16 March 2014

Probate Records Part 2: Special Oklahoma Related Statutes

     Each state in the Union has its own unique probate laws and statutes. Records sometimes appear where you least expect them. Fore example, one of my Swedish immigrant ancestors was naturalized in the Cook County (IL) Criminal Court. Oklahoma has its own unique situations, mostly related to our having been the "Twin Territories" of Oklahoma Territory and Indian Territory AND due the way part of the state was opened to settlement.

     The Dawes' Commission spent many years "enrolling" Indians who resided in Indian Territory (and elsewhere, in some cases). A multitude of records exist purely as a result of Federal Laws and Dept. of Interior regulations that determined who would be enrolled. Even more records were created during the adjudication of disputes/appeals/ ect. to the rulings of the Dawes' Commission, Dept. of Interior, Tribal authorities and courts.

     It kind of reminds me of when I first started playing card games with my older siblings. It seemed that just as I got the hang of a game, my siblings would add a new rule. Multiple new rules. All very confusing and sometimes contradictory. Once Indian rolls were closed, "New Born" rolls were established. Inter-marrieds were allowed citizenship...then disallowed...then re-allowed. At least this is how the Daily Ardmoreite described it.

    Of importance regarding probate records are the following:
1) At the turn of the century (1900-ish) Indians were not considered capable of legally taking care of themselves and had to have a legal guardian. Then they were legal if they could speak/write English. Then children were allotted, but could not conduct legal transactions without having a guardian appointed. If a child died, a legal guardian had to be appointed to sell or lease the child's property. All these situations provide legal "fodder" in the form of court cases...many of which are in the form of probate files.
2) Remember that PROBATE includes estate and will, as well as guardianships, curatorships and lunacy/incompetency. (At least this was the case in territorial and early Oklahoma.)
3) Many of these probate records are available on-line at Family Search's website.
4) Most of the Indian records (Dawes' Commission records) are available on Fold3. These can be accessed through many libraries as a library card holder. The Oklahoma Metropolitan Library System allows access to Fold3 by logging in with your library card. And you can do it from home.

     THE other situation I referred to above is related to the way Oklahoma was opened to settlement. There were land runs and lotteries. "Original" settlers were issued land patents (original deeds) after a certain number of years of residence and improvement of there homestead. In many cases the original settler died before the patent was issued and the patent was then issued to the "heirs of" the original settler. This created a cloud to the title if the estate of the original settler was never probated. I have noticed in each western Oklahoma County from which I have extracted probate information a spate of probates from late 1919 to about 1922 for people who died 10 to 30 years earlier.

     Recently I came across a probate filed in Washita County records that explained this. It cited Senate Bill #60 of 1919 Session Laws of the State of Oklahoma...for the Determination of Heirship. I have not been able to track down a copy of the actual bill, but it allowed the current land owner to prove in court the history of the transfer of title back to the original patentee, file for determination of the heirs, and clear title to the land. So you may have had an ancestor who died in, say 1903, and he had filed on land in the Kiowa,Comanche & Apache opening of 1901. His death occurred before the required time to receive a land patent. The patent would have been issued to his wife/heirs if they proved up the property. However, this legally left a cloud on the title. Senate Bill #60 allowed the title to be cleared through the probate process. but only after mid-1919. So his probate file would be dated 1920 or 1921.

     If you are like me, you check the records on about 3 to 5 years on either side of the death. It would be easy to miss the later filings allowed by Senate Bill #60. Nor would you, like me, think to look for a probate file for a deceased infant or minor child. However, if the infant/child was an Indian allottee, there would have to be a probate file to legally transfer title to the land. So be aware of legal issues and laws regarding probates for time period your ancestors lived. They vary from state to state and period to period. But they are a treasure trove of information.

1 comment:

  1. Where does one find the information you have gathered?

    ReplyDelete