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March 11, 1964

In view of the foregoing, appellants' first question as to whether their claim for specific performance of the alleged contract may be granted must be answered in the negative, and their claim is accordingly denied.

Therefore, pursuant to the authority delegated to the Solicitor by the Secretary of the Interior 210 DM 2A (3) (a), 24 F.R. 1348, the order of the Examiner of Inheritance denying the petition for rehearing is affirmed and the appeal is hereby dismissed.

EDWARD WEINBERG,

Deputy Solicitor.

ESTATE OF FRANK SIMPSON
PAWNEE ALLOTTEE NO. 645

IA-1270

Decided March 11, 1964

Indian Lands: Descent and Distribution: Wills
Where the sole devisee of restricted Indian property dies prior to the death

of the testator, in approving the will under the Act of February 14, 1913, 37 Stat. 678, 25 U.S.C. $ 373, this Department, unless contrary to the intent of the testator, applies the rule that the devise does not lapse but that the lineal descendants of the devisee take by substitution under the will.

APPEAL FROM AN EXAMINER OF INHERITANCE, BUREAU OF INDIAN

AFFAIRS

Lois Morris Knife Chief, Anna Audrey Morris Mulder, Rowena Kate Morris Salmon, Georgia May Morris Adson and Francis E. Morris have appealed to the Secretary of the Interior from a decision of an Examiner of Inheritance dated September 15, 1961, affirming the original order disapproving wills and determining the heirs of Frank Simpson, deceased Pawnee Allottee No. 645. The decedent died on May 18, 1959, at the age of 83, a resident of Oklahoma, leaving no surviving spouse or issue.

Frank Simpson made a will dated June 2, 1939, which was unrevoked when he died, by which he devised and bequeathed all of his property to his sister, Alice Simpson Morris, who predeceased him. The appellants are all the children of Alice Simpson Morris.

This appeal is from the order of the Examiner disapproving the will and from his order determining the heirs of Frank Simpson to be Fred James Long, Margaret Claudine Long, and Grover Long, Jr., who were determined by the Examiner to be the adopted children of the decedent under a court decree of July 22, 1938.

Appellants contend that the Act of February 14, 1913, 37 Stat. 678; 25 U.S.C. $ 373, gave the decedent the right to make a will and gave the Secretary of the Interior or his representative the broad discretionary power to approve or disapprove it; that it was the testamentary desire of the decedent that his property should go to his sister, Alice Simpson Morris, and that none of his property should go to the three children named in the adoption decree of July 22, 1938; and that appellants, the children of Alice Simpson Morris, are entitled to the property under the Oklahoma anti-lapse statute. In the alternative, appellants contend that decedent did not know what was transpiring on July 22, 1938, when they allege he was overreached by his then wife and others into adopting three of her children by a former marriage. On this ground the appellants ask that the adoption not be recognized and that the children of Alice Simpson Morris be determined the heirs of the decedent.

Frank Simpson divorced Palma Simpson, the mother of Fred James Long, Margaret Claudine Long, and Grover Long, Jr., on February 6, 1939. According to the record in case No. 1900 in the County Court of Pawnee County, Oklahoma, the three children, then of ages 19, 13, and 4, respectively, were adopted by Frank Simpson on July 22, 1938. Appellants attack the validity of the adoption decree principally because Frank Simpson could not read or readily understand and speak the English language and thus allegedly did not understand what was occurring in said proceedings.

In the original order, dated April 8, 1960, disapproving wills by Frank Simpson and determining heirs, the Examiner disapproved the last will, dated June 2, 1939, because, “By virtue of the lapse of all devises, legacies and bequests under this will, it becomes totally inoperative and ineffective upon the death of the said Alice Simpson Morris.”

In his order affirming the original order which disapproved the will of Frank Simpson, the Examiner held that appellants should not take as lineal descendants of the sole beneficiary of the decedent's will under the provision of the Oklahoma anti-lapse statute ? because (1) the will was not executed pursuant to the laws of Oklahoma but pursuant to the federal law; (2) the state law is inapplicable and the Secretary of the Interior is without authority to change or modify the terms of the will; and (3) the application of state statuMarch 11, 1964 tory provisions would be impractical and would lead to utter confusion as to the status of any such will.

184 0. S. (1951) 142. The Oklahoma "anti-lapse" statute is as follows:

"When any estate is devised or bequeathed to any child or other relative of the testator, and the devisee or legatee dies before the testator leaving lineal descendants, such descendants take the estate so given by the will in the same manner as the devisee or legatee would have done had he survived the testator."

. See note 1, supra.

An examination of the will, dated June 2, 1939, shows that it was witnessed by two attesting witnesses, signed by Frank Simpson and that by its terms he left "all of my property which consists of the following allotments * * *" to his sister, Alice Simpson Morris, Pawnee Indian. The will provides that the residue of the estate also goes to Mrs. Morris. The will further states "I have adopted the following children of my former wife: Fred James Long, Margaret Claudine Long, and Grover Long, Jr., but do not desire that they have any part of my estate.” The testator made a similar statement in an affidavit which is attached to the will and which was executed on the same date that the will was executed. The foregoing definitely shows that Frank Simpson did not intend that his property should go to the three adopted children.

The purpose of the Act of February 14, 1913, supra, giving Indians the right to make wills, was to allow them to change the normal course of descent of their property, and to permit them to execute wills disposing of their trust or restricted property in the manner of their choice, subject, however, to the approval of the Secretary of the Interior. A cardinal principle in all jurisdictions and adhered

. to by the Secretary is that the intent of the testator must be carried out if the law permits.

We agree with the Examiner that with respect to Indian wills falling within the purview of the Act of February 14, 1913, supra, the state law of Oklahoma is inapplicable. The Secretary of the Interior is not bound to apply the state law but on the other hand he may apply such rules as he finds proper for application to Indian wills.

However, it has long been the Department's policy to apply a rule similar to the statutory law of Oklahoma in approving wills under the 1913 act in order to prevent lapses of devises in Indian wills.*

Accordingly, the determination of the Examiner that the 1939 will is not susceptible of approval as a matter of law is in error because it thwarts the expressed intention of the testator and fails to properly consider and apply the Departmental anti-lapse rule. However, because of insufficient evidence in the record on the factum of the 1939 will, there is no present basis upon which to determine whether the will has been properly executed and is otherwise approvable.

3 Homovich v. Chapman, 191 F. 2d 761 (D.C. Cir. 1951); Hanson v. Hoffman, 113 F. 2d 780 (10th Cir. 1940).

* 54 I.D. 584, 585 (1934); Estate of Osoterin (Smoky Woman or Mrs. White Tallow) IA-845 (January 16, 1959); Estate of Lawrence Bull Bear (January 10, 1933, modified July 19, 1933), Indian Bureau file Nos. 19437–33 and 71377–33; Estate of Big Plume (October 19, 1915), Indian Bureau file No. 76725-15.

Until the Examiner can conduct further proceedings to decide these matters, we think it inadvisable to consider the other point raised by the appellants, which becomes moot if the will is approved.

Pursuant to the authority delegated to the Solicitor by the Secretary of the Interior (Sec. 210 DM 2.2A (3) (a), 24 F.R. 1348), the Order of the Examiner of Inheritance, dated September 15, 1961, is reversed, and this case is remanded to the Examiner for further proceedings in conformity with this decision.

EDWARD WEINBERG,

Deputy Solicitor.

APPEAL OF COMMONWEALTH ELECTRIC COMPANY

DCA-347

Decided March 12, 1964

Contracts: Additional Compensation-Contracts: Changed Conditions Con

tracts: Delays of Government Under the “Changed Conditions" clause of a contract for the stringing of

electrical conductor on towers to be provided by the Government, where the contractor knows when bidding the job that some of the towers have not yet been completed, and where the Government fails to have these towers completed by the time when they are reasonably needed for stringing, an equitable adjustment is not allowable for the extra expense incurred by the contractor in moving crews back to these towers after they have become available for stringing, since such events do not amount to a changed condition, and since, if they did, such expense

would be in the nature of consequential damages flowing from delay. Contracts: Breach-Contracts: Delays of Government A claim for additional compensation on account of delay by the Govern

ment in performing its own obligations under a contract is not a claim for relief under the contract that the contracting officer or a board of contract appeals would have authority to adjudicate by virtue of a standard-form "Disputes" clause, since it is a claim for breach of contract.

BOARD OF CONTRACT APPEALS Commonwealth Electric Company has taken a timely appeal from a decision of the contracting officer in which the latter declined to consider claims for additional compensation presented by appellant,

March 12, 1964

on the ground that “they are for unliquidated damages which I, as contracting officer, have no authority to entertain or settle under the terms of the contract."

The claims in question spring from a contract of the Bureau of Reclamation for the addition of a second circuit to three existing transmission lines in the States of South Dakota and Iowa. The conductors for the second circuit were to be strung by appellant on towers erected for the Government by other contractors. The contract, which was dated February 6, 1961, and designated No. 1406-D-3754, was on Standard Form 23 (Revised March 1953) and incorporated the General Provisions of Standard Form 23A (March 1953) for construction contracts.

Appellant alleges that at three substations or switchyards, erection of the towers had not been completed by the time when its stringing crews reached these locations. Accordingly, they were by-passed and when the towers did become available at each of them, a crew was sent back to finish the stringing work at that substation or switchyard. Appellant concedes that at the time of bidding the job it knew the towers in question had not been completed, but contends that the terms of the contract were such as to justify an assumption that the towers would be available by the time when the stringing crews could reasonably be expected to arrive at their sites. So reasoning, appellant filed claims for additional compensation on account of the expense of moving its men and equipment to and from the previously by-passed locations in order to finish the stringing work at them. It is these claims that the contracting officer declined to consider because he believed them to be claims for "unliquidated damages," a term which, when used with reference to claims under Government contracts, is essentially synonymous with the more apt term “breach of contract.” 1

The correctness of the contracting officer's action is challenged by appellant on the ground that its claims are within the scope of Clause 4, entitled "Changed Conditions," of the General Provisions of the contract. That clause authorizes the making of an equitable adjustment in the event the contractor encounters either one of two categories of changed conditions, namely, “(1) subsurface or latent physical conditions at the site differing materially from those indicated in this contract, or (2) unknown physical conditions at the site, of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inhering in work of the

IR. P. Shea Company, IBCA-37 (November 30, 1955), 62 I.D. 456, 463, 6 CCF par, 61, 738.

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