ERROR TO THE SUPREME COURT OF THE STATE OF OKLAHOMA
White, McKenna, Holmes, Hughes, Van Devanter, Pitney, McReynolds
MR. JUSTICE VAN DEVANTER delivered the opinion of the court.
This was a suit to set aside a will probated in common form and to avoid its probate. The suit was begun in the United States Court for the Indian Territory, wherein the will had been probated, and was transferred to an Oklahoma court when that State was admitted into the Union. The plaintiff ultimately prevailed and the Supreme Court
of the State affirmed the judgment. 38 Oklahoma, 596; 43 Oklahoma, 267.
The Federal question in the case is whether certain statutes bearing upon such a suit were put in force in the Indian Territory by the act of May 2, 1890, c. 182, § 31, 26 Stat. 81, 94, whereby Congress adopted and extended over the Indian Territory certain general laws of Arkansas "in force at the close of the session of the general assembly of that State of 1883, as published in 1884 in the volume known as Mansfield's Digest," where "not locally inapplicable or in conflict with" that or some other act of Congress. In Arkansas there were probate courts and courts of general jurisdiction designated as circuit courts, while for the Indian Territory only one court had been established at that time, and it was a court of general jurisdiction. In view of this the act declared that "the United States Court in the Indian Territory herein referred to shall have and exercise the power of courts of probate under said laws," and "wherever in said laws of Arkansas the courts of record of said State are mentioned the said court in the Indian Territory shall be substituted therefor."
Among the Arkansas laws enumerated in the act was chapter 155 containing sections numbered from 6490 to 6548. The section under which the will was probated declares:
"Sec. 6522. When any will shall be exhibited for probate, the court of probate . . . may and shall receive the probate thereof in common form, without summoning any party, and shall grant a certificate of probate, or, if the will be rejected, shall grant a certificate of rejection; . . ."
Other sections (6509 and 6521) provide for an appeal to the circuit court from an order of the probate court establishing or rejecting a will and for bringing in parties and giving a hearing de novo upon the appeal. The sections under which the suit was brought read as follows:
"Sec. 6523. Any person interested who, at the time of the final decision in the circuit court, resided out of this state, and was proceeded against by order of appearance only, without actual appearance, or being personally served with process, and any other person interested who was not a party to the proceedings by actual appearance, or being personally served with process, may, within three years after such final decision in the circuit court, by a bill in chancery, impeach the decision and have a re-trial of the question of probate; and either party shall be entitled to a jury for the trial thereof. An infant, not a party, shall not be barred of such proceedings in chancery until twelve months after attaining full age."
"Sec. 6525. If any person interested in the probate of any will shall appear within five years after the probate or rejection thereof, any, by petition to the circuit court of the county if which such will was established or rejected, pray to have any such will rejected, if previously established, or proven, if previously rejected by the court of probate, it shall be the duty of the circuit court to ...