an appeal in misdemeanor cases upon the

brief been filed in his behalf. Rule 9 of this county attorney or court clerk of Payne coun

court (12 Okl. Cr. viii, 165 Pac. x) provides: ty, as provided in section 5992, Revised Laws 1910; neither was there any service of a "When no counsel appears, and no briefs summons in error issued out of this court are filed, the court will examine the pleadings, upon the Attorney General, or a waiver of the

i ora waiver of the the instructions of the court, and the exceptions issuance of same, as provided in section 5997,

taken thereto, and the judgment and sentence,

and, if no prejudicial error appears, will afRevised Laws 1910..

firm the judgment." The only attempt to give notice of this appeal was by an oral notice in the trial court An examination of the pleadings, instrucat the time of the rendition of judgment. tions, and judgment and sentence discloses no Such a notice is not sufficient in a criminal prejudicial error, and the judgment is accase. Burgess v. State (No. A-3575, opinion cordingly affirmed.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

nia

(209 P.)

| Rev. Laws 1910, as amended in section 1, C. TAYLOR V. STATE. (No. A-3975.) 59, Sess. Laws 1919, (Criminal Court of Appeals of Oklahoma. 12. Indictment and Information om 166 - NegaSept. 11, 1922.)

tive averment essential in description of of

fense must be made and sustained by evi. (Syllabus by Editorial Staff.).

dence. Criminal law 1182-Judgment affirmed, in

Where a negative averment is an essential absence of appearance, briet, and prejudicial | fense. such negative averment should be made

and material part of the description of an oferror.

and sustained by the evidence. Judgment, where no appearance is made nor brief filed, will be affirmed, under rule 9 of 3. Schools and school districts 160-Instructhe Criminal Court of Appeals (12 Okl. Cr. tions as to duty of parent educating child priviii, 165 Pac. X), unless the record discloses vately held erroneous. prejudicial error.

Instructions relating to qualifications of

teachers and courses of study, as set out in the Appeal from County Court, Stephens Coun- opinion, held erroneous. ty; G. T. Burrows, Judge. Alton Taylor was convicted of vagrancy,

(Additional Syllabus by Editorial Staf.) and he appeals. Affirmed.

4. Schools and school districts om 160_Sufi. The Attorney General, for the State.

ciency of facilities for education of child out.

side of public school held for the jury. PER CURIAM. Alton Taylor was convict- tion outside the public schools are supplied a

Whether independent facilities for educaed in the county court of Stephens county of

child in good faith, and whether they are equiv. the crime of vagrancy, and his punishment

alent to those afforded by the state, is a ques. fixed at a fine of $25.

tion of fact for the jury, in a prosecution of a This appeal has been pending in this court parent under the compulsory school law. since the 29th day of April, 1921, the cause having been submitted June 1, 1922, at which Appeal from County Court, Major County ; time no appearance was made by any counsel Harry Randall, Judge. representing plaintiff in error, nor has any E. D. Wright was convicted of violating brief been filed in his behalf. Rule 9 of this the compulsory school laws, and he appeals. court (12 Okl. Cr. viii, 165 Pac. x) provides: Reversed.

“When no counsel appears, and no briefs are Tom E. Willis, of Fairview, for plaintiff in filed, the court will examine the pleadings, the

error. instructions of the court, and the exceptions taken thereto, and the judgment and sentence,

| George F. Short, Atty. Gen., and N. W. and. if no prejudicial error appears. will af | Gore, Asst. Atty. Gen., for the State. firm the judgment."

BESSEY, J. E. D. Wright was convicted An examination of the pleadings, instruc- l in the county court of Major county, on the tions, and judgment and sentence discloses

28th day of December, 1921, of violating the no prejudicial error, and the judgment is ac

compulsory school attendance laws of this cordingly affirmed.

state, and by the judgment of the court his punishment was assessed at a fine of $25 and costs, amounting to $131.45.

This prosecution was instituted under secWRIGHT V. STATE. (No. A-4226.)

tion 7930, R. L. 1910, as amended by section

1, chapter 59, Session Laws of 1919, which in (Criminal Court of Appeals of Oklahoma. substance provides that it shall be unlawful Sept. 16, 1922.)

for any parent to neglect or refuse to cause

his child or children to attend some public or (Syllabus by the Court.)

private school, or other school, unless other 1. Schools and school districts en 160-Parent means of education are provided, for a period held not liable to penalties for failure to send of two-thirds of the time the public school in to public school child taught by competent pri the district of his residence is in session. vate instructors.

The information charged that E. D. Wright, Where a parent is prosecuted under the defendant below, neglected, refused, and failpenal provisions of our compulsory school at

ed to compel his minor child, Felicia Wright, tendance statute for a failure to cause his

to attend the public school of his district, or eight year old child to attend the public school,

any private school, for two-thirds of the time and where such parent shows that the child

the public school was in session. has been taught by competent private instructors and is proficient in practically all the

[2] This information was defective, in that branches taught in the public school to children it failed to charge, negatively, that the child of about the same age, such parent is not sub attended no other school, and that no other ject to the penalties prescribed by section 7930, I means of education was provided, as incorpo,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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