Pourier v. McKinzie

HUNT, District Judge.

1. As to jurisdiction. The administrators never have actually had any property belonging to decedent in their hands. The surviving partner has received part of the moneys involved in this action, and a receiver duly appointed by this court holds another part. No judgment directing payment of any assets to heirs or others ever has been made by any court of the state of Montana. There is as yet no custody of any property by the district court of Gallatin county, and no officer of such court has ever had or now has actual possession of any property belonging to the' decedent. Millie Richard, as well as complainants, citizens of other states, may apply to the federal courts to determine and enforce rights against the .surviving partner, who has moneys in his hands in which decedent had an interest. The case is not one where the administration of the estate is sought to be taken out of the courts of a state, but is to establish and enforce, in behalf of citizens of other states, claims to shares owhed by a decedent in partnership property lawfully in the possession of a surviving partner and a receiver of the court. Section 2734, Code Civ. Proc. Mont.

By the decision in Byers v. McAuley, 149 U. S. 608 , 13 Sup. Ct. 906, 37 L. Ed. 867 , a circuit court of the United States may entertain jurisdiction in favor of citizens of other states to determine and award their shares in an estate, where the.debts of the estate have been paid, and the estate is ready for distribution, where no adjudication has *289 been made by the courts of the state. If jurisdiction is properly exercised in such a case, clearly the federal courts will retain it, where the property has not even lawfully passed to the custody of an administrator, but is properly in the possession of a receiver and a surviving partner, as a trustee of the interest of a deceased partner. Hess v. Reynolds, 113 U. S. 73 , 5 Sup. Ct. 377, 28 L. Ed. 927 ; Martin v. Fort, 83 Fed. 19 , 27 C. C. A. 428 ; Brendel v. Charch (C. C.) 82 Fed. 262 ; Comstock v. Herron et al., 55 Fed. 803 , 5 C. C. A. 266 ; Lawrence v. Nelson, 143 U. S. 215 , 12 Sup. Ct. 440, 36 L. Ed. 330 ; Hayes v. Pratt, 147 U. S. 557 , 13 Sup. Ct. 503, 37 L. Ed. 279 ; Hale v. Tyler (C. C.) 115 Fed. 833 ; Waterworks Company v. Owensboro, 200 U. S. 38 , 26 Sup. Ct. 249, 50 L. Ed. 361 .

2. Upon the merits. The evidence preponderates in favor of the conclusion of marriage between John Richard, a white man, and Louisa, an Indian woman, mother of defendant Millie Richard Luhan. I find that prior to 1868 they lived together several years in Bozeman, and were there known as man and wife; that they lived together there as man and wife in 1868, before the family moved to Ft. C. F. Smith, and that they lived together after the arrival of the family at Ft. Smith. The family moved to Ft. Smith in the very early spring of 1868, probably in February. 'Millie was born in December, 1868. Her father undoubtedly quarreled with her mother just before Millie was born, but there is ample evidence of his having recognized the child Millie as his daughter, and of his having often spoken of Millie’s mother as his wife. The witness McKinzie says they were married by- a justice of the peace in Madison county, Mont. But if he is mistaken in respect to that, still the legitimacy of Millie is established by the weight of the evidence, especially when considered with relation to tlic presumptions in favor of marriage, where cohabitation, admissions, and reputation are shown. Civ. Code Mont. §§ 280, 282. Let it be granted that the proof of marriage is not as strong as it might be, when we consider the conditions that often existed in the early days of the territory, when men not infrequently cohabited with Indian women without intent to contract a relationship of husband and wife; but even so, it is far stronger that there was marriage than that the relationship was meretricious.

3. Vs 1,o heirship. Millie Richard Luhan is the only heir, her brother being presumed to be dead. John Richard, Millie’s father, is proven to have been a citizen of the United States, and she is eutillcd to inherit. Richardville v. Thorp (C. C.) 28 Fed. 52 ; Jones v. Meehan, 175 U. S. 1 , 20 Sup. Ct. 1, 44 L. Ed. 49 . Rights of inheritance from Indians, members of a tribe, whose tribal organizations are still recognized by the government of the United States, are controlled by the laws, usages, and customs of the tribes, if there are any such laws, usages, and customs upon the matter, and not by the law of the state. But in this case there is no suggestion that the common law of any Indian tribe should obtain, or, if it could, that it would affect Millie’s rights to half the property belonging to the firm of McKinzie & Richard.

*290 4. As to an agreement between Fourier, and McKinzie. There is a flat contradiction in the testimony as to the existence of this agreement, but, under my view of it, it is wholly immaterial whether an agreement was or was not made, for under no circumstances could it affect the rights of the only legal heir, Millie; nor could any such agreement prevent the courts from proceeding to adjudicate the rights of the respective parties.

5. McKinzie’s claims. McKinzie, as surviving partner of the firm of McKinzie & Richard, is entitled to one-half of the amounts recovered upon the judgments obtained against the United States. But I hold that he is not entitled to affirmative relief by way of allowance of the personal claim for $1,320 he makes for wagons and other things claimed to have been sold to Richard in 1871. The claim is a stale one, not supported by satisfactory proof, and should not be allowed. McKinzie’s claims for reimbursement and services rendered in and about the collecting of evidence to sustain the claim of the firm are, however; upon a different footing, and are valid, if substantiated by evidence of their reasonableness. Further evidence as to the items may be heard before final decree is signed in the case.

There is no reason why the decree of this court shall not provide for a direct payment by the receiver of the moneys in his hands to those entitled to take, namely, Millie Richard Luhan and McKinzie. It can likewise be decreed that McKinzie, as surviving partner, shall make direct payment of half of the sum he holds to Millie Richard Luhan, taking her receipt therefor. After McKinzie, as surviving partner, shall have paid to Millie Richard Luhan half of the moneys he may hold, less, of course, her share of such expenses and costs as the decree of this court may find to be lawfully taxed against the sums held by McKinzie, he can then account to the administrator of the estate, setting forth the decree of this court, and his acts duly had thereunder. There is no necessity of payment to Millie Richard Luhan through an administrator. It would be a needless form, only decreasing the value of her share by fees, which can well be avoided.

Let a decree be submitted conforming to this opinion.