Slike strani

April 17, 1973


Interior for decision. In his decision petition was timely filed and that of April 7, 1971, the Secretary it showed merit. The order further found, inter alia, that the will of found "that because of the unavailthe decedent was entitled to approv- ability of the Examiner, David J. al as her last will and testament. McKee, who conducted the hearing, He further found that the decedent a full rehearing should be conducted was provided care under circum- de novo as to the fact of and the stances entitling the appellant to legal validity of the claim of Lucille compensation; and further that care Hall." It was ordered that rehearwas provided for decedent's late ing be granted for rehearing of husband and for the child, Robert those issues presented by the petiDesjarlais, under circumstances en- tion. The Judge having the Fort titling the appellant to compensa

Peck Indian Reservation in Montion from the estate. The Secretary tana within his assigned territory pursuant to his order approved the was given jurisdiction to conduct will and the claim of the appellant, the rehearing. Rehearing was held Lucille Hall, for care provided, in on September 23, 1971, in Poplar, the sum of $9,800.

Montana, by Judge William E. Carmelita Eagle Boy, a cousin of Hammett. The petitioner and the

a the appellant timely filed a petition appellant were both represented by for herself and for Magdeline counsel. On March 6, 1972, the Stretches Himself, both heirs in the Judge issue an order disallowing matter, for rehearing of the order the appellant's claim for care and proving the will and the decree of the claim for attorney's fee. Appeldistribution set forth in the Secre- lant filed an appeal to this Board on tary's decision of April 7, 1971. In July 19, 1972. justification of the petition the peti- Seven grounds have been offered tioner alleged that the Notice of in support of this appeal which are Hearing to Determine Heirs or Pro- as follows: bate Will dated May 8, 1970, did not

1) The decision exceeds the authority include a statement of the claim for

and jurisdiction of the Examiner under care submitted by Lucille Hall, and the Rehearing Regulations, in that the as a consequence she the petitioner

decision is not based on any issue raised was not ready to rebut the testi

by the Petition for Rehearing.

2) The Examiner exceeded the jurismony given by the appellant; nor

diction and authority given him by the did the Notice advise the petitioner Director in the June 25, 1971, Order for that she could be represented by Rehearing which specifically limits the legal counsel.

Examiner to Rehearing "all issues preOn June 25, 1971, an order grant

sented by the Petition."

3) The April 7, 1971, decision of ing rehearing was issued by the Di

Rogers C. B. Morton, Secretary of the rector, Office of Hearings and Ap

Interior, expressly considered the very peals, wherein it was found that the

facts considered by Examiner Hammett,


and the Secretary of the Interior, on which the appellant could not have these same facts, expressly determined taken care of the decedent or her that “the requirements of 25 CFR 15.23

late husband. (d) were met in that the care was given

It is noted that the petitioner was on a promise of compensation and that compensation was expected." And Ex- not aware of the technical requireaminer Hammett is without jurisdiction ments and procedures necessary for or authority to overrule the Secretary of

il proper preparation or presentathe Interior on this point. 4) The Examiner exceeded his author

tion of her case, and was not foreity and jurisdiction in attempting to act

warned in the Notice of Hearing to as an appeal court and to expressly over- Determine Heirs and Probate Will rule the decision of April 7, 1971, of the

because the claim was not made Secretary.

until hearing was in progress. 5) The decision of the Examiner is not supported by the facts, and the testi- A rehearing will be granted mony quoted by him clearly shows that

where the original hearing did not care was given on a promise of compen

conform with the standards of a sation

and that compensation expected.

full opportunity to be heard em6) The decision of the Examiner is bodied in the Administrative Probased on a mistake in Law in that in cedure Act. Estate of Little Toby order to reach his decision, the Exam

(Tobin), A-24519 (February 14, iner has completely disregarded the dictionary and common and legal meanings

1947). of the words “promise of compensation”, The petitioner did not have the and a correct interpretation of the mean

requisite knowledge, background, or ing of these words would lead to the

understanding and was not repreallowance of Appellant's claim. 7) The decision of the Examiner is a

sented by counsel. Under such cirmiscarriage of justice and denies justice cumstances, the specific allegations and equity to appellant.

technically required by the regulaThe petition for rehearing, tions may be inferred from the petiamong other things, indicated that tion, the record, and the subsequent the petitioner was not advised of the incidents and circumstances of the claim of Lucille Hall in the Notice case. Estate of Lucille Mathilda of Hearing to determine Heirs and Callous Leg Ireland, 1 IBIA 67, 78 Probate Will, because of which she I.D. 66 (1971). was not ready to rebut the testimony We cannot agree with the appelgiven by Lucille Hall nor was she lant and conclude that the Judge advised that she could be repre- did not exceed his authority and sented by counsel. Moreover the only jurisdiction with respect to the available attorney was out of the issues raised by the Petition for area and unavailable. The petition Rehearing. further stated that the appellant at- We turn now to consideration of tempted to coerce the decedent into the claim of Lucille Hall for care executing a new will. The petition under 25 CFR 15.23(d) which enumerated certain periods during provides:

April 17, 1973


Claims for care will not receive favor- or about 1959 to marry or go their able consideration unless clear and con

separate ways, but that the appelvincing proof is offered showing that the

lant continued to live with the care was given on a promise of compensation and that compensation

decedent Angeline Iron Bear and

was expected.

her late husband, Charles Iron The Department long ago con

Bear, until the demise of Angeline cluded that a decedent's promise to

on April 7, 1970, except for several give land to a claimant in return for periods of absence. care and support cannot be con

3) The decedent wanted the apstrued as "compensation” within pellant to continue school; that she the meaning of that term in 25 CFR

in fact went to vocational school 15.23(d). Estate of Frank Puck-ke

from late fall 1959 to the spring or shin-no, IA-1373 (March 15, 1966);

summer of 1960, when she dropped See also Estate of Albert Windy,

out. A-25452 (September 21, 1948).

4) The appellant began receivDepartmental decisions have con- ing welfare payments in or about sistently held that services per

1966. formed by persons in family rela- 5) The appellant gave birth to tions are presumed to be gratuitous four children while living with the and in the absence of a contract, ex

decedent, one of which was suppressed or implied, providing for ported by the decedent. payment of compensation for the 6) The decedent received $100,services rendered the decedent, no

000 on an oil lease which she shared claim for compensation out of the

with the grandchildren including estate may be allowed. Estate of the appellant. Ralph Old Dog, IA-11 (October 5,

The appellant testified that she 1919); Estate of Little Toby dropped out of school while in the (Tobin), A-24519 (Supp.) (No- 9th grade in 1959 to take care of her vember 24, 1947).

grandfather, Charles Iron Bear. He The record on rehearing estab

did not ask her to drop out of school, lished that:

nor did she expect to be com1) The appellant, her sisters and pensated for the alleged care she brothers, lived with and were cared gave the grandparents. for and supported by the decedent The appellant further testified from the time the appellant was 3

that she did not file a claim against years old, appellant's mother hav

the grandfather's estate upon his ing died in or about 1948.

death because the decedent, Ange2) The appellant's sisters and

line Iron Bear, told her that Charles brothers left the decedent's home in

Iron Bear told her that he wanted

the appellant to have all of the Iron * The regulation has been superseded by a Bear land and that the decedent new regulation which is substantially the same. See 43 CFR 4.250(d) (1972).

Angeline Iron Bear would leave

[ocr errors]

this land to the appellant. This school to take care of him. My grandtestimony was uncorroborated. No mother was in the hospital. (Tr. 20.) one was present during this conversation, nor did anyone hear the Q. Was * * * did you do this on your decedent make such a promise.

own or did they * * *?

A. Well, there was no one else that Further, the appellant testified

would do it so I quit school. that two weeks before her death the

Q. Did he specifically ask you to quit decedent told her that she wanted school or did you ever have any conversa

tion with him about quitting school to to change her will. This testimony

take care of him, or with Angeline? was corroborated by a social worker

A. No, I just did it. with the Bureau of Indian Affairs.

Q. Was this Charles Iron Bear? A memorandum prepared by the ap

A. Yes.

Q. How long was he alive? pellant incorporating the changes

A. Until '65. the decedent wished to make in the

Q. You provided the same kind of care will was accepted into evidence as for him as you did for Angeline?

A. Yes. Exhibit A during the initial hear

Q. Did you file a claim in his estate? ing. However, there was no mention

A. No. in it of wishing to give all of the

Q. Why not? Iron Bear land to the appellant.

A. Because, when he gare all of his

land to my grandmother and to one of Angeline Iron Bear died without

his grandsons and he said when grandma amending or altering her will to in

died she was supposed to give me all of clude the contents of Exhibit A. the Iron Bear land for taking care of Pertinent portions of appellant's him.

Q. Did he tell you this? testimony taken from the transcript

A. He told my grandmother that and of the initial hearing held on June

my grandmother told me that she was 26, 1970, are hereinafter set forth:

going to leave all the Iron Bear land to

me. (Tr. 21.) Q. Lucille what is the nature of the claim you are filing against this estate?

A. For the care of my grandmother Q. When was it that you made these and her husband. (Tr. 18.)

arrangements with Angeline concerning Q. How long did you provide care for

your compensation for care? How long the deceased, Angeline Iron Bear?

before she died? A. Since '59.

A. What do you mean?

Q. That Exhibit A doesn't have any Q. What kind of care did you provide date on it. for her?

A. Do you want to know when I made A. Oh, I drove for her, drove for her

that. After my grandfather died she told and cleaned her house and cooked for

me she was going to leave me that Iron her and ironed her clothes. (Tr. 19.)

Bear land for taking care of him. (Tr.

24.) Q. How did you come to care for An- Q. For taking care of him? geline and her husband ?

A. Yes. A. Well, my grandfather was going Q. Did you have any arrangements blind in one eye and I dropped out of with her for her care?

April 17, 1973

A. She gave me a piece of land for hers dent that the appellant's services self.

were rendered in expectation of Q. This is satisfactory to you?

compensation. The services renA. Yes. Q. Then the $9,800 would all be charge

dered between 1959 and 1970 conable to the care you gave her husband

sisted of chauffeuring, washing, would that be right?

cleaning and cooking. It is conceded A. Well, for both of them.

that the appellant did render servQ. How long was it before she died did

ices of this nature. However, duryou make up this paper Exhibit A? A. About two weeks before she died.

ing the entire period covered by (Tr. 25.)

the claim, no compensation for At the rehearing, attorneys for

such services was paid nor was the petitioner and appellant stipu- it shown that the appellant at lated that the matter of the claim

any time during that period as

serted a claim for compensation. of Lucille Hall could be heard and considered for decision on the rec

In her testimony taken at the ord as a whole, including the evi

initial hearing and elaborated upon dence adduced at the first hearing of

on rehearing, the appellant stated June 26, 1970.

in positive terms that she made no Pertinent portions of appellant's agreement with the decedent or her testimony taken from the transcript grandfather, and that she took care of the rehearing held on Septem

of her grandfather because there ber 23, 1971, are hereinafter set

was no one else that would do it. The forth:

uncorroborated oral promise of the

decedent made a few weeks before Examiner * * * Did you

ever have

her death to leave all of the Iron any agreement with your grandmother as to any fixed amount of money that she

Bear land to the appellant is rewould pay you for taking care of the garded at most as only an expreschildren or taking care of her husband ? sion of her testamentary intention, A. No. (Tr. 84.)

which would be subject to change at Q. Did you take care of her in expectation that you would receive some

any time. This is further supported thing for taking care of her?

by the evidence adduced at the reA. Well I was taking care of her and hearing to the effect that the appelshe told me that she was giving me that land cause my grandfather was gonna

lant was brought up by the decegive it to me. (Tr. 84, 85.)

dent from early childhood, who fed, Q. Ok. Did you understand that it clothed and took care of her, her would be land that she would leave to

sister, brothers, and appellant's own you by will or land that she would give to you during her lifetime?

child, without expecting anything A. Land that she would give me in her

in return. In addition to all this, the will. (Tr 85.)

appellant received a share of $100,

а The record falls far short of es- 000 received by the decedent on an tablishing any understanding on oil lease, and, was named as a benethe part of the appellant and dece- ficiary in her will.

« PrejšnjaNaprej »