forceable against the estate or any of its assets.

[23 F.R. 942, Feb. 13, 1958, as amended at 28 F.R. 8288, Aug. 13, 1963]

§ 15.26

Claims for attorney fees.

Attorneys representing Indians under the regulations in this part shall be allowed compensations in reasonable amounts. In determining attorneys' fees, consideration shall be given to the fact that the property of the decedent is restricted or held in trust and that it is the duty of the Department to protect the rights of all interested parties. Such fees as may be allowed shall be charged against the interests of the attorneys' clients. § 15.27

Witness and interpreter fees.

Witnesses are expected to testify and interpreters are expected to serve without compensation. When it is necessary to pay the expenses of a witness or an interpreter, they must be paid by the party calling him. The examiner of inheritance is authorized in any situation to call a witness or an interpreter upon his own initiative, and the examiner may, in his discretion, allow per diem at a rate of not to exceed $3 each for not more than two disinterested witnesses and two interpreters, and the superintendent is authorized to pay said sums from the estate immediately if funds are available. On the determination of the heirs or final action on the will, said sums shall be charged against the interest of the party in whose behalf said witnesses or interpreters were called, unless such party does not share in the estate, in which event the charge can be made against the estate.

§ 15.28 Making, approval as to form, and revocation of wills.

(a) An Indian of the age of 21 years and of testamentary capacity, who has any right, title, or interest in trust or restricted property, may dispose of such property by a will executed in writing and attested by two disinterested adult wit

nesses.

(b) Where a will has been executed and filed with the superintendent during the lifetime of the testator, the will shall be forwarded by the superintendent to the examiner of inheritance, who shall pass on the form of the will and then return it to the superintendent with appropriate instructions. A will shall be held in absolute confidence, and its con

tents shall not be divulged prior to the death of the testator.

(c) The testator may, at any time during his lifetime, revoke his will by a subsequent will or other writing executed with the same formalities as are required in the case of the execution of a will, or by physically destroying the will with the intention of revoking it. No will that is subject to the regulations of this part shall be deemed to be revoked by operation of the law of any State.

§ 15.29 Care of personal property pending administration.

(a) The superintendent is authorized to assume custody or control of all trust or restricted personal property of a deceased Indian, in addition to individual Indian money, and shall take such action with respect thereto as, in his judgment, may be necessary for the preservation of such property or for the most advantageous sale thereof, pending the probate of the estate; and all expense, including the expense of roundup, branding, care, and feeding of livestock shall be a proper charge against the estate and may be paid by the superintendent from the funds in the decedent's individual money account, or from the proceeds of sale of the property.

(b) If, upon the completion of the probate proceedings, the heirs as found are unable to agree upon a proper division of such personal property, it shall be sold and the proceeds distributed in accordance with the applicable law of descent or under the terms of an approved will. The superintendent shall prepare a complete inventory of such personal property, together with an appraisement thereof, and retain the same in decedent's file for the information of the examiner of inheritance.

(c) When personal property is bequeathed to an individual, such legatee may be given possession thereof upon the death of the testator if he signs an agreement to return such property or the appraised value thereof in the event the will is disapproved. The superintendent may, in his discretion, require a bond.

(d) The provisions of this section shall apply to the estate of any Indian holding a homestead allotment upon the public domain or an interest therein.

§ 15.30 Summary distribution.

When an Indian dies intestate leaving only restricted personal property or cash

of a value of less than $250, the examiner or superintendent shall assemble the apparent heirs and hold an informal hearing with a view to the proper distribution thereof. A memorandum covering the hearing shall be retained in the agency files showing the date of death of decedent, the date of hearing, the persons notified and attending, the amount on hand, and the disposition thereof. In the disposition of such funds, the examiner or superintendent shall have in mind the payment of funeral charges and expenses of last illness and any just claims for necessaries furnished decedent; and the balance, if any shall be credited to the heirs as found. This section shall not include the so-called pony claims.

When, subsequent to the final decision in any estate, it is found that property belonging to the estate has not been included in the inventory of the estate, the decision relating to the estate shall be modified to include the omitted property. When the property to be included takes a different line of descent from that shown in the original decision, a supplemental hearing to determine the heirs thereto shall be had in accordance with the regulations in this part. modifications shall be furnished to the superintendent and to all those persons who share in the estate.

Copies of such

(b), (c), and (d) of this section, shall apply to the determination of heirs or devisees of deceased Indians to whom funds of the Kaw Tribe of Indians are directed to be distributed by the act approved August 9, 1955 (69 Stat. 559).

(b) For the purpose of making determinations under this section, the examiner of inheritance may recognize or adopt final decrees of distribution entered by courts of competent jurisdiction.

(c) No claim, fee, or charge, other than debts due the United States, shall be recognized or allowed against any part of the Kaw funds to which an Indian beneficiary is entitled.

(d) Sections 15.18 and 15.33 shall have no application in the distribution of the Kaw funds.

16.10

Objections must be noted.

16.11

Attorneys, arguments and briefs. Attendance of witnesses.

16.12

16.13

Minors represented at hearing.

Qualifications and procedure.

Distinterested witnesses in minor's

estate.

16.14 Hearing and testimony.

16.15

Limit number of witnesses.

16.16

Witnesses' fee.

16.17

Contents of record.

16.18

Supplemental hearings.

16.19

Rehearings.

16.20

16.21

Limitations on rehearing petitions. Reopenings.

16.22

Procedure.

(a) "Secretary", means Secretary of the Interior.

(b) (1) "Commissioner”, means Commissioner of Indian Affairs, Department of the Interior.

(2) The function of determining heirs and probating estates in conformity with the provisions of these regulations shall be performed by the Commissioner, with the right of appeal to the Secretary within 60 days from the date of notice of the Commissioner's decision.

(c) "Area director" means the officer An charge of an area office of the Bureau of Indian Affairs, or his duly authorized representative.

(d) The term "examiner" means any employee upon whom authority has been conferred by the Secretary or Commissioner to conduct hearings in accordance with these regulations.

(e) "Agency", shall refer to the Five Civilized Tribes Agency, Muskogee, Oklahoma.

(f) "Department" shall mean Department of the Interior.

(a) As soon as possible after the death of a restricted Indian, the area director shall cause to be prepared an inventory showing in detail the description and value of the restricted estate of such deceased Indian.

(b) When the inventory discloses that such restricted estate consists only of funds or securities under the control of the Department not to exceed an aggregate value of $2,500, the area director shall furnish a certified copy of said inventory to the examiner, together with information as to the date of death and place of residence of said decedent.

§ 16.2 Notice of hearing.

As soon as possible after the receipt of the inventory provided for in § 16.1, the examiner shall post for 20 days in five or more conspicuous places in the vicinity of the place of hearing, notice of the time and place of the hearing when testimony will be taken to determine the heirs of the deceased Indian (naming him), and call on all persons interested to attend the hearing.

§ 16.3 Examination of records.

Prior to the hearing the examiner shall carefully inspect the allotment records, census cards, annuity rolls and any other records on file at the agency and obtain all other information which may enable him to make a list of the apparent heirs of the deceased Indian, but only in contested cases or in cases involving material conflict between the records and the evidence shall it be necessary for the examiner to prepare and forward with his report exact copies of such records. § 16.4 Personal service on interested parties.

A written notice of the proposed hearing giving full information as to the estate, names of alleged claimants, time and place of hearing shall be served either personally or by mail on each claimant or presumptive heir. Such notices must be sent at least 10 days prior to the date of the hearing.

§ 16.5 Proof of service.

A copy of each notice to a claimant or presumptive heir endorsed by the person serving the same on the party to whom addressed that a copy of the within notice was delivered to him personally at the place named and on the day stated or an affidavit or copy of the notice endorsed by the claimant or presumptive heir that service was accepted on the day and at the place stated; or a certificate by the person mailing the notice that a copy of said notice was mailed to the interested party at his last known post office address, postage prepaid, or a registry receipt card, must be filed with the record of every case.

§ 16.6 Full notice must be given.

Unless a full 20-day notice has been given, no hearing shall be held except by special permission of the Commissioner: Provided, however, That in cases involving no contest the parties in interest may appear before the examiner and waive their right to said 20-day notice, and the examiner, in that event, is authorized to proceed with the taking of testimony; the same to be withheld until the time of hearing, when it shall be read aloud to permit any interested persons present to offer any objections thereto. In case no objections are offered at the hearing the examiner will proceed to hear the case in the usual manner.

Parties interested in any probate case before an examiner may appear by attorney. Such attorney must meet the requirements of the Department for admission to practice.

§ 16.9 Qualifications and procedure.

(a) Attorneys who appear before the examiner, the Commissioner or the Secretary, must submit a power of attorney from their respective clients, indicating specifically the powers delegated.

(b) In presenting their cases, attorneys appearing in probate matters will be required to adhere to the rules of evidence of the state in which the evidence is taken.

§ 16.10

Objections must be noted.

Whenever objections shall be made by an attorney to a question or answer, the objections shall be noted on the record by the examiner.

§ 16.11 Attorneys, arguments and briefs. Attorneys may appear before the Commissioner or the Secretary and submit written arguments or briefs on behalf of their clients. Written arguments or briefs must be filed within 30 days following the conclusion of the hearing and copies must be served on opposing counsel or litigants. The latter will then be allowed not to exceed 30 days in which to file a reply brief. Upon proper showing an extension may be allowed. § 16.12 Attendance of witnesses.

Present at the hearing must be at least two disinterested witnesses, who are acquainted with, and have direct knowledge of the family history of decedent. By personal investigation prior to the hearings the examiner should thoroughly acquaint himself with records and as far as practicable with the kind and value of the testimony which should be taken so that only material witnesses shall be summoned.

§ 16.13 Disinterested witnesses in minor's estate.

In case the decedent is a minor, unmarried and without issue and the heirs are members of the immediate family of the decedent, the examiner may, in his discretion, dispense with the presence of disinterested witnesses, provided the testimony of the interested witnesses is corroborated by the records of the Department and in such instance the examiner shall include in the record his certificate to such effect, together with specific reference to the records or cases furnishing such corroboration.

§ 16.14 Hearing and testimony.

The examiner shall have full responsibility for the conduct of the hearing. The witnesses shall be examined on oath; their testimony shall be reduced to writing and signed at the end thereof. Any claimant may cross-examine a witness. If, in addition to oral testimony, affidavits or depositions are introduced, they must be read, and any opposing claimant may require the presence of the affiant, if practicable, either at that or a subsequent hearing, and opportunity shall be given for cross-examination or for having counter interrogatories answered. All statements, testimony and affidavits at the hearing must be made a part of the record.

§ 16.15 Limit number of witnesses.

When the evidence is clear, in uncontested cases, the examiner may, in his discretion, limit the number of witnesses who are formally examined. When the case is established beyond doubt and to the satisfaction of the examiner, he may limit further testimony by securing a statement from additional witnesses present, that the testimony as given is fully understood by them and that the same is true.

§ 16.16 Witnesses' fee.

Witnesses are expected to testify without compensation, but when necessary expenses must be paid by the party calling them. If the examiner is satisfied that material evidence from disinterested persons should be procured, any expense thereof will be paid by the area director from the funds of the party calling such witness. When interested parties are unable to obtain disinterested witnesses for

lack of funds, the examiner may, in his discretion, allow the sum of $2.00 each to pay not to exceed two disinterested witnesses, and the area director is authorized to pay said sums from the instant estate, immediately, if funds are available. On determination of the heirs or final action on the will, said sums will be charged against the person or persons in whose behalf said witnesses were called, unless such persons do not participate in the estate, in which event the charge will be made against the instant estate.

§ 16.17 Contents of record.

The record must contain: (a) copy of public notice of hearing and notice to creditor claimants; (b) copy of notice to heir or heirs; (c) proof of service of notice; (d) testimony taken at hearing; (e) affidavits and depositions produced at hearing; (f) certified copies of marriage records and decrees of divorce, if filed; (g) all papers and memoranda of the hearing; (h) names of all persons in interest at the hearing; (i) statements of reasons for absence of interested parties, if obtainable; (j) certified copy of inventory; (k) the record must also be accompanied by a proper order for the signature of the Commissioner; (1) a duplicate record of the case shall be made and kept in the agency files to which there shall be attached a copy of the approved order or finding of the Commissioner; (m) in all cases in which the heirs of a decedent are to be determined, the examiner shall include in his report, in the Summary of Report on Heirs, the citations to the sections of the laws under which the determination is made; (n) in reports on testacy cases, the original will executed by decedent, together with supporting affidavits and statements.

§ 16.18 Supplemental hearings.

Supplemental hearings should be held on heirship cases returned by the Commissioner for further evidence on material questions of fact, upon such notice as will give parties in interest opportunity to appear; in no case shall such notice be less than 5 days. This shall also apply to supplemental hearings held by the examiner prior to the submission of the case to the Commissioner. This section does not apply to cases returned for clerical corrections or for additional data, which can be supplied from the records of the agency.

§ 16.19 Rehearings.

(a) Any aggrieved person claiming an interest in the trust or restricted property of an Indian, who has received notice of the hearing or who was present at the hearing, may file a petition for rehearing within 60 days from the date of notice on him of the determination of heirs or action on a will. A petition so filed shall act as a supersedeas until otherwise directed by the Commissioner. Distribution of the estate may be made by the superintendent after 60 days have elapsed from the date of notice of the determination of heirs or action on the will unless a petition for rehearing is received within such period by the superintendent or unless otherwise directed by the Commissioner.

(b) Any such petition for rehearing must be under oath and must state concisely and specifically the grounds upon which it is based and must be accompanied by the sworn statements of at least two distinterested persons having knowledge of the facts. It should be addressed to the Commissioner and submitted through the area director.

(c) If proper grounds are not shown the rehearing will be denied by the Commissioner. If the petition for rehearing is found to have merit the petitioner may be required to serve a copy of his petition, together with all argument on the adverse party within 15 days. The adverse party will be allowed 30 days thereafter in which to file his answer.

(d) Thereafter the case will be again considered and appropriate action taken, which may consist either in adhering to the former decision or modifying or vacating same, or the making of any further or other order deemed warranted. Interested parties may, within 60 days after the date of notice of the Commissioner's decision under this section file an appeal from that decision with the Secretary.