
    JACKSON v. COON et al.
    No. 16616
    Opinion Filed June 1, 1926.
    Appeal and Error — Reversal—Insufficiency of Evidence.
    The judgment of the trial court, in a law action, will be reversed when there is no competent evidence to support the pama
    (Syllabus by Jarman. C.)
    Commissioners’ Opinion, Division No. 2.
    Error’ from District Cohrt, Grady County: Will Linn, Judge.
    Action by Jonas Jaickson against O. D. Coon et al. Judgment for defendants, and plaintiff brings error.
    Reversed 'and remanded, with directions.
    E. D. Means, C. A. Holley, and E. I). Holley, for plaintiff in error.
    Bond, Melton & Melton, for defendants in error.
   Opinion by

JARMAN, C.

Jonas Jack-soln instituted two separate actions in the court below to recover an undivided one-half interest in two separate portions of the allotment of John Freeman, deceased, duly enrollad full-blood Choctaw Indian. By order of the court', the two actions were consolidated for (rial, resulting in a judgment - for the defendants, from which the plaintiff, Jackson, has appealed.

On the following facts there is no dispute between the plaintiff and the defendants: John Freeman, a duly enrolled full-blood Choctaw Indian, having- received patents to the homestead and surplus portions of his allotment, died intestate, seized and possessed thereof, and left surviving him, hfs mother, Seeley Freeman, now Seeley James, and a paternal cousin, Jenny Billy. The decedent’s father, a full-blood Indian, died sometime prior to the doath otf the decedent. Jonas Jackson, the plaintiff, is a remote descendant and the only representative of Jenny Billy. Plaintiff contends that Jenny Billy, paternal cousin of decedent, inherited an undivided one-half interest in and to< his allotment, and that he, the plaintiff, being the only representative fiend descendant of Jenny Billy, inherited and became the owner of such undivided one-half interest. The defendants contend that Seeley Freeman, now Seeley James, inherited and became the owner in fee simple of the entire allotment of the decedent, and that, by deads executed by the said Seeley Jotaes, nee Freeman, duly approved by the props?® county court and by mesne conveyances, the defendants became the owners of said allotment.

The plaintiff contends that John Freeman died in June, 1907, priotr to statehood, and that chapter 49 of Mansfield’s Digest of Arkansas, as extended over the Indian Territory, governed the devolution of the estate of said decedent. The defendants contend that the decedent died subsequent to statehood, and that, therefore, the devolution of said estate; was gotverned by the laws of Oklahoma. It is agreed by the parties that if the decedent died prior -to statehood the plaintiff is the owner of an undivided one-half interest In the allotment off the decedent, whereas, if he died subsequent to statehood, Seeley James, nee Frneman, inherited and became the owner in fee simple of the entire allotment of decedent, and that the defendants, by deed from her duly approved, and mesne conveyances, are the owners of said allotment in fee simple. The trial court found that the decedent died subsequent to state-boo d, and this is the only question for determination on appeal.

This was an action in ejectment, a law action, and the only question presentad is, whether there is any evidence reasonably tending to support tbe findings and judgment of tbe trial court that the decadent, John Freeman, died subsequent to state-hebd.

We have carefully examined all of the evidence in this case, and we fail to find any competent evidence to support the findings and judgment of the trial court, - but, on the contrary, the evidence overwhelmingly and conclusively shcJws that decedent died prior to statehood. Jenney Folsom testified that she was acquainted with the decedent; that he was just a boy when he died, and, as co the date of his death, she stated that he died “long time ago.” Nancy Whistler was acquainted with the decedent, ana testified positively that he died before statehood. The decedent resided at tbe home of Betsjt Jones, a third cousin, at tbe time of bis death, and she testified positively that he died June 22, 1907, at the age of 17 years. Rhoda James testified that she was acquainted with (he decedent; that he wavs residing at the home Of Betsy Jones at the time of his death, and, upon being asked whether he died prior to statehood, she testified:

“A. I think after statehood, because he had his allotment and it wais aillotted before statehood. Q. You are not able to state the date of his death exactly, are you? A. No, sir, I can’t.”

The allotment deeds were issued to the decedent in Februalry, 1907. The order of the county court approving the deed executed by Seeley James, nee Freeman, to the lands in question recites chat John Freeman died on the-day of July, 1905. This coto-stitutes all of the evidence reflecting upon the date of the doath of the decedent.

We have the positive testimony of Betsy Jones thac the decedent died at her home oh June 22, 1907, «ind the positive testimony of Nancy Whistler that the decedent died before statehood. The defendants contend that the testimony of Betsy Jones and Nancy Whistler was contradicted by the testimony off Rhoda James, and that her testimony justified the trial court in finding that the decedent died subsequent to statehood. Tlie testimony o:' Rhoda James is without probative value; she cicles not pretend to state when the decodent died. The most she could say on this question was “I think after statehood”; and the remainder of her answer, “beoamse he had his allotment and it was allotted before statehood,” shows that she was merely guessing as to the tíme the decedent died. The homestead and alio'ment deads were executed in February, 1907, and the fact the Iwnd was allotted to the decedent prior to statehood was nd reason why he died after statehood. Ho had plenty of time after tha patents were executed in February, 1907, to have died before November 16, 1907, the date of statelicbd. The answer of the witness is indefinite, unintelligible. and without any probative value whatever, and there is no evidence to support the finding that the decedent died subsequent to statehood.

Note.-See 4 C. J. p. 822

The judgment of the trial court is reversed. and the cause remanded for further proceedings in keeping with the views herein expressed.

Bv the Court: It is so ordered.  