Tayrien's Estate, Matter of

Tayrien's Estate, Matter of
1980 OK 8
609 P.2d 752
Decided: 01/15/1980
Supreme Court of Oklahoma

IN THE MATTER OF THE ESTATE OF THOMAS TAYRIEN, DECEASED. JOHN J. McGRATH, III, APPELLANT,
v.
MAUDIE J. McANELLY, ALBERTY PEARMAN AND ELMER C. TAYRIEN, APPELLEES.

CERTIORARI TO THE COURT OF APPEALS, DIVISION II.

¶0 Court of Appeals affirmed a judgment of the District Court of Osage County, Oklahoma, Honorable Mermon H. Potter, Trial Judge, in favor of heirs of deceased Osage Indian. These heirs had petitioned to reopen deceased's estate in order to distribute one and one-sixth headright claimed to have been omitted at probate of deceased's will some 42 years earlier. OPINION OF COURT OF APPEALS VACATED: TRIAL COURT REVERSED.

Robert W. Amis, Oklahoma City, for appellant; pierce, Couch, Hendrickson, Johnston & Baysinger, Oklahoma City, of counsel.

Matthew J. Kane, for appellees; Kane, Kane, Wilson & Mattingly, Pawhuska, of counsel.

DOOLIN, Justice:

[609 P.2d 753]

¶1 This is a case of first impression dealing with the construction of a bequest in the will of an Osage Indian. Thomas Tayrien (Testator), a three-eighths Osage Indian, was born in 1865. At his death in 1930, he owned one and one-sixth Osage Indian headright. His wife, Emily, offered the will for probate. The will made several specific bequests including the following paragraph:

"3. I give, devise and bequeath out of my oil and gas leases $10 out of each quarterly payment to each of my following children; James T.; William D.; George A.; Andrew J.; Paul R.; John C.; and Maudie J. Vulgamott; the balance of this oil and gas income to be equally distributed each quarter between my wife Emily Tayrien and my daughter Madeline L. Tayrien."

There was no residuary clause. The estate was closed in 1933, distributing his estate under the will.

¶2 In 1975, some 42 years later, a daughter and two grandchildren of testator petitioned the district court to appoint an administrator with will annexed, seeking a supplemental decree alleging the 1933 decree did not fully distribute the estate in that the one and one-sixth headright was not distributed.

¶3 The 1933 decree of distribution made the following finding:

"That the said Thomas Tayrien was a member of the Osage Tribe of Indians of less than one-half blood; that at the time of his death he was the owner of one and one-sixth (1 1/6) Osage Indian headrights or interest in and to the property rights of the Osage tribe of Indians; that the said Thomas Tayrien left an instrument as his last Will and Testament, which was duly and regularly submitted to the Secretary of the Interior and approved by said Secretary of Interior and admitted to probate in this court;"

[609 P.2d 754]

The one and one-sixth headright was distributed thus:

"That by the terms of said instrument Ten ($10.00) Dollars out of each quarterly payment of the oil and gas leases, (to-wit: Ten [$10.00] Dollars out of each quarterly payment of the fund credited to the decedent's one and one-sixth (1 1/6) Osage headright) be paid to the following children of said deceased:

James T. Tayrien;

William D. Tayrien;

George A. Tayrien;

Andrew J. Tayrien;

Paul R. Tayrien;

John C. Tayrien;

Maudie J. Vulgamott;

and that the balance of this oil and gas income (to-wit, the balance of each quarterly annuity payment of the funds credited to the decedent's one and one-sixth [1 1/6] Osage headrights) be equally distributed each quarter to Emily Tayrien and Madeline L. Tayrien, now Barnes."

The decree was final and unappealed.

¶4 The trial court allowed the estate to be reopened and appointed petitioners as administrators. Because the will did not specifically mention testator's headright, the trial court declared the one and one-sixth headright passed by intestate succession to petitioners, testator's heirs, according to the laws of the State of Oklahoma. The Court of Appeals affirmed. We granted certiorari under 12 O.S. 1978 Supp. Ch. 15, App. 3, Rule 3.13, subd. A(1).

¶5 At the time of the passage of the Osage Allotment Act of June 28, 1906, 34 Stat. 539, (the Act), the Osage Indians were occupying, as a tribe, their reservation in Oklahoma containing approximately a million and a half acres of land purchased from the Cherokees. At the same time the United States held in trust for the Osage, a fund of over eight million dollars received under various treaties as compensation for the relinquishment of other lands. Prior to the Act, title to the lands and these funds remained in the tribe. By the Act, the lands were divided among the 2,229 members of the tribe with certain restrictions retained.

¶6 The Act provided all funds due the Osage Tribe would be credited to the individual members on a basis of pro rata division among the members or their heirs. This pro rata interest in the trust fund is a headright.

¶7 Each original allottee received one headright. A headright has been several times defined but basically it consists of two parts: 1) the right to receive trust funds arising largely from mineral income, [609 P.2d 755] at the end of trust period, and 2) during such period to participate in the distribution of bonuses and royalties arising from the mineral estate plus accrued interest on the trust fund.

¶8 Congress has never relinquished control of Indian headrights, and the sale, encumbrance or alienation thereof is only authorized pursuant to acts of Congress. Thus any right of an heir or legatee to share in the corpus is dependent upon the wishes of Congress.

¶9 Testator could not dispose of his headright except by will which as in all cases must be approved by the Secretary of the Interior.

¶10 No life estate was created by the will. Emily and Madeline were absolute legatees. The only remaining question is what did they take. Was the headright divisible into income and the corpus?

¶11 It is presumed in Oklahoma, a testator intends to dispose of his entire estate and avoid intestacy in whole or in part.

¶12 There is little doubt this is still the majority rule in the United States. In City of Austin v. Austin National Bank of Austin, 503 S.W.2d 759 (Tex. 1974) the Texas Supreme Court citing 4 Page, Law of Wills § 33.40 stated:

"Prima facie, a gift of income arising from personalty without any restriction as to the time for which such income is to be paid and without any disposition of the corpus of the fund, is an absolute gift of such corpus."

It further stated:

"A gift over, after the determination of a prior interest, shows that testator did not intend that the corpus should pass to the first taker; but if he gives the income, after the interest of the first taker has (been) determined to another without any limit on the time for which he is to receive the income, the subsequent taker is given the corpus."

¶13 Such is exactly the case here. Testator bequeathed $10.00 of income out of each quarterly payment to each of seven children. He gave the balance of the income to Emily and Madeline without any limit on the time for which they were to receive it. Under this rule Emily and Madeline, in [609 P.2d 756] addition to the income, were given the corpus. In these circumstances a gift of the income from minerals vests an absolute estate in the corpus from which the income arises.

¶14 A headright is by definition a right to income from testator's interest in oil and gas leases in addition to an inchoate right to the corpus as encompassed by the definition.

¶15 All the presumptions in the will point toward an intention of the testator to bequeath the entire headright by the specific legacy here involved. Nothing in the language of the will taken as a whole indicates a contrary intention which would defeat this presumption.

¶16 We do not agree with the trial court testator died intestate as to the headright.

¶17 The 1933 decree distributed the portion of the headright in the form of income for an unlimited time. We hold this vested an absolute interest in the headright in Emily and Madeline Tayrien.

¶18 REVERSED.

¶19 LAVENDER, C.J., IRWIN, V.C.J., and WILLIAMS and SIMMS, JJ., concur.

¶20 HODGES, BARNES, HARGRAVE and OPALA, JJ., dissent.

Footnotes:

1 Both Emily and Madeline are deceased. Under Emily's will her interest in the headright (. 58333) was devised to Beatrice McManus for life, remainder to John McGrath and was distributed in this manner. McGrath is the appellant in this cause and petitioner on certiorari.

2 All restrictions were removed from Indians of less than 1/2 blood except as to the trust estate held by the federal government belonging to the tribe. Non-Indian owners may alienate headrights. See In re Irwin, 60 F.2d 495 (10th Cir. 1932); In re Thompson's Estate, 179 Okl. 240, 65 P.2d 442 (1937) cert. den. 302 U.S. 718, 58 S. Ct. 38, 82 L. Ed. 554.

3 The Act of March 3, 1921, 41 Stat. 1249 extended the trust period to 1946; the Act of March 2, 1929, 45 Stat. 1478 extended the period to 1958; the Act of June 24, 1938, 52 Stat. 1034 extended the period to 1983 and the Act of October 6, 1964, 78 Stat. 1008 extended the period indefinitely until Congress affirmatively abolishes it. See Estate of Shelton v. Oklahoma Tax Commission, 544 P.2d 495 (Okl. 1975) cert. den. 427 U.S. 904, 96 S. Ct. 3190, 49 L. Ed. 2d 1198; Denoya v. Arrington, 163 Okl. 44, 20 P.2d 563 (1932); In re Denison, 38 F.2d 662 (W.D.Okl. 1930), affmd. Quartes v. Denison, 45 F.2d 585 (10th Cir. 1930).

4 Globe Indemnity Co. v. Bruce, 81 F.2d 143 (10th Cir. 1935); Semple: Oklahoma Indian Land Titles, p. 467 (1952).

5 Taylor v. Tayrien, 51 F.2d 884 (10th Cir. 1931); In re Revard's Estate, 178 Okl. 524, 63 P.2d 973 (1936).

6 Act of Congress of April 18, 1912, 37 Stat. 86-88; Denoya v. Arrington, 163 Okl. 44, 20 P.2d 563 (1932).

7 In re Revard's Estate, supra, n. 5; In re Mose-che-he's Estate, 188 Okl. 228, 107 P.2d 999 (1940).

8 Savage v. Hill, 346 P.2d 323 (Okl. 1959).

9 We do not decide whether this would be a legal severance or address the possibility of an application of the Rule against Perpetuities.

10 See annotation at 174 A.L.R. 321, 329 and also the English cases cited therein.

11 Hyde v. Rainey, 233 Pa. 540, 82 A. 781 (1912).

12 Under the principles espoused in this opinion the interest in the headright, owned by Emily and Madeline and their heirs, is probably burdened with the initial bequest of $10.00 out of each quarterly payment due named children of testator and their heirs.