Tiger v. Timmons , 147 Okla. 141 ( 1931 )

When the opinion of this court was delivered January 6, 1931, Mr. Justice Clark, Mr. Justice Riley, and I dissented. At that time Mr. Justice Clark wrote a dissenting opinion in which I concurred. Since then a petition for rehearing has been filed and this day denied. I now desire to call the attention of my associates to the language of Mr. Justice Holmes, of the Supreme Court of the United States, in a special concurring opinion in the case of Francis Beidler, II, and George Engelking, as Executors of the Last Will and Testament of Francis Beidler, Plaintiffs in Error, v. South Carolina Tax Commission, which opinion was filed November 24, 1930, 51 S. Ct. 54, 75 Law Ed. ___, wherein he said:

"The decisions of last term cited by the Chief Justice seem to sustain the conclusion reached by him. Therefore Mr. Justice Brandeis and I acquiesce, without repeating reasoning that did not prevail with the court."

So, in this case, without repeating the reasoning of Mr. Justice Clark that did not prevail with the majority of this court, I desire to add the following to the views expressed by my associate, Mr. Justice Clark.

At the time the Act of Congress, April 26, 1906, was passed, and at the time the same was amended by the Act of May 27, 1908, there was no restriction in the laws of Oklahoma against a husband or wife disinheriting the other. Section 6168, Statutes of Oklahoma Territory, 1893, and section C803, Wilson's Statutes of Oklahoma Territory, 1903.

As said by the Supreme Court of the United States in the case of Blundell v. Wallace, 69 L. Ed. 664, it was the intention of Congress at the time of the passage of the acts above mentioned to remove restrictions so that a member of the Five Civilized Tribes could dispose of his property by will according to the laws of the state of Oklahoma, but at that time, under the laws of the state of Oklahoma, a husband or wife could disinherit the other or any of their children. Congress evidently wanted to guard against the exercise of this right by full-blood members of the Five Civilized Tribes, and provided a safeguard against the free exercise of such right by the proviso appearing in the act. If the law had been as it now reads, Congress in all probability would not have added the proviso, as there would have been no necessity for it.

The Legislature of Oklahoma passed an act which was approved by the Governor on March 27, 1909, amending section 6168, Statutes of Oklahoma, 1893, to provide, among other things, that no married man or married woman while married could bequeath more than two-thirds of his or her property away from the other. This statute as amended was brought forward as section 11224, C. O. S. 1921, which section was in force at the date of the death of Jennie George. It is her will that is involved in this action. The section last mentioned was again amended by the Legislature in 1925, Session Laws of 1925, at page 30. The last amendment is not material here, as it was made after the death of Jennie George.

The Acts of Congress of 1906 and 1908 should be construed in the light of the contemporaneous circumstances and in the light of the Oklahoma law then existing, and not in the light of the Oklahoma law as it now exists.

In my opinion, section 23 of the Act of Congress of April 26, 1906, authorizes any Indian of lawful age and sound mind by last will and testament to devise and bequeath all of his estate, real and personal, and all interest therein, according to the local laws of the state, limited by the proviso 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 a judge of the United States Court for the Indian Territory, or a United States commissioner, or a judge of a county court of the state of Oklahoma. This was not intended to be a limitation or restriction on the operation of the local laws, but a matter of precaution on the part of Congress to protect the Indian and the relatives of the Indian citizen against designing persons who might seek to induce the Indian to will and bequeath his or her property to a stranger and disinherit the parent, wife, spouse, or children of such full-blood Indian, where the state laws (did not restrict the citizens of the state in the disposition of their property by will.

The limitation in the proviso was to be in addition to the provisions of the local laws and not a limitation on the operation thereof which in no way conflicts with the acts of Congress.

The majority opinion follows Blansett v. Cardin,256 U.S. 319, which was held by the Supreme Court of the United States not to be applicable to the Five Civilized Tribes, in Blundell v. Wallace, supra, where that court said:

"But here the federal statute contains no provision of like character; it is without qualification except in the single particular set forth in the proviso; and, clearly, it does not stand in the way of the operation of the local law."

Since the Supreme Court of the United States has held that the acts of Congress herein mentioned do not stand in the way of the operation of the local law, section. 11224, C. O. S. 1921, I see no reason why this court should hold that said acts of Congress do stand in the way of the local law, and in my opinion that is just what the majority opinion holds.

Other cases supporting the view that it was the intention of Congress that the laws of the state of Oklahoma should govern in cases of this nature are: Charles C. Childress, State Auditor, v. John Beavers, 70 L.Ed. (U.S.) 730; Tiger v. Slinker 4 F.2d 714; Kunkel v. Barnett, 10 F.2d 804; Jefferson v. Fink, 247 U.S. 288; United States v. Fox,94 U.S. 315. In the last case, the Supreme Court of the United States says:

"It is an established principle of law, everywhere recognized, arising from the necessity of the case, that the disposition of immovable property, whether by deed, descent, or any other mode, is exclusively subject to the government within whose jurisdiction the property is situated. * * * The power of the state in this respect follows from her sovereignty within her limits, as to all matters over which jurisdiction has not been expressly or by necessary implication transferred to the federal government. The title and modes of disposition of real property within the state, whether inter vivos or testamentary, are not matters placed under the control of federal authority. Such control would be foreign to the purposes for which the federal government was created, and would seriously embarrass the landed interests of the state."

For the reasons stated by Mr. Justice Clark in his dissenting opinion, supplemented by the reasons herein stated, I cannot concur with the majority of my associates in the opinion filed January 6, 1931, and most respectfully dissent.

I am authorized to say Mr. Justice Riley concurs in this dissent.