Pratt v. Wright , 160 Okla. 256 ( 1932 )

RILEY, J.

Plaintiff in error appeals from a finding and decree of heirship in the administration of the estate of Martha Pratt, deceased, referred to in the case-made as Martha Pratt, Sr. The cause originated in the county court of Carter county in 1925. Eugene Wright filed a petition for appointment of herself as administratrix of the estate of Martha Pratt, deceased, who died intestate in Carter county September 6, 1925. Upon such petition Eugene Wright was appointed as administratrix and qualified as such. The property belonging to the estate was described in the petition as consisting of household goods of the value of $100, and a federal insurance policy on the life of Elugene Pratt, a soldier of the World War, in which the said Martha Pratt was the beneficiary. The unpaid balance on the insurance policy was valued at about $9,000.

About one year after her appointment, the county court entered an order releasing the United States Fidelity & Guaranty Company as surety on her bond, reciting in the order that no funds belonging to said estate had been collected by the administra-trix, and no liability had accrued on the bond. Thereafter, on March 31, 1928, one Tom Perkins filed a motion to remove the said Eugene Wright as such administratrix, alleging that he was the next of kin of Martha Pratt, deceased, and entitled to letters of administration, and that the appointment of Eugene Wright had been made without notice to him, and also alleging the failure of Eugene Wright to qualify, and further alleging incompetency and neglect of duty, etc. He requested the appointment of Louis Fischl as administrator.

On April 2, 1928, Martha Pratt, Jr., filed a petition for revocation of the letters of administration of Eugene and prayed that letters of administration issue to her, alleging that she, Martha Pratt, Jr., was the sole surviving heir at law of Martha Pratt, Sr., alleging that she was a granddaughter of said deceased. A hearing was had in the county court on April 19, 1928, and the matter was taken under advisement. Thereafter on April 26, 1928, Eugene Wright filed 'in said court a petition to determine heir-ship wherein she alleged that Martha Pratt, Sr., left surviving her as her sole heirs the petitioner, Eugene Wright, Cora Lee Shelton, Tom Perkins, and Louis Perkins, Jr., and setting up that Martha Pratt, Jr., was claiming to be the sole heir, etc., and praying:

•‘The court to make and enter an order finally determining that the petitioner, together with Tom Perkins, Cora Lee Shelton, and Louis Perkins, are the sole and only heirs of Martha Pratt, deceased.” An order was made setting this petition for hearing for May 17, 1928, at which time Martha Pratt, Jr., appeared and filed an “objection to final report and petition of distribution of Eugene Wright, administratrix.” She specifically denied that Tom Perkins, Louis Perkins, Jr., Cora Shelton, and Eugene Wright were the next of kin and heirs at law of Martha Pratt, deceased, and further alleged:

“3. Martha Pratt alleges and states that upon the death of Martha Pratt in Carter county, Oklahoma, on the_day of November, 1925, she left surviving her as her next of kin protestant, Martha Pratt, a granddaughter, as the nearest of k'in and the sole and only heir at law of her estate at the time of her death.

“4. Further pleading, protestant alleges and states that her mother, Ruth Pratt, was the daughter of Martha Pratt, deceased, and that her father was Nelson Pratt, died in the year 1919, and that upon the death of Martha Pratt she left no children, no husband, and this protestant as the sole and only grandchild surviving her at the time of her death and that she is the sole and only heir at law of Martha Pratt, deceased, and entitled to take all the estate of Martha Pratt, deceased.”

She prayed that the report of Eugene Wright, administratrix, be rejected and her petition for distribution be denied and: “That this court find and declare that Martha Pratt, the protestant herein, is the sole and only heir at law to said estate and that the estate be distributed to her as the sole and only heir at law of Martha Pratt, deceased, and that she have all other and proper relief.”

The whole matter was heard and taken under advisement until September 6, 1928, at which time the county court entered its /finding, in part, as follows:

“That Martha Pratt, Sr., departed this life, on the 6 day of September, 1925, and that she left surviving her as her sole and only heir at law Martha Pratt, Jr., and that said Martha Pratt, Jr., is entitled to the whole of the estate of said Martha Pratt, Sr.

“The court further finds that Eugene Wright has failed to qualify as administra-trix and is not competent to administer said trust and should be and is hereby removed as such administratrix and Martha Pratt, Jr., being entitled to the appointment as ad-ministratrix and having waived said right and nominated and asked the court to ap. point Louis A. Fischl, as administrator, and the court finding said Louis A. Fischl a fit and proper person.”

The county court entered an order revoking the letters of administration of Eugene Wright and appointed Louis Fischl as administrator. An appeal was taken to the district court, where the whole matter was heard de novo, resulting in a reversal of the findings of the county court as to who the heirs of Martha Pratt, deceased, were. The order removing Eugene Wright as ad-ministratrix and appointing Louis Fischl was affirmed. From these findings and orders Martha Pratt, Jr., brings this appeal.

There are ten assignments of error, but as they do not seem to be separately presented in the briefs of plaintiff in error, we will consider separately only assignments which call for such consideration.

The question of jurisdiction of the district court was raised upon the ground that J-he case-made did not contain or show any appeal bond in the appeal from the county court to the district court, but after the brief of plaintiff in error was filed the case-made was corrected so as to show the filing of the appeal bond within time, which disposes of that question.

The assignments relative to admission of certain evidence and the refusal to admit certain evidence offered by plaintiff in error are not presented in the brief and will be treated as abandoned.

The contention is made that the county court had no jurisdiction in an administration proceeding to determine heirship. Wo have set out somewhat at length the pleas filed by the parties in the qounty court. Jt will be observed that plaintiff in error in her objection to the final report and order of distribution of Eugene Wright specifically prays that the court find and declare that she is the sole and only heir at law of said estate and that the estate be distributed to her.

Section 1079, C. O. S. 1921, subdivision 7, confers jurisdiction upon the county court to order and regulate all distribution of property or estate of deceased persons.

Section 1384, C. O. S. 1921, provides:

“The county court having jurisdiction to settle the estate of any deceased person is hereby granted original jurisdiction to hear and determine the question of fact as to the heirship of such person, _ and a determination of such fact by said court shall be conclusive evidence of said question in all courts of this state. Provided, that appeals may be taken from said county court within the time and in the manner provided by law as in other probate matters.

'It 'is apparent from these provisions that the contention cannot be sustained.

It is suggested that the findings as to heirship are premature in that notice to creditors had not been given., This question was not raised in the county court or In the district court and no mention is made thereof in the motion for new trial nor in any assignment of error in the petition in error.

All other assignments go to the sufficiency of the evidence to sustain the findings and the conclusion of law based thereon. It is conceded that Martha Pratt, deceased, left no husband and children surviving her. It is also conceded that defendant in error Tom Perkins is a full brother and that Eugene Wright and Cora Lee Shelton are paternal half-sisters and Louis Perkins is a paternal half-brother of deceased, Martha Pratt, Sr. It is also conceded that Ruth Pratt was the daughter of Martha Pratt, deceased, and predeceased her mother, and that plaintiff in error, Martha Pratt, Jr., is the daughter of Ruth Pratt. Emmett, Pratt was a son of Martha Pratt, deceased, and a full brother of Ruth Pratt. Emmett Pratt died in June, 1910, 'intestate, without having been married. Nelse Pratt was a husband of Martha Pratt, deceased, and father of Emmett and Ruth Pratt. He died in March, 1919, prior to the death of Emmett Pratt. In the administration proceedings upon the estate of Emmett Pratt, deceased, Martha Pratt, Sr., his mother, was decreed to be a sole and only heir. It is conceded, and the evidence conclusively shows, that Martha Pratt, Jr., plaintiff in error, was born-to Ruth Pratt several years before her marriage and was born out of wedlock. Ruth Pratt, her mother, was married to one George Cherry in 1919, at which time Martha Pratt, Jr., plaintiff in error, was about eleven years of age. It is conceded that the said George Cherry was not the father of Martha Pratt, Jr.

The plaintiff in error bases her right to inherit upon the claim that Nelse Pratt, father of Ruth Pratt, was her father. That is, that she was begotten as a result of incestuous relations between father and daughter, Nelse Pratt and Ruth Pratt, and that said Nelse Pratt publicly acknowledged her as his child and took her into his family with the consent of his wife, and that thereby she became and was legitimized and was entitled to inherit as representative of and through her mother, Ruth Pratt. Considerable evidence was presented both for and against the claim so made. We deem it unnecessary to discuss the evidence relative to who was the father of the said Martha Pratt, Jr. The trial court declined to find that Nelse Pratt was her father, and there was no error therein. It ’is conceded that the father and mother of Martha Pratt, Jr., never intermarried, and the trial court so found. The trial court found that Martha Pratt, Jr., was not an heir of Martha Pratt, Sr., because of the illegitimacy of Martha pratt, Jr., and the provisions of the statute prohibiting her from representing her mother, Ruth Pratt, in inheriting from her mother’s kindred. In this the court was correct. If the evidence of plaintiff in error and her witnesses be taken as true and it be conceded that Nelse Pratt was her father, and if it be true that he acknowledged her as his child, though not in writing, and took her into his family with the consent of his wife, that would not be sufficient to entitle her to inherit from Martha Pratt, Sr., as the representative of Ruth Pratt.

Section 11303, C, O. S. 1921, specifically provides that an illegitimate child “does not represent his father or mother by inheriting any part of the estate of his or her kindred, either lineal or collateral, unless before his death his parents shall have intermarried, and his father, alter such marriage, acknowledge him as his child, or adopts him into his family.’’ Therefore, in order for plaintiff in error to represent her mother by inheriting from her mother’s mother, it was essential that the father ar.d mother of Martha Pratt, Jr., should have intermarried and thereafter the father acknowledge her as his child or adopt her into his family. It is conceded that no such marriage was ever consummated. The fact, 'if it be a fact, that Nelse Pratt acknowledged plaintiff in error to be his child would not be sufficient. Pulliam v. Churchman, 108 Okla. 290, 236 P. 875, is cited and relied upon by plaintiff in error, but is not 'in point. The estate of Ruth Pratt is not here involved. Martha Pratt, Jr., could inherit whatever estate Ruth Pratt, her mother, left. Had Ruth Pratt survived her mother, then the plaintiff in error would be entitled to inherit, as the estate would then come to her directly from her mother, but such is not the case.

The trial court found that at the death of Martha Pratt, Sr., she left surviving her as her sole and only heirs, Tom Perkins, a full brother, Eugene Wright and Cora Lee Shelton, paternal half-sisters, and Tom Perkins, Jr., a paternal half-brother.

All the parties are negroes and descendants of former slaves. Plaintiff in error contends tliat none of tlie brothers or sisters or half-brothers and sisters of Martha Pratt, deceased, could inherit from her for the reason that they were either illegitimate children or descendants of an illegitimate child, viz., their father, Louis Perkins. She contends that Louis Perkins (for convenience hereinafter referred to as Louis Perkins, Sr.), the father of Martha Pratt, Sr., and of Tom Perkins, her brother, was an illegitimate child, the offspring of a negro slave mother and her white master; that he was married to one Eliza, a negro slave, about 1850, and that under the law as it then existed, Eliza being a negro slave, was incapable of entering into a valid marriage contract, and, therefore, the children of said pretended marriage, Tom Perkins and Martha Pratt, nee Perkins, were both illegitimate, and that for that reason Tom Perkins cannot inherit from his^full sister, Martha, and that Eugene 'Wright, Cora Lee Shelton, and Louis Perkins, Jr., children of Louis Pratt, Sr., by a second marriage contracted after the general emancipation, could not inherit because of the illegitimacy of their father, Louis Pferkins, Sr. The evidence shows that Louis Perkins, Sr., and his first wife, Eliza, were married either in Alabama or Louisiana about 1850, and that Tcm Perkins and Martha Pratt, nee Perkins, their children, were born of that union before slavery ceased to exist, but the evidence further shows that they continued to live together as husband and wife many years after the close of the Civil War and that the children of their marriage, particularly Tom Perkins, lived with them in their home and were recognized as their children. They moved to Texas and lived as husband and wife until the death of Eliza, which occurred about 1880. After her death, Louis Perkins, Sr., moved to Indian Territory and there married his second wife, and to that union Eugene, Cora Lee, and Louis, Jr., were born. There can be no question as to the legitimacy of those three children.

As to the first marriage, although it may have been invalid when entered into, and at the time the two children, Tom and Martha, were born, it afterwards became valid by their continuing to live together as husband and wife many years after slavery ceased to exist, and when there was no impediment to their marriage, said marriage ripened into and became a valid common-law marriage, which has always been recognized in this state. Thereby the children of that union, if illegitimate before, became legitimate.

There is no law which prevents legitimate children of an illegitimate father from inheriting from or through such father.

The findings and decree of the trial court were correct, and as the appointment of Louis Eischl as administrator of the estate of Martha Pratt, deceased, was not disturbed in the district court, and that part of the judgment or decree not being appealed from, the finding and decree of the district court are hereby affirmed.

LESTER, O. J., and HEENER, CULLI-SON, SWINDALL, ANDREWS, McNEILL, and KORNEGAX, JJ., concur. CLARK, V. O. J., absent.