This case involves a single question relating to the construction and effect of section 23 of the Act of April 26, 1906, c. 1876, dealing with the Five Civilized Tribes. This reads:
'Every person of lawful age and sound mind may by last will and testament devise and bequeath all of his estate, real and personal, and all interest therein: Provided, That no will of a full-blood Indian devising real estate shall be valid, if such last will and testament disinherits the parent, wife, spouse, or children of such full-blood Indian, unless acknowledged before and approved by a judge of the United States court of the Indian Territory, or a United States commissioner.'
The subject-matter of the controversy-which arose in the course of a proceeding instituted in a local court of Oklahoma to foreclose a mortgage-is a part of a surplus allotment of 160 acres out of tribal lands made in 1904 to Frazier McLish, a full-blood Chickasaw Indian and held by him subject to restrictions against alienation. In July, 1906, he executed a will by which he bequeathed one dollar to his wife and each of his children, and devised all the residue of his property, including this allotment, to his sister. In 1907, McLish having died, the will was probated and recorded, the only endorsement which it bore being the following:
'Approved by me July 9, 1906. Thomas N. Robnett, U.S. Commissioner for the Southern District, Indian Territory, First Commissioner's District, in accordance with the Act of Congress of April 26, 1906. (Seal).'
For present purposes it suffices to say that the proceeding in the District Court involved a controversy as to the title to part of this allotment, arising between J. A. White, to whom it had been conveyed by the devisee, and S. H. Davis, to whom White had given a mortgage, on the one side; and the widow and children of the testator, on the other side. White and Davis claimed that the will was valid and had passed title to the devisee; and the widow and children claimed that it was invalid, since it had not been acknowledged before a commissioner or judge as required by the Act of 1906, and that the title to the allotment had descended to them.
On the trial the United States Commissioner testified that at the time he approved the will the testator had appeared before him and acknowledged its execution for the purposes therein mentioned, but that, by inadvertence, the certificate of such acknowledgment had been omitted. The court, in view of this evidence, held that as the will had been in fact acknowledged before the Commissioner, it was valid and vested title to the allotment in the devisee; and gave judgment accordingly. On appeal, this was reversed by the Supreme Court of Oklahoma, which held that parol testimony was inadmissible to supply the lack of a certificate of acknowledgment, and that under the Act of 1906 the will was invalid. 106 Okl. 208, 232 P. 828.
The case is now before us on a writ of error, which was allowed in March, 1925, and a petition for a writ of certiorari, which was postponed to the hearing on the merits. The writ of error must be dismissed under the Jurisdictional Act of 1916 (39 Stat. 726); and the writ of certiorari is granted.
Davis and White do not deny that the will disinherited the testator's wife and children, Re Byford's Will, 65 Okl. 159, 162, 165 P. 194, and that it was invalid unless acknowledged before the Commissioner, as well as approved by him. Their contention is, that under a proper construction of section 23 of the Act of 1906, where a full-blood Indian who devises his lands to the exclusion of his wife and children, appears before a Commissioner and acknowledges the document presented to be his will, 'it is the fact of such acknowledgment by said testator, and not any certificate by the officer, which gives validity to the will'; and they expressly concede that 'if, on the other hand, Congress intended to require that a certificate of acknowledgment be placed on the will itself by the officer,' they cannot prevail.
Construing section 23 of the Act in the light of its manifest purpose, we think that Congress intended that to give validity to such a will it was necessary not only that it be in fact acknowledged by the testator before the officer, but that the officer place a certificate of such acknowledgment upon the will, as an essential part of the acknowledgment itself.