1. Case held reviewable by certiorari and not by writ of error.
P. 271 U. S.
2. Under the Act of April 26, 1906, permitting members of the
Five Civilized Tribes to will their property, but providing
"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,"
to give validity to such a will, it was necessary not only that
it be in fact acknowledged by the testator before the officer, but
that the officer place a certificate of such acknowledgment upon
the will as an essential part of the acknowledgment itself. P.
271 U. S.
3. Parol evidence inadmissible to supply lack of such
106 Okla. 208
Certiorari to a judgment of the Supreme Court of Oklahoma which
reversed a judgment upholding an instrument as the will of a
deceased full-blood Chickasaw Indian devising his surplus allotment
away from his wife and children. A writ of error was also taken,
and is dismissed.
MR. JUSTICE SANFORD delivered the opinion of the Court.
This case involves a single question relating to the
construction and effect of § 23 of the Act of April 26, 1906,
Page 271 U. S. 485
c. 1876 *
, dealing with
the Five Civilized Tribes. This reads:
"Every person of lawful age and sound mind may by last will and
testament devise and bequeath all of his estate, real and personal,
and all interest therein: Provided,
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 of the Indian
Territory, or a United States commissioner."
The subject matter of the controversy, which arose in the course
of a proceeding instituted in a local court of Oklahoma to
foreclose a mortgage, is a part of a surplus allotment of 160 acres
out of tribal lands made in 1904 to Frazier McLish, a full-blood
Chickasaw Indian and held by him subject to restrictions against
alienation. In July, 1906, he executed a will by which he
bequeathed one dollar to his wife and each of his children, and
devised all the residue of his property, including this allotment,
to his sister. In 1907, McLish having died, the will was probated
and recorded, the only endorsement which it bore being the
"Approved by me July 9, 1906. Thomas N. Robnett, U.S.
Commissioner for the Southern District, Indian Territory, First
Commissioner's District, in accordance with the Act of Congress of
April 26, 1906. (Seal)."
For present purposes, it suffices to say that the proceeding in
the district court involved a controversy as to the title to part
of this allotment, arising between J. A. White, to whom it had been
conveyed by the devisee, and S. H. Davis, to whom White had given a
mortgage, on the one side, and the widow and children of the
testator, on the other side. White and Davis claimed that the will
was valid and had passed title to the devisee, and the widow and
children claimed that it was invalid, since it had not
Page 271 U. S. 486
been acknowledged before a commissioner or judge as required by
the Act of 1906, and that the title to the allotment had descended
On the trial, the United States Commissioner testified that, at
the time he approved the will, the testator had appeared before him
and acknowledged its execution for the purposes therein mentioned,
but that, by inadvertence, the certificate of such acknowledgment
had been omitted. The court, in view of this evidence, held that,
as the will had been in fact acknowledged before the Commissioner,
it was valid and vested title to the allotment in the devisee, and
gave judgment accordingly. On appeal, this was reversed by the
Supreme Court of Oklahoma, which held that parol testimony was
inadmissible to supply the lack of a certificate of acknowledgment,
and that, under the Act of 1906, the will was invalid. 106 Okl.
The case is now before us on a writ of error, which was allowed
in March, 1925, and a petition for a writ of certiorari, which was
postponed to the hearing on the merits. The writ of error must be
dismissed under the Jurisdictional Act of 1916, and the writ of
certiorari is granted.
Davis and White do not deny that the will disinherited the
testator's wife and children, Re Byford's Will,
159, 162, and that it was invalid unless acknowledged before the
Commissioner, as well as approved by him. Their contention is,
that, under a proper construction of § 23 of the Act of 1906, where
a full-blood Indian who devises his lands to the exclusion of his
wife and children, appears before a Commissioner and acknowledges
the document presented to be his will, "it is the fact of such
acknowledgment by said testator, and not any certificate by the
officer, which gives validity to the will," and they expressly
concede that "if, on the other hand, Congress intended to require
that a certificate of acknowledgment be placed on the will itself
by the officer," they cannot prevail.
Page 271 U. S. 487
Construing § 23 of the Act in the light of its manifest purpose,
we think that Congress intended that, to give validity to such a
will, it was necessary not only that it be in fact acknowledged by
the testator before the officer, but that the officer place a
certificate of such acknowledgment upon the will, as an essential
part of the acknowledgment itself.
Prior to the Act of 1906, Indians of the Five Civilized Tribes
had no power to dispose of their restricted lands by will.
Taylor v. Parker, 235 U. S. 42
Blundell v. Wallace, 267 U. S. 373
267 U. S. 374
And, in giving them generally such power by § 23 of the Act, it was
specifically provided that no will of a full-blood Indian devising
real estate and disinheriting his parent, spouse or children,
should be valid "unless acknowledged before and approved by a judge
of a United States court . . . or United States Commissioner."
It is clear that it was intended by this proviso to prevent a
full-blood Indian from being overreached and imposed upon, and
induced for an inadequate consideration or by trickery, to deprive
his heirs of their inheritance, and that, to this end, a will
devising his land to other persons should not be valid unless
acknowledged before and approved by a judicial or
-judicial officer of the United States. To make
certain of this, the officer was not to approve the will unless the
testator appeared before him in person and acknowledged its due
execution, and, upon the examination of the testator, the will
appeared to be of such a character and based upon such
consideration as to warrant its approval. Plainly, it was not
intended that such acknowledgment and approval should be a
perfunctory matter. And as the will when probated and recorded
would be a muniment of title to the land, necessarily a certificate
both of the acknowledgment and the approval should appear upon it.
We cannot think that Congress intended that in a matter of this
solemnity and importance, involving the recorded
Page 271 U. S. 488
title to land, the effect of a will, which when probated and
recorded bore no certificate of the acknowledgment or approval
essential to its validity, should thereafter rest in parol, subject
to all the uncertainty that would follow if its validity could be
established -- when the lips of the testator were closed -- by
parol evidence as to the fact of acknowledgment or approval. This
would destroy the certainty which is essential in muniments of
title appearing upon the public records. If this were possible, the
subsequent establishment of the validity of the will would largely
depend upon the lapse of time before it was brought into
litigation, and the availability, at that time, of evidence to
establish or to contradict a claim that it had in fact been
acknowledged or approved, and where portions of the land had been
conveyed by the devisee to different persons, the result of suits
involving the validity of the will, might often depend upon the
weight attached by the courts to diverse evidence in different
suits, and lead to judgments establishing the validity of the will
as to the purchaser of one portion of the land, and its invalidity
as against another.
Clearly, we think, Congress did not contemplate such a
disastrous result, but, in granting by the Act to a full-blood
Indian under its guardianship the power to dispose of his
restricted land by will, intended that a will disinheriting those
to whom his land would otherwise descend, should be valid only when
the facts of acknowledgment and approval should both be certified
by the officer on the will, and appear upon it when probated and
placed of record.
We conclude here that the will, by reason of the lack of any
certificate of acknowledgment, was not "acknowledged before" the
Commissioner within the meaning of the Act, and, being therefore
invalid, did not pass title to the allotment to the devisee. The
judgment is accordingly
* 34 Stat. 137, 145.