Robinson v. Long Gas Co.

TRIEBER, District Judge (after stating the facts as above). Section 30 of the act of Congress of May 2, 1890 (26 Stat. 94, c. 182), divided the Indian Territory into three judicial divisions, there being only one district for the entire territory. Section 31 of that act adopt [400] ed for the territory certain laws of the state of Arkansas, digested in Mansfield’s Digest, and among them those in relation to the administration of the estates of deceased persons and minors, and also provided that the courts of the Indian Territory should possess the powers of courts of probate under the laws of the state of Arkansas as they appear in Mansfield’s Digest. Section 32 further provides: “The word ‘county,’ as used in any of the laws of Arkansas which are put in force in the Indian Territory hy the provisions of this act, shall be construed to embrace the territory within the limits of a judicial division in said Indian Territory; and whenever in said laws of Arkansas the word ‘county’ is used, the words ‘judicial division’ may be substituted therefor, in said Indian Territory, for the purposes of this act.” Section 2 of the act of April 28, 1904 (33 Stat. 573, c. 1824), provides that: “All the laws of Arkansas heretofore put in force in the Indian Territory are hereby continued and extended in their operation, so as to embrace all persons and estates in said territory, whether Indian, freedmen, or otherwise, and full and complete jurisdiction is hereby conferred upon the district courts in said territory in the settlements of all estates of decedents, the guardian-ships of minors and incompetents, whether Indians, freedmen or otherwise." The act of March 1, 1895, established three districts for the territory, abolished the divisions which were created by the act of May 2, 1890, and vested in the district courts the same territorial jurisdiction which the divisions had theretofore. The act of March 3, 1905 (33 Stat. 1060, c. 1479), contains a provision that: “No lease made by any administrator, executor, guardian, or curator shall be valid or enforceable without the approval of the court having jurisdiction of the proceedings.” The provisions of Mansfield’s Digest applicable to leases and sales of property of minors are as follows: ' “Sec. 3502. The probate court shall order the proper education of minors according to.their means, and for that purpose may, from time to time, make the' necessary appropriations of the money or personal estate of any minor, and when the personal estate shall be insufficient or not applicable to the object, upon application the court may order the lease or sale of real estate, or so much thereof as may be requisite, or that the same be mortgaged for not less than two-thirds of its real value, to raise the funds necessary to complete the education of such minor.” “Sec. 3506. Whenever any guardian or curator shall sell any real estate belonging to his ward under an order of court, he shall report such sale to the court ordering the same in the same manner as executors and administrators are required by law to report sales of real estate made by them for the payment of debts; and such sale, if approved by said court, shall be valid to all intents and purposes. If the court refuse to approve the report, the order of sale shall thereupon be renewed, and the same proceedings shall be had as upon'tbe'original order.” ■ “Sec. 3509. When it shall appear that it would be for the benefit of a ward that his real estate, or any part thereof, be sold or leased and the proceeds put on interest, or invested in productive stocks, or in other real estate, his guardian or curator may sell or lease the same accordingly upon obtaining an order , for such sale or lease from the court of probate of- the county in which such real estate or the greater part thereof shall be situate. “See. 3510. To obtain such order, the guardian or curator shall present to the court a petition setting forth the condition of the estate and the facts and circumstances on which the petition is founded. [401] “See. 3511. If, after a full examination on the oath of creditable and disinterested witnesses, it appears to the court that it would be for the benefit of the ward that the real estate, or any part of it, should be sold or leased, the court may make an appropriate order for such sale or lease, under such regulations and conditions, subject to the provisions of this chapter in relation to the sale of real estate of minors, as the court shall consider suited to the case, first requiring the guardian or curator to enter into good and sufficient bonds to make such leases and conduct such sales with fidelity to the interest of his ward, and faithfully to account for the proceeds of such sales and leases according to law and as the order of the court may require.” [1] Counsel have very ably argued the question whether this lease was made under the provisions of section 3502 or sections 3509 to 3511 of Mansfield’s Digest. The conclusions we have reached make it unnecessary to determine that question. The lease filed as a part of the complaint fails to show that it was ever authorized or approved by any- court, the only approval indorsed thereon having been made by the Secretary of the Interior. The record shows that the form of the lease used was one which had been prepared under section 72 of the act of July 1, 1902 (32 Stat. 726, c. 1375), which required the approval of leases to be made by the Secretary of the Interior; the provision of the act of March 3, 1905, which declares that “no lease made by a guardian without the approval of the court having jurisdiction shall be valid or enforceable,” evidently having been overlooked. That the approval of the Secretary of the Interior was not necessary when the lease is approved by the court has been expressly decided by this court in Morrison v. Burnette, 154 Fed. 617, 83 C. C. A. 391. [2] In addition to what has been said, it is important to notice that the construction placed upon the sections of Mansfield’s Digest, herein-before set out, by the Supreme Court of the state of Arkansas before these statutes were adopted for the Indian Territory, had been uniform that a deed or lease by the guardian of a minor, without approval by the probate court having jurisdiction of the subject-matter, is void, and that no title or estate passed until it was confirmed by the court. Guynn v. McCauley, 32 Ark. 97; Reid v. Hart, 45 Ark. 41; Ambleton v. Dyer, 53 Ark. 224, 13 S. W. 926; Alexander v. Hardin, 54 Ark. 480, 16 S. W. 264. All of these cases had been decided by the highest court of the state of Arkansas prior to the adoption of these statutes for the Indian Territory. The law is well settled that, when a statute of another state is adopted, the presumption is that the construction which had been theretofore placed upon it by the highest judicial tribunal of the original state is adopted with it. Brown v. Walker, 161 U. S. 591, 16 Sup. Ct. 644, 40 L. Ed. 819; Willis v. Eastern Trust & Bank Co., 169 U. S. 295, 18 Sup. Ct. 347, 42 L. Ed. 752; Henrietta M. & N. Co. v. Gardner, 173 U. S. 123, 19 Sup. Ct. 327, 43 L. Ed. 637; J. M. Robinson & Co. v. Belt, 187 U. S. 41, 23 Sup. Ct. 16, 47 L. Ed. 65; Maki v. Union Pacific Coal Co., 187 Fed. 389, 109 C. C. A. 221; Blaylock v. Muskogee, 117 Fed. 125, 54 C. C. A. 639; Harrill v. Davis, 168 Fed. 187, 94 C. C. A. 47, 22 L. R. A. (N. S.) 1153. _ Robinson & Co. v. Belt, supra, was a case which arose in the courts of the Indian Territory and required a construction of one of the laws in Mansfield’s Digest. The statute having been construed by the [402] Supreme Court Of Arkansas before its adoption for the Indian Territory, the court held: “In adopting this law with respect to assignments, the courts of the Indian Territory are also bound to respect the decisions of the Supreme Court of Arkansas interpreting that law. In more than one case we have had occasion to hold that, if a foreign statute be adopted in this country, the decisions of foreign courts in the construction of such statute should be considered as incorporated into it.” In the Blaylock Case, which also arose in the Indian Territory, this court said on that point: “The'more reasonable rule, the rule sustained by the Supreme Court and by the great weight of authority, undoubtedly is that a municipality which is invested with the power and charged with the duty to make and repair its streets and.sidewalks is liable to any individual for the injury which he sustains from, its negligence in the exercise of this power or in the discharge of this duty. * * * But the Supreme Court of the state of Arkansas had adopted and affirmed the converse of this rule prior to the enactment in the Indian Territory of chapter 29 of Mansfield’s Digest of the Laws of Arkansas. * * * The adoption of a statute or a law previously in force in some other jurisdiction is presumed to be the adoption of the interpretation thereof which had been theretofore placed upon it by the judicial tribunal whose duty it was to construe it.” As the record fails to show that the lease to the defendants was ever authorized or approved by any court having probate jurisdiction in the Indian Territory, it is clearly unenforceable and void. [3] The fact that the divisions of the court as originally provided in the act establishing a United States Court in the Indian Territory were abolished by the Act of March 1, 1895 (28 Stat. 693), and three districts established in lieu of them, made the latter the successors of the former, and the word “division” must be treated as amended to read “district.” If, as contended by counsel for appellees, the change from divisions to districts deprived the district courts of all jurisdiction in those matters, then the provision of the act of 1905 requiring the approval of the court exercising probate jurisdiction would be meaningless. . As the act of 1905 was enacted after the change from divisions to districts had been made, it clearly shows that the intention of Congress was to invest the district courts with such jurisdiction. The court below erred in sustaining the demurrer to the complaint, and the cause is reversed, with directions to overrule the demurrer, with leave to the defendants to plead further, if so advised.