CHAPTER 22 CONVEYANCE OF LANDS OF MINORS UPON ORDER OF COUNTY COURTS OF THE STATE OF OKLAHOMA § 172. County courts of the State of Oklahoma successors to the county courts of the Territory of Oklahoma and the United States courts in the Indian Territory. 173. 174. Distribution of probate jurisdiction. The Act of May 27, 1908, relating to the exercise of probate jurisdiction. 175. County courts in the exercise of probate authority are courts of general jurisdiction. 182. 183. Appointment of guardians for incompetent and insane per sons. Bond of guardian. Partition of real estate. Sale of real estate of a minor-When authorized by statute. 184. Petition for sale of the real estate of a minor. 185. Hearing and order to show cause. 186. Service of notice of hearing on order to show cause prior to June 17, 1910. 187. Service of notice of hearing of order to show cause subsequent to June 17, 1910. 188. Statutory provisions relating to sale of real estate of decedent to control where not otherwise provided. Order of sale. 189. 190. Notice of sale prior to June 17, 1910. 191. Notice of sale subsequent to June 17, 1910. 193. 194. 195. The real estate of a minor may, upon order of the county court, be sold by his guardian at private sale. Proof of service. Return of sale and proceedings thereon prior to June 17, 1910. 196. Return of sale subsequent to June 17, 1910, and proceedings 202. 203. 204. Oil and gas leases. Oil and gas-Leases for-Of lands of minors under Act of Collateral attack on sale. Guardianship, how terminated. § 172. County courts of the state of Oklahoma successors to the county courts of the territory of Oklahoma and the United States courts in the Indian Territory.-Under the terms of the Enabling Act and the acceptance thereof in the Constitution of the state of Oklahoma, the statutes of the territory of Oklahoma relating to probate jurisdiction and procedure, except where modified by the Constitution, were extended over and made applicable to the state of Oklahoma and the county courts of the state of Oklahoma became the successors of the county courts of the territory of Oklahoma as to their probate jurisdiction and the successors to the United States courts in the Indian Territory as to probate cases pending therein.1 The statutes of the territory of Oklahoma, as extended over the state of Oklahoma, authorized the sale, upon order of the county courts, of the lands of minor Indians, except where prohibited or limited by federal legislation. Wherever restrictions upon alienation existed the lands were not subject to sale by order of the county courts. Where the restrictions upon alienation had been removed, or expired, or ceased to exist for any other reason, the lands of the minor became subject to sale and disposition through the county courts of the state of Oklahoma, in the exercise of their probate jurisdiction. § 173. Distribution of probate jurisdiction.-Section 19 of the Enabling Act provides that the courts of original jurisdiction of such state shall be deemed to be the successor of all courts of original jurisdiction of such territories, and as such shall take and retain the custody of all records, books, journals and files of such courts, except in cases transferred therefrom as therein provided. Section 3 of the Act of March 4, 1907 (34 Stat. 1287, c. 2911), amending the Enabling Act, provides that "all causes, proceedings, and mat 1 Eaves v. Mullen, 25 Okl. 679, 107 Pac. 433; MaHarry v. Eatman, 29 Okl. 46, 116 Pac. 935; Henry Gas Co. v. United States, 191 Fed. 132, 111 C. C. A. 612. ters, civil or criminal, pending in the district courts of Oklahoma Territory, or in the United States courts in the Indian Territory, at the time said territories become a state, not transferred to the United States Circuit or District Courts in the state of Oklahoma, shall be proceeded with, held, and determined by the courts of said state, the successors of said district courts of the territory of Oklahoma, and the United States courts in the Indian Territory." Section 23 of the schedule to the Oklahoma Constitution provides: "When this Constitution shall go into effect, the books, records, papers, and proceedings of the probate court in each county, and all causes and matters of administration and guardianship, and other matters pending therein, shall be transferred to the county court of such county, except of Day county, which shall be transferred to the county court of Ellis county, and the county courts of the respective counties shall proceed to final decree or judgment, order, or other termination in the said several matters and causes as the said probate court might have done if this Constitution had not been adopted. The district court of any county, the successor of the United States court for the Indian Territory, in each of the counties formed in whole or in part in the Indian Territory, shall transfer to the county court of such county, all matters, proceedings, records, books, papers, and documents appertaining to all causes or proceedings relating to estates: Provided, that the Legislature may provide for the transfer of any of said matters and causes to another county than herein prescribed." By section 12, art. 7, of the Constitution, original and exclusive jurisdiction in probate matters is conferred upon the county courts. It is therefore the duty of any district court in that part of the state carved out of the Indian Territory to transmit all matters, proceedings, records, and books, pertaining to all causes or proceedings relating to estates, that came to it from the United States cour's in the Indian Territory, to the county court of the county in which the United States court where such proceedings were pending had been located; the distribution of such causes, matters, and proceedings to be made to other counties in which they would have been instituted under the law if statehood had been in existence at the time of their institution, as the Legislature might direct. Pursuant to the constitutional provision, the Legislature of Oklahoma enacted a law for the distribution of causes to the various county courts, and such law was subsequently amended to provide, in substance, that any matter or proceeding, including probate matters, might, on petition of any person having a substantial interest therein, filed within sixty days after the approval of the act, be transferred to the court of the county or district in which the same would have been properly instituted or triable had such suit or proceeding been commenced after the admission of the state into the Union. It was held, in interpreting this statute, that it did not oust the court in which a probate proceeding was pending, and which was subject to transfer under said act upon application, of jurisdiction to proceed therewith in the absence of an application properly presented. It was further held that the limitation of sixty days contained in said act was directory and not mandatory, and jurisdiction to transfer such proceedings was not lost because the application for such transfer or the order transferring the same was made subsequent to the expiration of the sixty days therein provided. In other words, the county court to which the probate proceedings were first transferred had the right to proceed with the exercise of full and complete probate jurisdiction until such time as the cause was transferred on proper application to the county court of the county in which the proceeding would have been instituted if statehood had existed at the time of its institution.2 2 Eaves v. Mullen, 25 Okl. 679, 107 Pac. 433; MaHarry v. Eatman, 29 Okl. 46, 116 Pac. 935; Davis v. Caruthers, 22 Okl. 323, 97 Pac. 581; Burnett v. Durant, 28 Okl. 552, 115 Pac. 273; Henry Gas Co. v. United States, 191 Fed. 132, 111 C. C. A. 612. § 174. The Act of May 27, 1908, relating to the exercise of probate jurisdiction.-Section 6 of the Act of May 27, 1908, provides: "That the persons and property of minor allottees of the Five Civilized Tribes shall, except as otherwise specifically provided by law, be subject to the jurisdiction of the probate courts of the state of Oklahoma." This provision is a very broad and comprehensive one, and there is no other provision of any federal statute remaining in force in the state of Oklahoma vesting jurisdiction over the persons or estates of minor Indians located within the state of Oklahoma in any court or tribunal other than the county courts, and the judges thereof, of the various counties of the state of Oklahoma. It is true that in certain cases the approval of conveyances made through the probate court must be had by the Secretary of the Interior before such conveyances become effective. This is true, however, only as to those cases in which there are positive statutory provisions requiring such approval, and the exercise by the county court of its probate jurisdiction is, in most cases, a necessary step in the perfecting of the conveyance, lease, or other matter, requiring the Secretary's approval. A very similar provision is found in section 3 of the Act of April 18, 1912 (37 Stat. 86, c. 83) relating to the Osages. § 175. County courts in the exercise of probate authority are courts of general jurisdiction.-Jurisdiction of the estates of minors and decedents is usually termed "probate jurisdiction." In the state of Oklahoma probate jurisdiction is vested in the county courts, and the judges thereof, by the Constitution. Such courts, coextensive with the county, have original jurisdiction in all probate matters, but may not order or decree the partition or sale of real estate not arising under their probate jurisdiction. Such courts have the general jurisdiction of a probate court and are authorized to probate wills, appoint guardians of minors, idiots, lunatics, persons non compos mentis, and common drunkards, to grant letters testamentary and of admin |