NIVENS v. NIVENS, 133 F. 39

HOOK, Circuit Judge, after stating the case as above, delivered the opinion of the court. . It was admitted at the argument that since the decree in the trial court the land in controversy had been allotted in severalty by the Dawes Commission, and that by such allotment the appellant, Julia Nivens, received 50 acres thereof, and the appellee, Bettie, a like quantity. This disposes of the controversy as to the land, and leaves nothing for consideration but the rents and profits thereof and of the appurtenant ferry.

The ferry right depended upon periodical licenses, but under the usages and customs of the Cherokee Nation, in which it was exercised, and .from whose governing authorities the licenses were procured, the preference was accorded to the owner of the adjacent realty. The possessory right of Moses Nivens to the lands adjacent to the ferry was recognized for many years prior to his death as being sufficient to call for the exercise of the preference, and he enjoyed for a long period the continuous and uninterrupted privilege of operating the ferry and collecting tolls therefrom.

Upon his death the appellant, his widow, •procured letters' of administration upon his estate and continued the .conduct of the'business. It is true that she procured the licenses and operated the ferry in her own name, but under the circumstances re■cited she should, in respect of the rights so acquired and exercised, be 'held as a trustee for those beneficially interested as heirs in the estate until there was a satisfaction or a severance of their interests.

Therefore, in arriving at a conclusion in this cause, we have proceeded upon the theory that the appellant was properly debited with the profits of the ferry business until the allotment by the Dawes Commission. Various questions were presented in the briefs and at the hearing concerning the respective interests of the contending parties in the property in controversy. Was the share of the widow, Julia, in the estate of Moses Nivens, measured by that of one of his children, or was she originally entitled to a third by way of dower? Who inherited the share of the deceased child, Moses?

What law concerning descents and distributions governed? It is sufficient to say that giving to the son Jeff, through whom the appellee claims, that interest in the estate of his father which would result from an answer to these questions most favorable to him, we are nevertheless clearly convinced that it was more than exhausted prior to his death, and that even with the subsequent earnings of the estate there was nothing left for the appellee.

We cannot adopt the suggestion which was made that an overpayment by his mother during his lifetime could not be used against the appellee in respect of profits accruing after his death in the absence of proof that it was intended as an advancement. These are the prominent facts which appear from the record before us: Upon the death of Moses. Nivens, in 1871, appellant was left with two small children — Emma,, then about two years of age, and Jeff, about fourteen months. The third child, Moses, was born about eight months afterwards.

The value of the estate, exclusive of the farm and the ferry, was shown in the inventory to have been less than $3,000, and some of it was sold for much less than its appraised value. Other items would naturally be worn out or exhausted in the rearing of a family. Shortly after her husband’s death the appellant paid his debts, aggregating $2,000. She raised two of her children — Emma and Jeff — to maturity, and gave to each of them an education. The latter was sent to a school at Tahlequah, to the Indian University at Bacone, and to the State Agricultural College at Manhattan, Kan.

He dressed well, was dissolute and extravagant. His mother kept him constantly supplied with money, giving him in cash, as shown by the evidence, sums ranging from $5 to $500. Moreover, she indorsed his notes in bank and paid them. She paid his debts, including doctors’ bills, and sent him to Hot Springs, Ark. Shortly after his marriage he came with his wife to live with appellant. They lived with her over four years, until his death, and .his widow, the appellee, remained there about nine months thereafter. No witness testified that he was ever seen to do any physical labor of consequence about the home place.

There was undisputed testimony that he was a spendthrift, and was addicted to drunkén sprees. In the last eight years of his life appellant gave him as much as $4,000, and finally she paid his funeral expenses. She produced before the master his note, which he had executed for some cattle to a third party, who gave it to her. After allowing liberally for an indefinite indorsement of a payment, there remained unpaid thereon at the time of the trial about $2,000. The dwelling house on the farm was destroyed by fire shortly after the death of Moses Nivens.

The appellant built another.' She doubled the area of cultivated land, and set- out a little peach orchard. She personally managed the farm, and part of the time the ferry. After more than 30 years of industry, practically all she has left is the 50 acres of land, with improvements, which were allotted to her from the farm.

An attentive and careful consideration of the record has led us to the unavoidable conclusion that the son Jeff had received more than he was ever legally or equitably entitled to from the estate of his father as augmented by the labor and enterprise of his mother, and that nothing remained due to the appellee as his heir. The decrees of the United States Court of Appeals in the Indian Territory and the United States Court in the Northern District thereof are reversed, with directions to enter a decree dismissing the complaint upon the merits.