The recent Supreme Court decision of BROWN v. ALLEY, 2016 OK 112, 384 P.3d 496 the Court applied the doctrine of equitable estoppel to prevent a common law wife from being appointed as the personal representative of the probate estate. The common law wife had for years behaved as if she and the decedent were not in fact married. She had even remarried. Yet her and the decedent had never obtained a divorce. “Given the facts in this case, appellee is estopped from asserting her continual marital status with the decedent. Appellee had the opportunity for thirteen years to assert her relationship with the decedent, but declined to do so until the decedent’s death. She cannot “speak” now after she has been silent for so long.”

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The Court noted that Oklahoma does not recognize a common law divorce. “¶10 The Oklahoma Constitution contains a prohibition against polygamous or plural marriages. Such marriages are void ab initio. Also, we recognize there is no common law divorce.”

The court cited the ¶11 In In re Estate of Allen, 1987 OK 45, 738 P.2d 142 and observed that the common law wife would even be estopped from inheriting from her husband, “The Court described the theory of “estoppel” as, “if you do not speak when you ought to speak, you shall not speak when you want to speak.” Id. This Court held that because of her previous conduct, the appellee wife should have no claim to her former husband’s estate, despite the lack of a divorce.”

If you are interested this case makes good reading.

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IN THE MATTER OF THE ESTATE OF BOBBY JOE BROWN, JR., Deceased.

RHONDA BROWN, Plaintiff/Appellant,
v.
AMI ALLEY, Personal Representative of the Estate of Bobby Joe Brown, Jr., and as Parent and Next Friend of A.B. and K.B., Minors, Defendant/Appellee.

ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION II

¶0 Appellant sought to revoke the letters of administration of appellee, Ami Alley, who was determined to be the surviving spouse of the decedent Bobby Joe Brown, Jr., through a valid common law marriage. Appellant claimed to be the surviving spouse through a valid ceremonial marriage, prior to the common law marriage, with no divorce from decedent. The trial court held in favor of Alley, and the Court of Civil Appeals affirmed. We affirm.

AFFIRMED

Cameron Cherry, Edmond, Oklahoma, and B. Wayne Dabney, Oklahoma City, Oklahoma, for Appellant,
Murry J. Parrish, Forest Lynn Pepper DeVaughn, Oklahoma City, Oklahoma, for Appellee.

OPINION

WATT, J.:

¶1 The issue in this cause is whether the Plaintiff/Appellant Rhonda Brown is estopped from asserting her status as the surviving spouse of the Decedent, Bobby Joe Brown, Jr. The trial court held that estoppel prevented her from claiming such status, thus preventing her appointment as the Personal Representative of Decedent’s estate. On appeal, the Court of Civil Appeals (COCA) affirmed. This Court previously granted certiorari.1 We hold the trial court properly held Appellant is estopped from asserting she should be appointed Personal Representative of Decedent’s estate.

STANDARD OF REVIEW

¶2 Probate proceedings are matters of equitable cognizance, and on review we must accord deference to the trial court’s determination of the facts. The trial judge has the opportunity to observe the conduct and demeanor of the witnesses, and we will not disturb the trial court’s findings of fact unless they are clearly contrary to the weight of the evidence or to some governing principle of law. In re Estate of Carlson, 2016 OK 6, ¶11, 367 P.3d 486, 491; In re Estate of Holcomb, 2002 OK 90, ¶8, 63 P.3d 9, 13.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 Appellant Rhonda Brown and Bobby Joe Brown, Jr. were married on December 12, 1995, and three children were born of the marriage. One child is deceased. Rhonda testified that after a few years of marriage, she told Bobby she could no longer stay with him if he did not cease his extra-marital affairs. He did not comply with this condition, and Rhonda moved out of the marital home. They were never divorced through a court proceeding. She moved frequently and, at different times, lived in several Oklahoma cities, as well as in Kansas. Two of her children by a different father were removed by DHS from her home when she lived in Kansas.

¶4 Rhonda testified that after they separated, she and Bobby met numerous times for the purpose of being intimate. She stated Bobby referred to her as his wife to everyone they met. She also stated that they walked arm in arm and were constantly showing affection for each other in public by hugging and kissing.

¶5 After Bobby and Rhonda separated, he began living with Ami Alley on or about July 23, 2004. Two children were born to the couple. Ami testified she and Bobby held themselves out as husband and wife to everyone and established a home together in Perry, Oklahoma. Ami also testified that Bobby came home to her and their children every night and that he told her he loved her.2

¶6 Rhonda testified she was aware of the relationship between Ami and Bobby and that he was living with her and their two children. Rhonda testified that Bobby referred to Ami as his girlfriend.

¶7 On March 6, 2013, Bobby died in a motorcycle accident. Ami was named Personal Representative of his estate upon the court’s finding she was Bobby’s surviving spouse in a common law marriage. Rhonda was not sent notice of the proceeding, and Ami did not advise the court of Rhonda’s relationship with Bobby. Ami explained that the court asked if there was anybody to object, and no one appeared to do so. She said the court did not ask about Rhonda, and she did not raise the issue. She also testified Rhonda knew about the proceeding but would not give Ami her address.3 Ami also testified that she heard the testimony of a friend of Rhonda’s that the friend took Rhonda for a rendevous with Bobby at places where she and Bobby both worked, i.e., “Sooner’s Corner”, and Taco Mayo. Ami took issue with the testimony, saying:

Q. Would those have been times you worked there?

A. Yes.

Q. Did you ever see any evidence of that?

A. No. And if there was evidence of that, my co-workers would have told me.

Q. We also heard evidence of Taco Mayo rendezvous. Have you heard in connection with Taco Mayo?

A. Yes, I do. I’ve worked there twice. My first time was when my youngest daughter Kandyce was three weeks old, March of 2006 until August of 2008 when I started working at Sooner’s.

Q. These alleged rendezvous that happened at Taco Mayo, when you were working there, do you think it’s possible you would have had some sort of knowledge of that?

A. I would have if it was going on, yes.

Q. Somebody would have told you?

A. Yes.

¶8 As noted above, it is undisputed that Rhonda and Bobby were never divorced in a judicial proceeding. Rhonda testified that, a short time before Bobby’s death, she participated in a ceremonial marriage with Jimmy Shawn Treece. She referred to the marriage as a “sham” because she never intended to be married to Treece. Rhonda testified she met Jimmy while they were both living in a state-supported shelter when they were minors. She stated that when she was 15 years old, she and Treece agreed they would marry each other if one or the other was in need of help at some time in the future. Rhonda testified that after Treece was incarcerated, he finished his probation and parole, upon approval by the authorities, at his grandparents’ home. They took care of him and supported him. Although he wanted to move out, the only way his grandparents would help him financially was to “show some stability and get married . . . .”4 Rhonda testified she was willing to help him. On August 31, 2012, they went to his grandparents’ home in Checotah, Oklahoma, to tell them she and Jimmy were getting married. His grandparents immediately contacted a minister who performed the ceremony the same day at a church in Checotah. Rhonda signed the marriage license as “Rhonda Ann Treece.”5 After the ceremony, Jimmy took her home. She testified she removed the wedding ring. She placed it and the papers they received in the glove compartment of Treece’s car. She stated she spoke to him on two occasions, but she never saw him again. She testified she never changed her name and did not “recognize that name as a legal marriage.”6 She testified she never filed divorce papers but was “under the impression” the marriage was annulled.7 She stated she does not intend to be married to Treece; she only did it to help him out. Treece did not testify.

¶9 In the judgment denying Rhonda’s Petition and Motion to Revoke Letters of Administration, the trial court found Bobby and Ami began their relationship in 2004 and that it lasted until Bobby’s death; that their relationship met the requirements of a common law marriage;8 and that Rhonda married Treece in a ceremonial, traditional marriage in 2012. The court based its decision to deny Rhonda’s motion to revoke the letters of administration on the issue of estoppel, rather than the legal classification of her marriage to Bobby. The court concluded:

The Oklahoma Supreme court case of Matter of Estate of Allen, 1987 OK 45 (1987) is nearly on point with the case at bar. While there was [a] great deal of conflicting testimony about the post separation relationship between Rhonda and the Decedent, the real issue is whether Rhonda should be estopped from claiming surviving spouse benefits and not so much the legal classification of her marriage to the Decedent.

Estoppel is a bar raised by the law which precludes one from alleging or from denying a certain fact or state of facts in consequence of the previous allegation, denial, conduct, or admission or in consequence of a final adjudication of the matter by a court of law. Allen quoting from Wisel v. Terhune. 201 Okl. 231, 204 P.2d 286, 290 (1949). The formal ceremonial marriage by Rhonda to Treece is, by itself, a previous denial vis a vis her marriage to the Decedent. Despite her unsubstantiated testimony to the contrary, a later marriage is in fact, a denial of any prior marriage.

DISCUSSION AND AUTHORITY

¶10 The Oklahoma Constitution contains a prohibition against polygamous or plural marriages.9 Such marriages are void ab initio.10 Also, we recognize there is no common law divorce. However, in this case, we are not explicitly determining whether our laws defining and regulating marriage in Oklahoma were violated, but whether the doctrine of estoppel precludes Rhonda from being declared Bobby’s surviving spouse and the Administrator/Personal Representative of his estate. We hold that it does.

¶11 In In re Estate of Allen, 1987 OK 45, 738 P.2d 142, this Court examined the multiple marriages of a couple who were married, divorced, remarried and then permanently separated, with no divorce. Wife cohabited with another man (“second husband”), and four children were born to the couple. Second husband filed for divorce and sought custody of the children. Wife admitted a common law marriage and also sought custody of the children. The court found a common law marriage existed and entered a divorce decree. Meanwhile, first husband married another woman who later died. No children resulted from that marriage. Then, first husband died. He left his estate to his son from an earlier marriage, and Wife petitioned for letters of administration and appointment as personal representative as surviving spouse. She argued she was still married to first husband because there was no divorce. The trial court agreed, but this Court held that she was estopped to claim the status of surviving spouse to her first husband. We reasoned that she had had an opportunity for 13 years to assert a marital relationship with her first husband, but she never did. We stated:

Given the facts in this case, appellee is estopped from asserting her continual marital status with the decedent. Appellee had the opportunity for thirteen years to assert her relationship with the decedent, but declined to do so until the decedent’s death. She cannot “speak” now after she has been silent for so long.

Allen, 1987 OK 45, ¶9, 738 P.2d 142, 144. The Court described the theory of “estoppel” as, “if you do not speak when you ought to speak, you shall not speak when you want to speak.” Id. This Court held that because of her previous conduct, the appellee wife should have no claim to her former husband’s estate, despite the lack of a divorce.

¶12 In the present case, the facts which were alleged by the respective parties were disputed. Rhonda testified that her relationship with Bobby never ended until he died. She related instances of his declarations of love to her, their intimacy, and his visits to her which included numerous overnight stays. This testimony about their relationship was confirmed by her witnesses who alleged they witnessed the affection shown between Bobby and Rhonda. However, the evidence of the continued relationship between them stood in stark contrast to the testimony of Ami Alley who was Bobby’s professed common law wife, beginning in 2004. Ami’s testimony that Bobby was with her at home every night and that he did not travel to see Rhonda, except the times when Ami was present totally contradicts Rhonda’s testimony. The trial court was trier of fact and determined the post-marriage events in favor of Ami. We do not find the court’s factual findings are clearly contrary to the weight of the evidence or contrary to law. See In re Estate of Carlson, and In re Estate of Holcomb, supra. The evidence in support of the court’s determination included witnesses who were told that Ami and Bobby were married and who witnessed their life together for nearly ten years. Moreover, Rhonda’s testimony that she gave Bobby an ultimatum about his extra-marital affairs in 1999 indicates her willingness to separate from him, rather than to endure his alleged infidelity.

¶13 Finally, the subsequent marriage to Jimmy Treece, which is substantiated by a copy of the marriage license and by the testimony of Rhonda herself, is further evidence that she considered her marriage to Bobby was at an end. While this Court is aware of Rhonda’s articulated reason for her marriage to Jimmy Treece, i.e., to help him out, her actions in engaging in a “sham” marriage to defraud Treece’s grandparents offer little to persuade the Court that equitable estoppel should not be applied against her. Moreover, she and Bobby had ceased living as husband and wife for several years, during which he lived with another woman and with whom he had two children. Rhonda’s signature on the marriage license, dated August 31, 2012, as “Rhonda Ann Treece”11 and her admission that she and Treece had been intimate before the marriage are further evidence Rhonda believed her marriage to Bobby had terminated.

¶14 We note that in a previous case, Darrough v. Davis, 1928 OK 730, 135 Okl. 263, 273 P. 309, similar to Allen, supra, the deceased person was the party who was abandoned during the marriage, while in this case, the deceased person (Bobby) is the party who engaged in a common law marriage relationship without officially ending his marriage to Rhonda. However, the evidence which was presented at the hearing, although disputed, supports the court’s finding that Rhonda’s subsequent marriage to Treece, despite her disavowal of it as a valid marriage, is an act which was contrary to Rhonda’s expressed intent to remain married to Bobby at the time.

CONCLUSION

¶15 As the fact finder who observed the testimony, the trial court was in the best position to consider the demeanor and credibility of the witnesses who testified. Ami’s testimony as to the alleged common law marriage and Bobby’s presence at home every night contradicted Rhonda’s testimony that he spent numerous nights with her away from home. The testimony that Rhonda was taken by a friend to meet Bobby at a place where he and Ami both worked appears to be disputed because Ami testified she would have been told by fellow employees that this occurred. Finally, Rhonda’s testimony that she participated in a ceremonial marriage ceremony with Jimmy Treece, as evidenced by a copy of the marriage license entered into evidence, had to be weighed against Rhonda’s testimony that the marriage was meaningless. We find the trial court’s determination of the facts is not against the weight of the evidence.

¶16 AFFIRMED.

 

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The following probate case illustrates how an adopted child was not entitled to inherit an Osage Indian Headright.   This is the dispositive wording in the will: “I hereby give, devise and bequeath the income from the Osage headrights or shares in the mineral interests of the Osage Tribe of Indians owned by me at the time of my death to my two grandchildren, Thos. Rogers and Nancy Rogers Big Elk, during their lives; provided that each of said grandchildren shall receive one half of said income at the time the distribution of said income is payable: and provided further that if either of said grandchildren shall die leaving no surviving child or children then said entire income shall be paid to the surviving grandchild during the life of the said survivor: and provided further that if said grandchildren or either of them should die leaving a child or children surviving them said mineral interests or headrights from which said deceased grandchild or either of them was receiving the income shall immediately vest in said child or children, share and share alike, and in the child or children of any deceased child of my said grandchildren by right of representation: and provided further that if both of said grandchildren shall die without children then said headright shall vest in the heirs of my body, or, in case of the death of any of the heirs of my body, then to the living issue of such deceased heirs by right of representation.”  The adopted child was adopted by a deceased grandchild of the deceased.  The adopted child wanted to step into the grandchild’s shoes and inherit from the grandmother.  The “heirs of my body” language indicated that there was not an intent to include the adopted child.

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To avoid problems like this good attorneys usually include a definition of children which will include adopted children.  Sometimes definitions are limited to children adopted before the age of 21, or earlier.

Good probate, will and trust attorneys may also include in the definition of children whether the child is born inside or outside of wedlock. Sometimes wording is used which intentionally omits any child or person who claims to be a pretermitted (forgotten or unknown) child or descendant of a child who may make a claim to the estate.

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Ware’s estate is an interesting case.

 

IN RE WARE’S ESTATE
1958 OK 263
348 P.2d 176
Case Number: 37784
Decided: 11/05/1958
Supreme Court of Oklahoma

Cite as: 1958 OK 263, 348 P.2d 176
IN THE MATTER OF THE ESTATE OF NANCY WARE, DECEASED. BILLIE JOE YOUNG FLETCHER ROGERS, PLAINTIFF IN ERROR,
v.
NANCY ROGERS RECTOR, INDIVIDUALLY, AND AS ADMINISTRATRIX OF THE ESTATE OF NANCY WARE, DECEASED, DEFENDANTS IN ERROR.

Syllabus by the Court.

¶0 Where a member of the Osage Tribe of Indians willed the income from the Osage Indian headrights she owned, to her two grandchildren, with the provision in paragraph ‘III’ of her will that upon the death of either ‘* * * leaving a child or children surviving * * *’, his or her share ‘* * * shall immediately vest in said child or children, share and share alike, and in the child or children of any deceased child of any said grandchildren by right of representation * * *’, in view of said paragraph, the character of the property involved, and the circumstances in evidence, the judgment of the trial court holding that a certain adopted child of the testatrix’ deceased grandchild was not a beneficiary under said provision, was neither contrary to law nor to the evidence.

Appeal from the District Court of Osage County; Jesse J. Worten, Judge.

In proceedings by the administratrix with the will annexed of the estate of Nancy Ware, deceased Osage Indian allottee, in connection with disposition of said estate, the county court determined that Billie Joe Young Fletcher Rogers, an adopted child of the testatrix’ deceased grandchild, was not entitled to any interest in the headrights left by testatrix. After Rogers had appealed to the district court, which court’s judgment was also against him, he appealed to this court. Affirmed.

Shoemake & Briggs, Pawhuska, Gordon L. Patten, Tulsa, for plaintiff in error.

F.W. Files, Pawhuska, for defendants in error.

BLACKBIRD, Justice.

¶1 This appeal involves a determination of the proper devolution of one-half of the 1 2/3 Osage Indian headrights owned, at the time of her death, by one Nancy Ware, who was enrolled opposite Roll No. 1808, and received an allotment, as a member of the Osage Tribe of Indians. Said allottee died in January, 1933, while a resident of Osage County, and leaving a will executed during the same month of the previous year, but not approved in the Office of the Secretary of the Interior until June 27, 1933.

¶2 Under the terms of said will, and the decree of the county court entered June 11, 1934, in the proceedings to admit same to probate, the testatrix’ grandchildren, Nancy Rogers Big Elk and Thomas Rogers, were paid the income from said Osage headrights in proportions of one-half to each, until the death of the latter in December, 1953, which necessitated a determination as to what disposition was to be made, in accordance with testatrix’ will, of that portion of the headrights from which he had been receiving income. The matter was rendered controversial by the fact that, in 1942, the said Thomas Rogers had adopted, as his son, Billie Joe Young Fletcher Rogers, the son (by a former marriage) of his wife, Grace, whom he married in 1937, more than four years after the testatrix’ death.

¶3 The portion of the testatrix’ will governing the devolution of the headrights involved herein is paragraph “III”, which reads as follows:

“I hereby give, devise and bequeath the income from the Osage headrights or shares in the mineral interests of the Osage Tribe of Indians owned by me at the time of my death to my two grandchildren, Thos. Rogers and Nancy Rogers Big Elk, during their lives; provided that each of said grandchildren shall receive one half of said income at the time the distribution of said income is payable: and provided further that if either of said grandchildren shall die leaving no surviving child or children then said entire income shall be paid to the surviving grandchild during the life of the said survivor: and provided further that if said grandchildren or either of them should die leaving a child or children surviving them said mineral interests or headrights from which said deceased grandchild or either of them was receiving the income shall immediately vest in said child or children, share and share alike, and in the child or children of any deceased child of my said grandchildren by right of representation: and provided further that if both of said grandchildren shall die without children then said headright shall vest in the heirs of my body, or, in case of the death of any of the heirs of my body, then to the living issue of such deceased heirs by right of representation.”

¶4 After her appointment, in 1956, as administratrix with the will annexed of the estate of the testatrix, her deceased grandmother, Nancy Rogers, now Rector, who is one and the same as “Nancy Rogers Big Elk” and is the “surviving grandchild” within the nomenclature of the above quoted will, filed in the probate proceedings pertaining to said estate, a pleading entitled: “Final Account, Petition To Construe Will of Deceased and Judicially Determine the Death of Thos. Rogers, also known as `Thomas L. Rogers, Jr.,’ and For a Decree of Distribution.”

¶5 At the hearing held on said pleading in the county court, the pivotal question was: Whether Billie Joe Young Fletcher Rogers, being an adopted, rather than a natural, child of the testatrix’ deceased grandchild, Thomas Rogers, was a “child” of a grandchild of the testatrix within the meaning of that term, and equivalent expressions, if any, used in the above quoted third paragraph of her will.

¶6 The county court determined the question against the adopted boy, Billie Rogers, and decreed that the income from the headright interest (including that which had accrued since the death of Thomas Rogers) “be paid to Nancy Rogers Rector during her lifetime.” Upon appeal to, and trial de novo by, the district court, herein referred to as the trial court, said court entered a judgment, in accordance with findings of fact and conclusions of law, which, in every material respect, concurred with the county court’s decree. Thereafter, Billie Rogers, hereinafter referred to as appellant, perfected the present appeal to this court. Nancy Rogers Rector appearing here in her capacity as an individual, as well as administratrix, will be hereinafter referred to as appellee.

¶7 In his argument for reversal, the appellant attacks both the trial court’s findings of fact and conclusions of law, but treats particularly of said court’s first three conclusions of law, which were in words and figures as follows:

“1. That the adoption of a child under the Oklahoma law only fixes the status of such adopted child insofar as his adoptive parent is concerned and confers upon such adopted child only the legal consequence of the adopted child for the purpose of inheritance or other rights of such child from his adoptive parent.

“2. That under the law of Oklahoma the right of an adopted child to succeed to property of kindred of the adoptive parent, the claimant, under Title 10 O.S.A. [§§] 51 and 52 , is expressly excluded from taking property limited to the body, or bodies, of the parent by adoption and from lineal or collateral kindred of such adoptive parent by right of representation.

“3. That title 25 O.S.A., Section 7 , has been construed by the Supreme Court of the State of Oklahoma in the case of In re Captain’s Estate, in which the Court said:

“`Since this section refers to the adopted person as a “child” and Section 27, O.S. 1931, 25 Okl.St.Ann. Sec. 7 , states that, “the term children includes children by birth and by adoption”, it is apparent that said section was intended to negative the possible right of the child to inherit from the kindred of the adoptive parents “by right of representation”.'”

¶8 Appellant attributes the claimed errors in the trial court’s judgment to his failure to recognize that the case of In re Captain’s Estate, 191 Okl. 463, 130 P.2d 1002, (which so obviously influenced said judgment) dealt with an intestacy situation where statutes are usually the final arbiter of the descent and distribution, rather than a testacy situation like the present one, where the intention of the testator governs. Pursuing this premise, appellant attempts (without evidence of the testatrix’ intention, other than the words of the will itself) to show that by omitting to preface the terms “child” and “children” with the word “natural” in her will, the testatrix understood said terms as including adopted children (by statute) in Oklahoma, and that her use of other terms such as “living issue” and “heirs of my body” (which appellant concedes do not include adopted children) shows that she recognized the distinction between such terms.

¶9 Generally speaking, of course, statutes do not govern, or even influence, the matter of who may be beneficiaries of estates under wills, as they do the matter of who shall be beneficiaries of estates in intestate succession. Accordingly, a testator or testatrix may, by will, include among the beneficiaries of his or her estate, persons who have neither a natural nor legal claim thereon; and, when such intention is clear, it matters not that such persons would have no claim to any part of the estate under the laws of succession or descent and distribution. It is only where the words of the will leave the testator’s intention in doubt, that such statutes, or those that restrict the devolution of such estates, or those bearing upon the relationship of persons such as the testatrix and the claimant, may be entitled to consideration. But, said statutes are considered – not because they control the devolution of the estate directly – but because they may furnish a clue to arriving at the testator’s intention, in view of the presumption, usually indulged, that he was cognizant of their existence and efficacy, when the will was drafted and executed. Thus, it is only to the extent that such statutes, federal and state, are applicable to appellant’s relationship to the testatrix, or to the devolution of her estate, that they may constitute any foundation, in reason or logic, for his contention that the word “child”, as used in the testatrix’ will, includes him. And, in determining such statutes’ applicability, we may look to cases involving intestate estates, as well as those involving testate estates, where the statutory construction there announced is a general one and does not hinge upon testacy or intestacy. Clearly, In re Captain’s Estate, supra, is such a case. In our opinion in that case we said (at page 1005 of 130 P.2d) that Tit. 10, O.S. 1951, sec. 51 (O.S. 1931, sec. 1711) “relates itself only to the general relationship * * * between parent and child (and) other than the right of inheritance.” Following this statement in that opinion, we demonstrated why decisions from other jurisdictions upholding an adopted child’s right to inherit from kindred of his adoptive parents, are neither controlling nor persuasive. We there noted in sec. 52, (O.S. 1931, sec. 1712) of the same Title, reference to the word “child”, which, under Tit. 25, O.S. 1951, sec. 7 , may mean an adopted child, as well as a natural child, but concluded that “said section (52) was intended to negative the possible right of the child to inherit from the kindred of the adoptive parents `by right of representation’.” In reaching this conclusion we there said (at page 1006 of 130 P.2d):

“The position taken by the appellant that the provision in Section 1712 denying the adopted child the right to inherit from the lineal or collateral kindred of the adoptive parents by right of representation constitutes implied legislative authority for such child to inherit directly in his own right as a natural child from such lineal or collateral kindred, is untenable. This section deals exclusively with the personal rights and duties existing between the adopted child and the adoptive parents. It grants full inheritance rights to the child so far as the property of the parents is concerned, but denies the child the right to take property limited to their bodies and the right to participate as the parents’ representative in any of the estates of their kindred by blood, thus evincing a legislative intent and purpose to keep the property of the family, other than that of the adoptive parents, in the family, and away from the adopted child. Nowhere is there an express provision that the child shall inherit from any one other than the adoptive parents.” (Emphasis ours).

¶10 Here, if there were any doubt from the provisions of paragraph III of the will as a whole, including those containing the terms “heirs of my body” and “right of representation”, that it was the intention of the testatrix to keep the devolution of her headrights in her own blood line, we think it is readily dispelled upon consideration of the inheritance restrictions placed by Congress upon such interests in Osage tribal property. In this connection, see the Act of Congress of June 28, 1906 (34 Stat. 539), as amended by the Act of Congress of March 3, 1921 (41 Stat. 1249-1251), the Act of Congress of April 18, 1912 (37 Stat. 86-88) cited in the Secretary of the Interior’s endorsed approval on the will in question, as authority therefor; and, more particularly Section 7 of the Act of Congress of February 27, 1925 (43 Stat. 1008-11), as amended by the Act of Congress of September 1, 1950 (64 Stat. 572) dealt with in Ware v. Beach, Okl., 322 P.2d 635. The ultimate purpose of the last two Congressional Acts was to prevent heirs, except those of Indian blood, from inheriting from persons having one-half or more Indian blood of the Osage Tribe of Indians “any right, title, or interest to any restricted lands, moneys, or mineral interests of the Osage Tribe; * * *”. Upon inquiry by this court, counsel say that there is no question of federal inheritance restrictions in this case. Assuming, without deciding, that Billie Rogers meets the qualifications imposed by Congress on the inheritance of Osage Indian headrights, the question then arises: How could those who drafted and executed the will in question be certain that any child the testatrix’ grandchild might adopt would meet such qualifications? Therefore, is it not reasonable to assume that in making testamentary disposition of such restricted Indian property it would be done in such manner as to leave no question as to its efficacy? And, would not keeping headrights in the testatrix’ blood line be the best way of being certain that said property would be inherited by heirs who could establish Indian blood (under the Federal Acts, supra) by their enrollment record or by the enrollment record of a lineal Indian ancestor? We think all of these questions must be answered in the affirmative, and, in view of the presumption that the testatrix knew of the inheritance restrictions on such property, such answers furnish substantial insight as to what she intended in her will’s reference to a child or children of a grandchild or grandchildren. Upon consideration of the foregoing, and, in the absence of any evidence to the contrary, it can only be concluded that such references were intended to exclude adopted children. It therefore follows, that the judgment of the trial court must be, and is hereby affirmed.

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