even though the offer must thereafter be rejected as to those lands. In effect, then, the question of the availability of lands for noncompetitive leasing within the meaning of 43 CFR 192.42 (d), under the circumstances presented here, is determined by the facts which are reflected by the Bureau's records at the time an offer is filed. The question of whether a lease will be issued to a particular offeror, of course, must be determined upon the basis of all factors which may affect the issuance of a lease at the time action is taken on the offer as well as those of record at the time of filing of the offer.

In the present case, the record shows that the SSE4 sec. 19 and the NW1⁄4NW1⁄44 sec. 29, T. 1 N., R. 101 W., 6th P.M., described in the appellant's lease offer, were in the undefined known geologic structure of the South Rangely Field effective July 26, 1956. This information was reported by the Director, Geological Survey, by memorandum dated August 23, 1956.

The appellant does not deny that it knew, at the time of filing its lease offer, that part of the lands described were in a known geologic structure, nor has it suggested that this fact was not reflected by the land office records at that time. The appellee, Grynberg, has stated affirmatively that he and other parties "did check the records and did note that the 120 acres were within the undefined known structure." Accordingly, the Bureau was correct in finding that the appellant's offer did not comply with the Department's regulation and in directing the cancellation of the appellant's lease.

Therefore, pursuant to the authority delegated to the Solicitor by the Secretary of the Interior (210 DM 2.2A(4) (a); 24 F.R. 1348), the decision appealed from is affirmed.

IA-1292

ERNEST F. HOм,
Assistant Solicitor..

ESTATE OF STELLA CONGER

Decided March 10, 1964

Indian Lands: Descent and Distribution: Wills

An unapproved alleged contract to make a will devising restricted Indian land is inappropriate for approval and a claim for specific performance thereof against a restricted Indian estate must be denied.

APPEAL FROM AN EXAMINER OF INHERITANCE

This is an appeal from an order of the Examiner of Inheritance denying appellants' petition for rehearing in the estate of Stella Conger, Salt River Allottee No. 178, and denying their claim for

March 10, 1964

specific performance of an alleged contract to devise certain properties included in this estate.

Stella Conger died August 7, 1960, at about the age of 90 years, leaving no surviving spouse or issue. Four documents purporting to be her wills are of record. The first three, in point of time, are dated respectively May 5, 1950, June 23, 1950, and March 23, 1951. Each is similar in that it gives her own allotment to her nieces and nephews and further provides that in the event she is found to be the sole heir of her deceased husband, Charles Juan Conger, whose estate then awaited probate action, all the property inherited from him is to go to her husband's brother and sisters, William Conger, Suzie White and Mary Conger Sampson. The fourth document, dated April 2, 1953, which the Examiner approved as Stella's will in his order of December 22, 1961, gives all of her property, including that which she inherited from her husband, to her nephews and the only niece who survived on the date the will was executed.

If Stella died intestate the Examiner determined in his order of December 22, 1961, that her property would be inherited by her nephews, all nieces having predeceased her leaving no surviving issue. Appellants herein are Suzie White, the sister of Charles Juan Conger who predeceased his wife Stella, and Theresa Conger on behalf of the heirs and next of kin of William Conger, the deceased brother of Charles. The appellants contend that they are entitled to receive the property which Stella inherited from her husband because of a contract which they allege she made with them to devise such property to her husband's brother and sisters.

In support of their claim, the appellants state that Charles Juan Conger, Salt River Allottee No. 177, died in 1950 survived by his wife and sole heir Stella Conger. Charles Juan Conger left three documents purporting to be last wills and testaments in which Suzie Conger and William Conger were named beneficiaries. Stella is not named in the will dated September 26, 1947, but is devised and bequeathed certain property interests, including life estates, by the wills of October 1, 1947 and October 24, 1947.

Appellants say that during the course of the probate of Charles' estate, Suzie and William Conger entered into a contract with Stella to the effect that they would request disapproval of all three instruments so that Stella would take the entire estate as sole heir. They also allege that Stella promised that she would in turn devise and bequeath all property inherited from Charles to William Conger, Suzie White and Mary Conger Sampson, another sister of Charles. The three instruments purporting to be the last wills and testaments of Charles Juan Conger were disapproved and on March 29,

1951, the Examiner of Inheritance entered an order finding Stella to be the sole heir and entitled to the estate of her husband. Estate of Charles Juan Conger, Salt River Allottee No. 177, G-54–51, probate 5258-51.

Appellants contend the three wills dated May 5, 1950; June 23, 1950; and March 23, 1951, were executed by Stella pursuant to the alleged agreement.

In their statement of claim, appellants asked the Examiner to enforce the alleged contract and to disapprove the April 2, 1953 will insofar as it purports to dispose of property inherited by Stella from her husband Charles.

On September 8, 1961, the Examiner entered an order denying the claim on the ground that he lacked jurisdiction to decree specific performance of the alleged contract. Appellants' petition for rehearing was denied December 22, 1961, on the same ground.

A response and an amended response to the statement of claim and a response to the petition for rehearing were filed on behalf of James, John and Peter Shelde, beneficiaries under the April 2, 1953 will of Stella Conger. The responses deny the alleged contract, raise certain affirmative defenses, including lack of approval by the Secretary of the Interior of the alleged contract, and assert the Department lacks jurisdiction to grant the relief requested.

At the outset, we note that due to the nature of the Examiner's ruling in respect to the claim for specific performance of the alleged contract, no hearing has been held on whether in fact there was an agreement and we express no opinion thereon. We therefore confine our inquiry to the legal question of whether the Examiner of Inheritance was correct in refusing the relief requested, and for this limited purpose, we take appellants' allegations concerning the existence of such an agreement as true.

In addition to the three earlier alleged wills executed by Stella Conger, appellants in support of their claim also refer to the three documents purporting to be wills of Charles Juan Conger, affidavits purportedly executed by Suzie White and William Conger and filed in the probate proceedings of Charles Juan Conger, portions of the transcript of those proceedings, and the Examiner's order disapproving the wills and finding Stella the sole heir, which order, appellants say, was entered pursuant to the alleged agreement. They also rely on a letter dated November 1, 1954 from the Examiner of Inheritance to the administrative officer of the Pima Area Field Office withholding approval as to form, of Stella's April 2, 1953 will, which was approved in this proceeding.

March 10, 1964

Appellants ask the following questions in their brief on appeal:

1. Assuming that STELLA CONGER breached a valid contract to devise and bequeath inherited allotment lands, does the Examiner of Inheritance, in the course of probating her estate, have jurisdiction to entertain, hear, pass upon and adjudicate the merits of a claim for specific performance of said contract?

IF HE DID HAVE JURISDICTION, DOES THIS APPELLANT TRIBU-
NAL HAVE JURISDICTION TO DETERMINE THE CONTROVERSY ON
ITS MERITS AT THIS JUNCTURE?

2. The Will of STELLA CONGER, dated April 2, 1953, not having been approved by the Examiner of Inheritance (at that time MR. J. LEE RAWHAUSER) as required by Title 25, Sub Chapter (c) Section 15.1 Code of Federal Regulations, does the Examiner of Inheritance now have the jurisdiction to probate same?

3. From the record it appears that two different Examiners of Inheritance either participated in the alleged contract, or recognized same, thus is not the Secretary of the Interior estopped from taking a different position?

4. From the record it appears that there was virtually no evidence before the Examiner, E. S. STEWART, sufficient to compel him or permit him to disapprove the Last Will and Testament of CHARLES JUAN CONGER. Thus, did he have jurisdiction to enter the Order disapproving same, and if not, is it not true that as a matter of law the Last Will and Testament of CHARLES JUAN CONGER is still susceptible of probate, the terms of same hereby compelling a distribution to Appellants herein?

Questions 2, 3, and 4 are simply set out in the brief, and are not answered by argument or with authorities and do not raise meritorious issues.

Insofar as question 2 is concerned, appellants are in error in referring to 25 CFR 15.1, which provides for approval of wills of deceased Indians only. Section 15.28 and its predecessor 25 CFR 81.28 (1949 ed.) provide for approval only as to the form of a will during the life of the testator. Examiner Rawhauser's refusal to approve the will as to form six years prior to Stella's death was not and could not be a disapproval pursuant to Section 15.1. Action on the will under Section 15.1 was not taken until the order approving it was entered on December 22, 1961.

In question 4, appellants ask whether the Examiner had jurisdiction to approve the last wills and testaments of Charles Juan Conger. Even if the Examiner entered an erroneous order, appellants have pointed to no reason why the Examiner was without jurisdiction to act, and we see nothing to indicate that the Examiner lacked jurisdiction under the Act of June 25, 1910, 36 Stat. 855, as amended, 25 U.S.C. §§ 372 and 373 (1958).

As for question 3, even assuming that appellants could sustain the burden of proving that two Examiners recognized or participated in the alleged agreement, this would not estop the Secretary from tak

ing a different position now. Federal Crop Insurance v. Merrill, 332 U.S. 380 (1947); Utah Power & Light Co. v. United States, 243 U.S. 389 (1917); United States v. West, 232 F. 2d 694 (9th Cir. 1956), cert. denied, 352 U.S. 834 (1956).

But regardless of any such alleged participation or recognition, without the Departmental approval required by section 5 of the Act of February 8, 1887, 24 Stat. 388, 389-390; 25 U.S.C. § 348 (1958), the alleged agreement which affects restricted Indian property, is void and appellants' claim based upon it is not enforceable by this Department or the courts. "Validity of Unapproved Side Agreements Between Indians and Lessees of Restricted Lands," M-36549 (Feb. 3, 1959); Estate of Ortego Lopez, IA-860 (Apr. 14, 1958); Estate of Johnnie G. Goodluck, Probate 46871-45; Spector v. Pete. 157 Cal. App. 2d 432, 321 P. 2d 59 (1958), cert, denied, 358 U.S. 822 (1958), rehearing denied, 358 U.S. 938 (1959); Wah-Hrah-Lum-Pah v. To-Wah-E-He, 77 Okla. 295, 188 Pac. 106 (1920).

Regarding approval of the alleged contract, Examiner Stewart, who conducted the probate of the Charles Juan Conger Estate, in his final order neither recites an alleged agreement nor alludes to one. On the contrary, the Examiner merely stated in his order that the wills of Charles Juan Conger were not proper instruments for approval and that the devisees had requested disapproval so that Stella Conger could be found sole heir. Such action does not amount to the express approval required.

The references to an agreement and the comment that Stella should not be allowed to rescind it, contained in Examiner Rawhauser's November 1, 1954 letter, also do not constitute the required approval of the alleged contract.

Finally and conclusively, even assuming either or both of the Examiners actually did attempt to approve the purported arrangement, neither had the authority to approve a contract touching restricted Indian land as required by 25 U.S.C. § 348, supra, which authority has never been delegated to them.

As to whether this alleged agreement should now be approved, no instance has been cited by the appellants and our research has revealed none in which Departmental approval has been accorded contracts to make wills. Whenever the problem has been considered, relief has been denied. Bismark Mosier, 63 I.D. 205 (1956); Estate of Petints or Louise Yumsunkin probate No. 32423-39. Approval of the alleged contract in question here appears particularly inappropriate since it was not reduced to writing. Certainly there is nothing in the statutes pertaining to restricted Indian property or in the regulations to indicate that this type of transaction is approvable.