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.

(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 I 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 ad

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dressed 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.

§ 16.20 Limitations on rehearing petitions.

No decision of the Commissioner will be reconsidered on the petition of any person who had notice of the hearing or who was present at such hearing and received notice of the Commissioner's decision, unless such petition is filed within the 60-day period mentioned in § 82.19.

§ 16.21 Reopenings.

Petitions for reopening a determination of heirs or action on a will, will not be considered when 3 years or longer have elapsed since the decision of the Commissioner. Within that period, but not thereafter, any person claiming an interest in the estate who had no notice of the original proceeding may petition for reopening of the case. Any such petition must be in writing addressed to the Commissioner and submitted through the area director. All grounds for reopening must be set forth fully. If based on alleged errors of fact all such allegations must be under oath and must be accompanied by affidavits, or other supporting evidence. If proper grounds are not shown the petition may be denied by the Commissioner. If the petition appears to have merit the Commissioner shall cause service to be had on the adverse parties of all papers filed by the petitioner and an opportunity shall be afforded the adverse parties to answer the petition filed within 30 days after

After a reopening has been granted the matter will be referred by the Commissioner to the superintendent for further proceedings as in an original case. § 16.23 Notice to creditors of estate.

The notice mentioned in § 16.4 shall also be directed "To all persons having claims or accounts against decedent" and when any such claims have been filed with the area director prior to the date of hearing by the examiner, and the claimant may be known, service of such notice of hearing shall be made upon such claimant by mail or otherwise in the discretion of the examiner.

§ 16.25

Statute of limitations.

Claims against estates of deceased Indians that are barred by the State statute of limitations will not be allowed in any case.

§ 16.26 Affidavit to claims.

All claims against the estates of deceased Indians must be filed in triplicate and must be itemized and all dates given. Such claims must be supported by affidavit of the claimant or someone in his behalf, that the amount is justly due from the decedent; that all payments credited thereon were in fact made; and that there are no offsets to the same to the knowledge of the affiant.

The following types of claims against the estates of deceased restricted Indians may be allowed: (a) those based on a debt contracted by the decedent and authorized during his lifetime by the area director; (b) those for last illness or funeral expenses in reasonable amounts, but in no event will funeral expenses be allowed in excess of $100.00 unless previously authorized by the area director; (c) those of exceptional merit which are not otherwise barred and which have been approved by the area director or other officer in charge. § 16.29

Attorney fees.

In the event of the death of a restricted Indian leaving a will disposing of his restricted estate consisting only of funds or securities under the control of the Department not exceeding an aggregate value of $2,500, a hearing shall be held after notice in accordance with applicable provisions of this part covering similar property of an Indian who died intestate. The examiner shall inquire fully into the mental competency of the Indian; the circumstances attending the execution of the will; the influences which induced its execution; and the names of those entitled to share in the estate under the applicable law of descent. When the distribution proposed by the will is contrary to the applicable laws of descent, and the estate is disposed of in whole or in part to a person or persons who would not otherwise inherit, the best available evidence should be obtained as to the reasons for such action. Should the will be approved by the Commissioner, an order will be issued to that effect to the superintendent and distribution of the estate shall be effected after the period prescribed in § 16.19 has elapsed, in accordance with the terms of the will and the Commissioner's order. Should the will be disapproved, the order of the Commissioner will so state and the heirs shall be determined and the estate distributed as

in the case of other intestate property dealt with in this part. An appeal may be taken to the Secretary within 60 days from the date of notice of approval or disapproval of the will.

§ 16.31 Rights of executors and administrators.

Executors or administrators shall not be recognized in any proceedings conducted under the regulations of this part. § 16.32 Probate fees.

Prior to distribution of the estate to the individuals found entitled thereto, the area director will collect out of the funds or other property involved and pay into the Treasury of the United States a fee of $20.00 in those cases where the value of the estate is $250.00 or more but does not exceed $1,000.00; a fee of $25.00 where the value of the estate is more than $1,000.00 but less than $2,000.00; and a fee of $30.00 where the value of the estate is $2,000.00 or more.

§ 16.33 Summary distribution.

(a) Where upon preparing an inventory under § 16.1 it is disclosed from the records of the area director that an Indian died seized of no lands or the lands have since been lawfully alienated, and that the restricted estate of the decedent constitutes a sum of money, not exceeding $500, on deposit to the credit of the decreased Indian, such funds may be disbursed on the basis of the requirements stated in this section, and without regard to the other provisions of this part, except where made applicable specifically by the provisions of this section.

(b) Where the decedent's restricted estate consists of the sum of money as stated in paragraph (a) of this section, such funds may be disbursed on proof of death and heirship or bequest satisfactory to the Secretary of the Interior or his authorized representative.

(c) The transfer of funds disbursed under this section shall not be taxable. No claims shall be allowed against restricted estates governed by this section, except for debts owed to the United States.

(d) A copy of the order of distribution of funds shall be mailed to each party who was considered a possible claimant to any portion of the funds, as heir, legatee, or otherwise. Thirty days after the date of mailing of such copies, the order

Interested parties may appear in person or by attorneys at law. Attorneys must file written authority to appear for their clients in the proceedings. § 17.3 Pleadings, notice and hearings.

(a) The petition for approval of the will of a deceased Osage Indian may be set down for hearing at a date not less than 30 days from the date the petition is filed. Hearings shall be conducted only after notice of the time and place of such hearings shall have been given by mail. The notice shall be mailed not less that 10 days preceding the date of the hearing and shall state that the special attorney will, at the time and place specified therein, take testimony to determine whether the will of the deceased Osage Indian shall be approved or dis

approved. The notice shall list the presumptive heirs of the decedent and the beneficiaries under such will, and shall notify the attesting witnesses to be present and testify. It shall state that all persons interested in the estate of the decedent may be present at the hearing. The notice shall further state that the special attorney may, in his discretion, continue the hearing to another time or place to be announced at the original hearing.

(b) Any interested party desiring to contest approval of the will may, not less than 5 days before the date set for hearing, file written objections in triplicate, showing that a copy thereof was served upon attorneys for the proponent and other attorneys of record in the case. Such contestant shall clearly state the interest he takes under the will and, if a presumptive heir, the interest he would take under the Oklahoma law. The contestant shall further state specifically the ground on which his contest is based.

§ 17.4

Service on interested parties.

A copy of the notice of hearing shall be served by mail, at his last known place of residence, on each presumptive heir; each beneficiary under the will offered for consideration; and each attesting witness thereto. Such notice must be mailed not less than 10 days preceding the date set for the hearing.

§ 17.5 Minors represented at hearings.

Minor heirs at law, who by the terms of the will are devised a lesser interest in the estate than they would take by descent, or whose interests are challenged, shall, with approval of the special attorney, be represented at the hearing by guardians ad litem. Such minors 14 years of age or over may indicate in writing their choice of guardians ad litem. If no such choice has been indicated on the date of the hearing, the special attorney shall make the selection and appointment.