While I have not much if any fault to find with the law stated in the numerous authorities cited in support of the opinion prepared by Mr. Justice Kennamer, I find myself wholly unable to perceive their applicability to the undisputed facts presented by the record before us. While the case at bar purports to be an action in ejectment, a purely legal proceeding, and it is so treated by the learned Justice, what the plaintiff really seeks to do is to establish heirship and contest a duly probated will, valid upon its face, devising the property claimed to the defendant, who went into and is holding possession under the will.
Statutes varying greatly in the different states prescribe the jurisdiction of courts in the establishment and determination of heirship, or the right to share in the distribution of property left by a deceased person who dies intestate. In this jurisdiction the court having exclusive jurisdiction over proceedings of this character is the county court sitting as a probate court. As the establishment and determination of heirship, or the right to share in the distribution of the estate of a decedent dying intestate is governed solely by statute, the citation of authorities from other states upon this question will not prove useful, unless it is shown that their statutes governing descent and distribution and conferring jurisdiction upon courts in what are commonly called probate proceedings, appear to be the same as ours. In this state the jurisdiction of the county court sitting as a probate court is very extensive. Indeed, there are very few states where the jurisdiction of these courts is so broad. But in the case at bar, as I view it, there is no necessity for construing such statutes, either of this or any other state, for the reason that the deceased person leaving the land in controversy did not die intestate, but left a will valid upon its face, which was subsequently probated by the court having jurisdiction over such matters, devising the land to the defendant, who went into possession under the will.
Neither is it necessary to notice the numerous authorities cited in the opinion touching *Page 214 the legal effect of probate upon a will. That question is settled in this jurisdiction, substantially as held in the authorities cited, by section 1208, Rev. Laws 1910, which provides, in substance, that the county court must admit the will to probate when satisfied from the testimony that the will was executed in all particulars as required by law and that the testator was of sound mind at the date of its execution. In the case at bar, the factum of a will valid upon its face being conceded, there can be no reasonable doubt that the title to the land devised passed by the will itself to the devisee at the time of the death of the testator, and that he immediately acquired the right of possession upon the probate of the will. 40 Cyc. 1995, and cases cited.
Now, starting at this point, it is fairly obvious that in these circumstances, the plaintiff is not entitled to possession of the devised premises as against the defendant, until he gets rid of the will in the manner prescribed by the governing statutes of the state. The will, being valid upon its face, will not break down by its own weight; and, being clear and not obscure or ambiguous in its terms, it cannot be construed away by the will. 40 Cyc. 1995, and cases cited.
In these circumstances the plaintiff is driven to the necessity of commencing an action to set aside, or, in other words, contest, the will in some court having jurisdiction over that sort of an action.
And this is precisely what the plaintiff is seeking to do. He seeks to set aside the will upon a purely legal ground of contest. He alleges that he is the parent and sole heir of the deceased testator, who was a full-blood Indian, and that the will is invalid because it seeks to devise the land to another person without being acknowledged and approved as required by act of Congress of April 26, 1906, section 23, 34 Stat. 137, as amended by the act of Congress of May 27, 1908, 35 Stat. 312. As I see it, the trouble with plaintiff's case is that it was commenced in a court which under the law has no original jurisdiction to set aside a will upon the grounds alleged. That this is a purely statutory ground for contest over which the county court has sole original jurisdiction, clearly appears from section 6219, Rev. Laws 1910, which provides:
"When a will has been admitted to probate, any person interested therein may at any time within one year after such probate, contest the same or the validity of the will. For that purpose he must file in the court in which the will was proved a sworn petition in writing containing the allegations that evidence discovered since the probate of the will material facts of which must be set forth, shows:
"First. That a will of a later date than the one proved by the decedent, revoking or changing the former will, has been discovered and is offered; or,
"Second. That some jurisdictional fact was wanting in the former probate; or,
"Third. That the testator was not competent, free from duress, menace, fraud, or undue influence when the will allowed was made; or,
"Fourth. That the former will was not duly executed and attested."
As I view this case, both the petition of the plaintiff and the undisputed facts clearly show that this is an attempt to contest a will under the guise of an action in ejectment in the district court, which court, as the foregoing statute discloses, has no original jurisdiction to determine the validity of wills. The majority opinion, it seems to me, holds that this may be done. I cannot agree with its ruling.
In England it is well settled by a long series of decisions that the comprehensive jurisdiction exercised by courts of chancery in setting aside other instruments does not extend to wills, and that those courts have no jurisdiction to determine the validity of a will of either personal or real property. 40 Cyc. 1251.
In the United States the courts have uniformly held that the principles established in England apply and govern the cases arising under the probate laws of this country, and that whenever in any state the power to probate a will is given to a probate court, the decree of such court cannot be set aside or vacated by the court of chancery, even on the ground of fraud or mistake, except where there is no adequate remedy at law, or where the circumstances are exceptional. 40 Cyc. 1252.
In the various states jurisdiction over actions to set aside wills is vested in different courts. For example: In Arkansas. Illinois, Kansas, and several other states, exclusive original jurisdiction is vested in district or circuit courts; in Alabama and several other states exclusive original jurisdiction is vested in courts of equity; in Oklahoma and the great majority of states exclusive original jurisdiction is vested in probate courts. See 40 Cyc. 1253, and the great number of cases cited on this question. But the courts of all these various jurisdictions are in accord in holding that such proceedings, being purely statutory can only be brought, and successfully maintained, *Page 215 in the court, within the time, and on the ground prescribed in and by the statute which authorizes such actions. 40 Cyc. 1240. The case of John Dean et al. v. John Swayne, 67 Kan. 241, illustrates very well my position in the case at bar. In Kansas, as we have seen, the district court has exclusive original jurisdiction over actions to set aside wills. One John Swayne filed proceedings in the probate court alleging that he was the nephew and only heir in law of the deceased testator; that the devise made by the testator was void because of the uncertainty of the beneficiary intended by said testator to take under the devise. A motion was made to strike this proceeding from the files, which was sustained by the probate court. From this order Swayne appealed to the district court, which court overruled the order of the probate court and reinstated the proceeding. From this action of the district court error was prosecuted to the Supreme Court. The Supreme Court reversed the action of the district court holding that "The district court has exclusive jurisdiction in actions to contest wills, and such actions must be brought within two years from the probating of the will. The proceeding in this case was an attempt to contest the will and the probate court has no jurisdiction thereof." The only difference between these two cases arises out of the fact that in Kansas the district court is invested by statute with exclusive jurisdiction in actions to set aside wills, while in this state the county court sitting as probate court has exclusive jurisdiction over such actions; there is no difference in principle between them. In both cases the plaintiffs attempt to contest a will in a court not invested with original jurisdiction over such actions, and if this court follows the rule announced by the Kansas Supreme Court, it will reverse the judgment of the district court and remit the plaintiff to his remedy by proper action to set aside the will in the county court. When rightly understood there seems to be no conflicting in the authorities on this question, so far as I can find. As I have hereinbefore pointed out, there are states where the district courts and courts of equity are invested by statute with jurisdiction in actions to set aside wills, and, of course, in those states the jurisdiction of such courts over actions of this sort is sustained. But such authorities are of no weight in this jurisdiction on account of the difference in the statutes of the respective states hereinbefore pointed out. I have refrained from discussing any of the Indian features of the case because, in my opinion, it does not involve any of the rights of the plaintiff as an Indian, whatever they may be. I deem it to be too clear for controversy that wherever a situation arises which requires an Indian, of whatever blood, to commence an action to set aside a will upon any of the statutory grounds, he must, like any other citizen, resort to the courts of the state vested by law with jurisdiction over that sort of an action for the purpose of asserting his rights. And this has been the rule in this jurisdiction, both as a territory and a state, applicable to Indian and white citizen alike, for so many years that it has become a rule of property, if this time-honored rule is to be given any consideration whatever. The following are a few of the many cases so holding: Ward v. Board of Commisssioners, 12 Okla. 267. 70 P. 378; Homer v. McCurtain, 40 Okla. 406. 138 P. 807; Bell v. Fitzpatrick, 53 Okla. 574, 157 P. 334; In re Byford's Will,65 Okla. 159, 165 P. 194; In re Impunnubbee's Estate.49 Okla. 161, 152 P. 346; Lucas v. Lucas. 65 Okla. 96,163 P. 943.
It seems to me that a decent respect for the rule of stare decisis and the stability of land titles, if nothing more, forbids overruling this long line of decisions at this late day.