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erty" of the Bridge Electric Company, but it appears from the stipulation that the president of the company was heard with respect to the valuation and assessment of all of its property, and we cannot doubt that the contracts we have described, which very plainly gave to this short line of railway much of the value as a going concern which led the company to bond and capitalize it at $1,000,000, and the board to value it at approximately one half that amount, must have been taken into consideration by the board, and that, therefore, the contention that the tax was levied exclusively upon the franchise to do an interstate business is not sound, and must be rejected.

It results that the judgment of the Supreme Court of Missouri must be af

firmed.

[319] MIKE BLANSET, Appt.,

V.

OSCAR CARDIN, as Guardian of Jesse
Daylight, a Minor, et al.

(See S. C. Reporter's ed. 319-327.)

Indians

allotments

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devise.

The prohibition of Oklahoma Code, § 8341, against the bequest by a married man or woman of more than two thirds of his or her property away from the other spouse, cannot be invoked to defeat the will of an Indian married woman, the allottee of restricted lands, who died before the expiration of the trust or restrictive period, by which she devised to her children and grandchildren such lands and all trust funds held by the United States to her use and benefit, in view of the provisions of the Act of February 14, 1913, § 2, that one having an interest in any allotment held under trust, or other patent containing restrictions on alienation, shall have the right, prior to the expiration of the trust or restrictive period, and before the issuance of a fee-simple patent, or the removal of restrictions, to dispose of such property by will, in accordance with regulations to be prescribed by the Secretary of the Interior, who may approve or disapprove the will, either before or after the death of the testator, and that neither circumstance shall operate to terminate the trust or restrictive period, but the Secretary of the Interior may, in his discretion, cause a patent in fee to be issued to the devisee or devisees.

[For other cases, see Indians, VIII. in Digest

Sup. Ct. 1908.]

[No. 244.]

Argued April 20, 1921. 1921.

APPEAL from the United States CirCourt of Appeals for the Eighth Circuit to review a decree which affirmed a decree of the District Court for the Eastern District of Oklahoma, dismissing the bill in a suit to establish the ownership of plaintiff, as surviving husband, in the property of his deceased wife, an Indian allottee, and to declare void her will. Affirmed.

-

See same case below, C. C. A. 261 Fed. 309.

The facts are stated in the opinion. Ewert argued the cause and filed a brief Messrs. Henry C. Lewis and Paul A. for appellant:

As long as restrictions have not been removed, the allotment is subject to the plenary power and control of Congress.

Marchie Tiger v. Western Invest. Co. 221 U. S. 286, 55 L. ed. 738, 31 Sup. Ct. Rep. 578; Walker v. Brown, 43 Okla. 144, 141 Pac. 681.

When restrictions are removed, the suballotment automatically becomes ject to state law.

Dickson v. Luck Land Co. 242 U. S. 371, 61 L. ed. 371, 37 Sup. Ct. Rep. 167; United States v. Waller, 243 U. S. 452, 463, 61 L. ed. 843, 847, 37 Sup. Ct. Rep. 430; Brock v. Keifer, 59 Okla. 5, 157 Pac. 89.

The state law of descent and distribution applies to intestate allottees. Jefferson v. Fink, 247 U. S. 288, 62 L. ed. 1117, 38 Sup. Ct. Rep. 516.

The Interior Department, in administering intestate allotments, applies every marital allowance provided by the laws of the various states, including dower, curtesy, and homestead rights. So do the courts.

Beam v. United States, 89 C. C. A. 240, 162 Fed. 260.

Congress has so far adopted the state substantive law generally that the only changes which take place upon removal of restrictions, and consequent subjection to state sovereignty, are taxability and power in the allottee to convey and create a lien. In all other respects the Federal legislation adopts the state law, or is of a protective or administrative character.

Jefferson v. Fink and Beam v. United States, supra.

Where the adopting statute makes no reference to any particular act, by its title or otherwise, but refers to the general law regulating the subject in hand, the reference will be regarded as includDecided May 16, ing not only the law in force at the time of the adopting act, but also that in

force when the action is taken or the | to determine heirs, its finding was coram proceeding resorted to.

2 Lewis's Sutherland, Stat. Constr. 2d ed. p. 789.

When the reference is not to a particular law, the act becomes a rule of future conduct, to be found when needed by reference to the law governing such cases at the time when the rule is invoked.

Gaston v. Lamkin, 115 Mo. 33, 21 S. W. 1100; Culver v. People, 161 Ill. 97, 43 N. E. 812.

If in a statute there is neither ambiguity nor room for construction, the intention of the legislature must be held free from doubt. The question as to what the framers of the statute would have done had it been in their minds that a case like the one here under consideration would arise is not the point in dispute. The inquiry is as to what in fact they did enact; possibly without anticipating the existence of such facts. Wall v. Pfanschmidt, 265 I. 180, L.R.A.1915C, 328, 106 N. E. 788, Ann. Cas. 1916A, 674; United States v. Wiltberger, 5 Wheat. 76, 5 L. ed. 37.

Knowledge of the principles of statutory law must be imputed to the legislature.

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Statutes of wills, absolute on their face, have always been construed to save by implication the marital portion which would descend in case of intestacy.

14 Cyc. 62, B, 69, ¶ 7, p. 70; 40 Cyc. 1057, E; Smoot v. Heyser, 113 Ky. 81, 67 S. W. 21; Doyle v. Doyle, 50 Ohio St. 330, 34 N. E. 166; Sears v. Sears, 121 Mass. 267; Re Harris, 2 Connoly, 4, 20 N. Y. Supp. 68.

If the Department had no jurisdiction

non judice, and therefore of no weight here. In any event, it is only in case of ambiguity and doubt that it has any weight at all (Swift & C. & B. Co. v. United States, 105 U. S. 691, 26 L. ed. 1108); and where one of the parties invested money on the strength of the departmental decision (Studebaker v. Perry, 184 U. S. 258, 46 L. ed. 528, 22 Sup. Ct. Rep. 463).

Even if the Department had power to determine heirships, there is ample authority for jurisdiction here.

Johnson v. Towsley, 13 Wall. 72, 20 L. ed. 485; Gegiow v. Uhl, 239 U. S. 3, 60 L. ed. 114, 36 Sup. Ct. Rep. 2; Decatur v. Paulding, 14 Pet. 497, 10 L. ed. 559; Warren v. Van Brunt, 19 Wall. 646, 22 L. ed. 219; Shepley v. Cowan, 91 U. S. 330, 23 L. ed. 424; Moore v. Robbins, 96 U. S. 530, 24 L. ed. 848; Northern P. R. Co. v. Colburn, 164 U. S. 383, 41 L. ed. 479, 17 Sup. Ct. Rep. 98; Menotti v. Dillon, 167 U. S. 703, 42 L. ed. 333, 17 Sup. Ct. Rep. 945; Wisconsin C. R. Co. v. Forsythe, 159 U. S. 46, 40 L. ed. 71, 15 Sup. Ct. Rep. 1020.

For cases involving Indian heirships. and allotments, see Hallowell v. Commons, 127 C. C. A. 343, 210 Fed. 793; Hy-Yu-Tse-Mil-Kin v. Smith, 55 C. C. A. 216, 119 Fed. 114; Little Bill v. Swanson, 64 Wash. 650, 117 Pac. 485; McKay v. Kalyton, 204 U. S. 458, 51 L. ed. 566, 27 Sup. Ct. Rep. 346; Ross v. Day, 232 U. S. 110, 58 L. ed. 528, 34 Sup. Ct. Rep. 233; Harnage v. Martin, 242 U. S. 386, 61 L. ed. 382, 37 Sup. Ct. Rep. 148; Johnson v. Riddle, 240 U. S. 467, 60 L. ed. 752, 36 Sup. Ct. Rep. 393; United States v. Wildcat, 244 U. S. 111, 61 L. ed. 1024, 37 Sup. Ct. Rep. 561.

Of course, Congress cannot impair the jurisdiction by providing that the Department's decision is final (Johnson v. Towsley, supra); or conclusive (Gegiow v. Uhl, supra); or that the Department's jurisdiction is exclusive (Wallace v. Adams, 204 U. S. 415, 51 L. ed. 547, 27 Sup. Ct. Rep. 363).

Mr. A. C. Wallace argued the cause and filed a brief for appellees:

Congress did not adopt § 8341 of the Compiled Laws of the state of Okla

homa of 1910.

Walker v. Brown, 43 Okla. 144, 141 Pac. 681; Brock v. Keifer, 59 Okla. 5, 157 Pac. 89.

It was wholly within the power of Congress to say under what terms and under what conditions the Quapaw Indian might will his land. and in the

exercise of its jurisdiction it was competent for Congress to further provide for the supervision of some court or officer to approve and carry the will into effect.

Jefferson v. Winkler, 26 Okla. 662, 110 Pac. 755.

If we should follow the contention of appellant in this case, and this court were to hold that § 8341 was a limitation on the Act of Congress of February 14, 1913, the authority of the Secretary of the Interior to approve the will is abridged and limited, and conditioned upon said will being made in compliance with said section and properly executed, the policy of the government in dealing with and protecting its Indian wards is thereby hampered and impaired, and the authority of Congress to pass legislation in the interest of the Indian as a dependent people is destroyed, by the legislature of the state of Oklahoma.

Marchie Tiger v. Western Invest. Co. 221 U. S. 286, 55 L. ed. 738, 31 Sup. Ct. Rep. 578.

Special Assistant to the Attorney General Garnett, by special leave, argued the cause, and, with Special Assistant to the Attorney General Underwood and Solicitor General Frierson, filed a brief

for the United States.

[320] Mr. Justice McKenna delivered the opinion of the court:

Appellant brought this suit to have himself declared to be owner of an undivided one-third interest in all lands (they are described in the bill) and other property of which his wife, Fannie Crawfish Blanset, died seised or possessed, free and clear of all claims and demands of the appellees. And to declare void a will of his wife and its approval by the Secretary of the Interior. The basis of the bill is the contention that, under the laws of Oklahoma, no man and no woman, while married, shall bequeath more than two thirds of his or her property away from the other, and that the prohibition extends to an Indian woman's allotment, under acts of Congress, of restricted lands.

The bill is quite involved and contains many repetitions. Its ultimate propositions may be paraphrased as follows: Appellant is a white man, and his wife, Fannie Crawfish Blanset, was an Indian woman of the Quapaw tribe. She was an allottee of the lands herein involved, which were restricted lands, so called; that is, nonalienable for the period of twenty-five years. She made a will, de

vising her land to appellees, they being her children or grandchildren, and bequeathed to them also all trust funds which might be held by the United States for her. The will was approved by the Assistant Commissioner of Indian Affairs and by the Assistant Secretary of the Interior under and in pursuance of the provisions of an Act of Congress of June 25, 1910 (36 Stat. at L. 855, 859, chap. 431), as amended February 14, 1913 (37 Stat. at L. 678, chap. 55, Comp. Stat. § 4228, 3 Fed. Stat. Anno. 2d ed. p. 855), and filed in the office of the Secretary of the Interior, where such wills are properly and lawfully filed, and are of record.

Congress, by the foregoing and other legislation, provided "that the state laws of descent should apply to [321] Indian allotments and to interests therein, and that the Secretary of the Interior should be governed by the same." And that "§ 8341 of the Code of Oklahoma created an indefeasible descent in favor of the husband, and that the will of a wife which attempts to will away from her husband more than two thirds of her estate is therefore void, and of no effect to the extent to which it attempts so to do, and that in such case the husband takes by descent to the same extent." By that section appellant is made heir to property worth $40,000 of the estate of his wife, while the will gives him only $5; that the will is null and void, and that, to the extent of his heirship, his wife died intestate, and that he is an heir at law of one third of her estate; that, notwithstanding § 8341, each of the appellees is claiming to be the owner of a one-third undivided interest in and to all of the remaining restricted lands, inherited or otherwise, of which Fannie Crawfish Blanset died possessed, and of a one-third interest in all trust funds held by the United States to her use and benefit, such claims being mad under and by virtue of the will.

There is an allegation in the bill to the effect that appellant's wife left little or no personal property except moneys held in trust for her from the sale of inherited Indian lands by the United States; that by § 8419 dower and curtesy were abolished, and by § 8418 it was provided as follows:

"If the decedent leave a surviving husband or wife, and only one child, or the lawful issue of one child [the estate must be distributed] in equal shares to the surviving husband, or wife and child, or issue of such child. If the decedent leave a surviving husband or wife, and

more than one child living, or one child | Arkansas was made applicable to the living, and the lawful issue of one or Indian Territory May 2, 1890 (26 Stat. more deceased children, one third to the at L. 94, 95, chap. 182), and extended in surviving husband or wife, and the re- its application in 1904 (April 28, 1904, mainder in equal shares to his children 33 Stat. at L. 573, chap. 1824); and while and to the lawful issue of any deceased at those times "testamentary power had child by right of representation." And not been given to restricted allottees by § 6328 [322] it is provided: [the property in this case was a restricted allotment, and the period of restriction had not expired] of any tribe, but property descended, as to all tribes, wherever located, according to the local law," yet when Oklahoma was admitted as a state, the Arkansas law was superseded by the Oklahoma Code. For this Jefferson v. Fink, 247 U. S. 288, 62 L. ed. 1117, 38 Sup. Ct. Rep. 516, is adduced.

"Upon the death of either husband or wife, the survivor may continue to possess and occupy the whole homestead, which shall not in any event be subject to administration proceedings, until it is otherwise disposed of according to law; and upon the death of both husband and wife the children may continue to possess and occupy the whole homestead until the youngest child becomes of age."

55, Comp. Stat. § 4228, 3 Fed. Stat. Anno. 2d ed. p. 855), is opposed. Section 2 of that act is as follows:

But against the contention and concluIt is alleged "that § 1 of the Act of sion, the Act of Congress approved FebJune 25, 1910, of which the Act of February 14, 1913 (37 Stat. at L. 678, chap. ruary 14, 1913, is amendatory, is as follows: That when any Indian to whom an allotment of land has been made, or may hereafter be made, dies before the expiration of the trust period and before the issuance of a fee-simple patent, without having made a will disposing of said allotment as hereinafter provided, the Secretary of the Interior, upon notice and hearing, under such rules as he may prescribe, shall ascertain the legal heirs of such decedent.""

On motion of defendants (appellees here) the bill was dismissed for want of equity. The ruling was affirmed by the circuit court of appeals.

"Sec. 2. That any persons of the age of twenty-one years having any right, title, or interest in any allotment held under trust or other patent containing restrictions on alienation or individual Indian moneys or other property held in trust by the United States shall have the right prior to the expiration of the trust or restrictive period, and before the issuance of a fee-simple patent or the removal of restrictions, to dispose of such property by will, in accordance with regulations to be prescribed by the The case is not in broad compass, and Secretary of the Interior: Provided, presents as its ultimate question the ac- however, That no will so executed shall cordance or discordance of the laws of be valid or have any force or effect unCongress and the laws of the state; and less and until it shall have been apwhether there is accordance or discord-proved by the Secretary of the Interior: ance depends upon a comparison of § 8341 of the Oklahoma Code, upon which appellant relies, and the acts of Congress referred to in the bill, and what was done under them.

That comparison we proceed to make. By 8341 of the Code, "Every estate and interest in real or personal property to which heirs, husband, widow, or next of kin might succeed, may be disposed of by will; Provided, that no marriage contract in writing has been entered into between the parties; no man while married shall bequeath more than two thirds of his property away from his wife, nor shall any woman while married bequeath [323] more than two thirds of her property away from her husband;

The provision of the Code is determinative, appellant contends, because the law of "descents and distributions" of

Provided further, That the Secretary of the Interior may approve or disapprove the will either before or after the death of the testator, and in case where a will has been approved and it is subsequently [324] discovered that there has been fraud in connection with the execution or procurement of the will the Secretary of the Interior is hereby authorized within one year after the death of the testator to cancel the approval of the will, and the property of the testator shall thereupon descend or be distributed in accordance with the laws of the state wherein the property is located: Provided further, That the approval of the will and the death of the testator shall not operate to terminate the trust or restrictive period, but the Secretary of the Interior may, in his discretion, cause the lands to be sold and the money derived therefrom, or so much thereof as

may be necessary, used for the benefit of the heir or heirs entitled thereto, remove the restrictions, or cause patent in fee to be issued to the devisee or devisees, and pay the moneys to the legatee or legatees either in whole or in part from time to time as he may deem advisable, or use it for their benefit: Provided also, That sections one and two of this act shall not apply to the Five Civilized Tribes or the Osage Indians." The Secretary of the Interior made regulations which were proper to the exercise of the power conferred upon him and the execution of the act of Congress, and it would seem that no comment is necessary to show that § 8341 is excluded from pertinence or operation.

But this conclusion counsel resists. He says: "As long as restrictions have not been removed, the allotment is subject to the plenary power of Congress;" but "when restrictions are removed, the allotment automatically becomes subject to the state law." That is, and to make application to the pending case, at the instant his wife died, appellant became heir at law to one third of her property under the laws of the state. Appellant's reasoning is direct and confident. By his wife's death, he asserts, her allotment was emancipated from government control; that under § 8341 her will was void; she, therefore, [325] died intestate, and he became her heir of an undivided one third of her allotment under § 8418, set out in the bill.

And the further contention is that 8341 is continued because the act of Congress does not expressly provide how the land shall be devised, and because it recognizes that the state laws of descent are applicable in case the Secretary disapproves the will after the death of the testator.

If the first contention be true, the act of Congress is reduced to impotence by its contradictions. According to the contention, it permits a will, and immediately provides for its defeat at the very instant it is to take effect and can only take effect. Such antithetical purpose cannot be imputed to Congress, and it is repelled by the words of § 2. They not only permit a will, but define its permissible extent, excluding any limitation or the intrusion of any qualification by state law. They provide that one having an interest "in any allotment held under trust or other patent containing restrictions on alienation . . . shall have the right prior to the expiration of the trust or restrictive period, and before

the issuance of a fee-simple patent or
the removal of restrictions, to dispose
of such property [italics ours] by will
in accordance with regulations to be pre-
scribed by the Secretary of the Interior."
And it is further provided "that the
Secretary of the Interior may approve
or disapprove the will either before or
after the death of the testator," and
that neither circumstance shall "operate
to terminate the trust or restrictive pe-
riod, but the Secretary of the Interior
may, in his discretion
patent in fee to be issued to the devisee
or devisees."

cause

To the other contention (if it may be called such) the answer is that the contingency (disapproval of the will after the death of the testator) did not occur; and besides, there were alternatives to the contingency, irreconcilable with the disposition of the property under the state Code.

[326] The act of Congress is careful of conditions. In the first instance it is concerned with testacy; that is, the existence of a will. A will existing, the allotment is disposed of by it. A will not existing, either not executed or, if executed, canceled, there is intestacy, and the state laws of descent and distribution obtain. In the present case there is a will and it is uncanceled; and, therefore, the contention of appellant is untenable. And it will also be observed by recurring to the act of Congress, powers are invested in the Secretary which preclude interference or control by anybody, or right in anybody to have canceled "the patent in fee" which is empowered "to be issued to the devisee or devisees," a right appellant asserts in the present case. In a word, the act of Congress is complete in its control and administration of the allotment and of all that is connected with or made necessary by it, and is antagonistic to any right or interest in the husband of an Indian woman in her allotment under the Oklahoma Code. And we agree with the court of appeals that the act of Congress was the prompting of prudence to "afford protection to dependent and natural heirs against the waste of the estate as the result of an unfortunate marriage, and enforced inheritance by state law." And there can be no doubt that the act was the suggestion of the Interior Department, and its construction is an assistant, if not demonstrative criterion, of the meaning and purpose of the act. Swigart v. Baker, 229 U. S. 187, 57 L. ed. 1143, 33 Sup. Ct. Rep. 645; Jacobs v. Prichard, 223 U. S.

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